(2018) LPELR-43991(CA)

Transcription

1 AGHOMI v. STATE CITATION: In the Court of Appeal In the Owerri Judicial Division Holden at Owerri ON WEDNESDAY, 28TH MARCH, 2018 Suit No: CA/OW/207C/2017(R) RAPHAEL CHIKWE AGBO Before Their Lordships: AYOBODE OLUJIMI LOKULO-SODIPE ITA GEORGE MBABA Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal WILSON AGHOMI - Applicant(s) And THE STATE - Respondent(s) RATIO DECIDENDI 1. APPEAL - EXTENSION/ENLARGEMENT OF TIME TO APPEAL: Instances where the trinity prayers will be required in an application for extension of time to appeal "Rights of appeal are creation of the Constitution and other relevant statutes. There is nothing such as inherent right of appeal in this country. The Applicant in my considered view undoubtedly has a right of appeal donated to him by the Constitution against the ruling of the lower Court overruling his no case submission; and it would appear clear that in so far as the intended appeal of the Applicant in the circumstances of this case is an interlocutory appeal, he was obligated by law to seek for the trinity prayers having not exercised his right of appeal (irrespective of whether it was as of right or with leave of this Court) within the period of ninety days provided by the Court of Appeal Act, 2004 for appealing against any decision of the lower Court in a criminal matter. See in this regard the concurring judgment of Fabiyi, JSC; in the case of AULT & WIBORG (NIG) LTD V. NIBEL INDUSTRIES LTD (2010) LPELR (SC) wherein his lordship stated thus: - "It is clear that the parties are at one that the judgment or the trial Court, for which the appellant desired to appeal, was a final decision. The provision of Section 241(1)(b) of the stated 1999 Constitution is applicable to this matter. It provides as follows: - 241(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases: - (a) final decisions in any civil or criminal proceedings before the Federal High Court or High Court sitting at first instance. Learned counsel for the appellant submitted with force that when an appeal is from a final decision in a case or from a decision which has finally decided the rights of the parties in the proceedings in issue, the appeal is brought as of right. I agree with him. That is the correct statement of the law.xxxxxxxxxxxxxxxx xxxxxxxx It is more so, since the proposed grounds or appeal involve questions of law alone touching on the legality or interests awarded by the trial Court. Refer to Section 241(1)(b) of the 1999 Constitution. xxxxxxxxxxxx In a final decision, where the rights of the parties have been finally determined, appeal is brought as of right. And where there is a right of appeal, no leave of Court is needed or desirable in my considered view. It seems this goes without saying. The above is often confused with interlocutory appeals wherein the rights of the parties in a case have not been decided upon. A proceeding in an action is said to be interlocutory when it is incidental to the principal object of the action, namely the judgment. An application to appeal after 14 days of such a ruling is guided by Section 25(2) of the Court of Appeal Act (No. 43) This requires the three usual prayers, often referred to as the trinity. See also Section 31 of the Supreme Court Act (No. 12) of The three substantive prayers required are: - (i) Extension of time within which to seek leave of appeal, (ii) leave to appeal; and (iii) Extension of time within which to appeal. When leave to appeal is necessary, it must be applied for and duly obtained. xxxxxxxxxxxxxxxxxxxxxxxxxxxxx It is my considered view, based on decided authorities, no leave was required by the appellant to file the appeal in question as desired. This is because it is an appeal from the final judgment of the trial High Court which finally determined the rights of the parties. With due respect to the Court below, the applicants application ought not to have been struck out. Enlargement of time to appeal ought to have been granted without much ado in the prevailing circumstances.xxxxxxxxxxxxxxxxxxx" See also the case of PETGAS RESOURCES LTD V. MBANEFO (2017) LPELR (SC)."Per LOKULO-SODIPE, J.C.A. (Pp , Paras. E-F) - read in context

2 2. APPEAL - EXTENSION/ENLARGEMENT OF TIME TO APPEAL: Whether mistake of counsel qualify as special circumstance to justify the grant of extension of time to appeal "The appeal or resort to "sin of counsel" and/or "inadvertence of counsel" has gained such currency in the practice of law in this country that this Court and indeed the Supreme Court had had cause to caution as it were, regarding what the appeal to the defence as it were entails, by making it clear that "sin of counsel" and/or "mistake of counsel" is not a magic wand and that Courts do not and are indeed not to condone inordinate delay or lack of diligence on the part of litigants and counsel. In this regard, I cannot but refer to the case of IROEGBU V. OKWORDU (1990) 6 NWLR (Pt. 159) 643 which shows that the Supreme Court has for long been careful in the application of the principle that Courts do not normally punish a litigant for the mistake or inadvertence of counsel. In the said case, his lordship Nnaemaka-Agu, JSC; said at page 669 thus: - "I think it should be regarded as settled by a long line of decided cases that the Courts do not normally punish a litigant for the mistake of his counsel... but in my opinion, the Courts will not regard this as a panacea in all cases. The Courts must be satisfied not only that the allegation of fault of counsel is true and genuine but also that it is availing, having regard to the circumstances of the particular case." See also the case of LAWAL V. UBN PLC (2008) 12 NWLR (Pt. 1102) 704 wherein this Court per Galinje, JCA; (as he then was) said thus: "xxxxxxx The applicant cited several authorities in his quest to show that the fault, which brought about the failure to file the appeal within the prescribed period, is that of counsel and that the sin of counsel should not be visited on the litigant. He in essence has pleaded Doherty Rule, where it was held that the sin of counsel should not be visited on the litigant - Doherty v. Doherty (1964) NMLR 144. It must be acknowledged that the Doherty Rule is without doubt a judicial expedience (sic) and although convenient must not be jeopardized by indiscriminate applications. To sustain the plea therefore, the applicant needs to show that he acted promptly in giving instructions to his solicitor to file the appeal but that the inadvertence or negligence of the solicitor caused the delay. See Gati v. Shoosmith (1939) 3 All ER 916; Almred v. Trade Bank Plc (1996) 3 NWLR (Pt. 437) 445. Even when the appellant acted promptly in instructing his counsel, he is still expected to ensure that the counsel carried out the instruction. This is so because a litigant who fails to ascertain if his counsel has taken the necessary steps to bring his appeal is as well negligent. See University of Lagos. v. Aigoro (1984) 11 SC 152, (1985) 1 NWLR (Pt.1) 143. xxxxxxxxxxxx" Guided by the position of the law as enunciated in the cases cited above, I had cause to say in the ruling of this Court delivered on 20/6/2008 in APPEAL NO. CA/A/260/M/07 - THE HON. MINISTER OF THE FEDERAL & ANOR. V. MALLAM MAGAJI ADAMU ABDULLAHI & ANOR. (a case dealing with leave to appeal and sundry orders just like the instant case), thus: - "I sincerely believe that there is a world of difference between ineptitude or incompetence of counsel and mistake of counsel. A counsel who by his own admission does not know the correct position of the law in respect of a given matter can hardly be allowed to take refuge under the principle of "sin of counsel". Whether a decision of a Court is final or not, is not a recondite issue given the plethora of cases on how this can be determined. It is my view that a counsel who claims not to know when a decision of a Court is interlocutory or final has put his own competence in issue. Incompetence of counsel transcends mistake of counsel. I know of no decided case in which the Courts have allowed the disclosure by a lawyer that he misconstrued the status of a decision of a Court as 'sin of counsel' that is availing. 'Sin of counsel' have readily been found availing where a counsel knew the right line or course of action to take in respect of a matter but due to some collateral or incidental lapses on his part he did not take the step within prescribed time. To further compound the situation in the instant case, is the fact that no appeal was even lodged against the decision of the lower Court within the period prescribed for doing so against final decisions despite the claim of Applicants' counsel that she misconstrued the decision being sought to be appealed against as a final one. Similarly, the point in time when Applicants' counsel discovered that the decision being sought to be appealed against was not a final decision was never disclosed." The situation in the instant case is almost on all fours with the situation in the case cited hereinbefore. The Applicant claimed that his counsel thought that the appeal against the no case submission was to be filed within 14 days as he considered the appeal to be an interlocutory appeal; but could not file the same as a result of the strike by the staff of the Imo State Judiciary that started on 2/10/2015 and called off on 7/12/2015. It is apparent from the depositions of the Applicant that even after the strike was called off on 7/12/2015, Applicant's counsel who is said to have conceived that he had 14 days within which to file the appeal never acted immediately to achieve the purpose; and when he even decided to take steps to carry out his instruction, the said counsel in complete disregard of the settled position of the law that a lower Court cannot extend the time within which an appeal can be lodged against its decision (although it can grant leave to appeal against its decision within the period prescribed by law for appealing against such decision), decided to approach both this Court and the lower Court for the purpose of initiating Applicant's intended appeal after the time prescribed by law for lodging the appeal and thereby foisted on the two Courts (i.e. this Court and the lower Court) a situation that made it impossible for the initiating process of the appeal to be entertained and which resulted in the striking out of one of two motions by this Court (i.e. the motion filed before it) on 23/1/2017. Furthermore, and in apparent display of lack of prowess on the part of Applicant's counsel as it were, the motion that was filed before the lower Court remained before the said Court until 6/4/2017 when the said Court struck it out on the ground that the motion for extension of time within which to appeal and leave to appeal filed by the Applicant was outside the assignment order to conclude the hearing of the case granted to it; with the case being adjourned till 22/6/2017, 29/6/2017 and 6/7/2017 for hearing. The circumstances leading to the striking out of the motion in question by the lower Court as portrayed in Exhibit 'A' attached to the further affidavit, in my considered view clearly belie the deposition of the Applicant to the effect that the position with respect to the time within which he ought to have filed his appeal only became clearer after the filing of the motion before the lower Court on 26/1/2016. This is because I am of the considered view that Applicant's counsel has no basis in law for not knowing the period within which he ought to have lodged an appeal against a ruling in a no case submission as the Applicant would want this Court to believe. The aforementioned Exhibit 'A' simply portrayed the lower Court as having seen through the antics of the Applicant to forestall progress in the trial of the charge he faced by the filing of an incompetent motion before the said Court. It was after the similar motion filed before the lower Court was struck out on 6/4/2017 (a period of over a year three months after the ruling of the lower Court) that the Appellant now kick started another process before this Court to initiate an appeal against the ruling of the lower Court dismissing his no case submission on 30/9/2015. I do not see any mistake of counsel from all that has been narrated above, but a clear design on the part of the Applicant and his counsel not to have the case before the lower Court progress by using the process of Court improperly. A calculated attempt by a counsel due to lack of prowess on his part and or acting out the script of the Applicant, to clog or impeded the course of justice by creating situations that have rendered it impossible to initiate the Applicant's appeal and thereby putting on hold or surreptitiously staying or frustrating the continued hearing of the charge preferred against the Applicant as per the assignment order issued the lower Court at least since 6/4/2017; while the said Applicant continues to enjoy bail, in my considered view clearly qualifies as an abuse of the process of Court. This should not be encouraged. Processes found to be in "abuse of Court process" by the filing of multiple processes are routinely struck out. However, an order of dismissal of the process can also be properly made depending on the nature of abuse that is found to exist. See the case of ARUBO V. AIYELERO (1993) 3 NWLR (Pt. 280) 126 wherein the Supreme Court said per Nnaemeka-Agu, JSC; thus: - "xxxxxx So, unlike Order 18 Rule 19 of the R.S.C. (1985), Order 16 Rule 25 of the Lagos State Rules has no provision for a suit to be dismissed if it is an abuse of process. But then, every superior Court of record in Nigeria is conferred by Section 6(6) (a) of the 1979 Constitution with "all inherent power and sanctions of a Court of law. Now inherent jurisdiction or power is a necessary adjunct of the powers conferred by the rules and is invoked by Court of law to ensure that the machinery of justice is duly applied and properly lubricated and not abused. One most important head of such inherent powers is abuse of process, which simply means that the process of the Court must be used bona fide and properly and must not be abused. Once a Court is satisfied that any proceedings before it is an abuse of process it has the power, indeed the duty, to dismiss it. See on this, Wllis v. Earl of Beauchamp (188 xxxxxxxxxxxxxxxxxxxxxxxxx Now once a Court is satisfied that the proceedings before it amounts to an abuse of process, it has the right, in fact the duty, to invoke its coercive powers to punish the party which is in abuse of its process. Quite often, that power is exercisable by a dismissal of the action which constitutes the abuse. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx It is not correct, as learned counsel has done to describe an abuse of process as an irregularity. It is a much more fundamental vice which is usually punished with dismissal. In this case, it is rooted in public policy as expressed in the latin maxim, "nemo debetbisvexari pro una et eadem cause xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx." See also the case of OJO V. A-G OF OYO STATE (2008) 15 NWLR (Pt. 1110) 577, (2008) 6-7 SC (Pt. II) 54; wherein the Supreme Court dwelling on whether instituting a multiplicity of actions amounts to abuse of judicial process when same is not supported by law or where it is premised on frivolity or recklessness and the proper or appropriate order to make, said per Mahmud Mohammed, JSC; (as he then was) thus: - "In resolving the only issue on abuse of process of Court arising for determination in this appeal, it is significant to observe that the abuse of Court process or abuse of judicial process as the case may be, may be manifest in both a proper or improper use of the judicial process in litigation. However, the employment or use of judicial process is only regarded generally as an abuse when a party improperly uses the issue of judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. For example, in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. xxxxxxxxxxxxxxxxxx It is also an abuse of process where there is no iota of law supporting a Court process or where it is premised on frivolity or recklessness. In other words, it is the inconvenience and inequities involved in the aims and purposes of the action that constitutes abuse of process. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Applying the decision of this Court in the case of Arubo v. Aiyelero (1993) 3 N.W.L.R (Pt. 280) 126 at 142, the appropriate order to make where a party had abused the process of the Court, is the dismissal of the abusive action as was done by the trial Court and affirmed by the Court below. xxxxxxxxxxxxxxxxxxxxxxxxxxxx" Guided by the above cited two authorities, and as I have no difficulty whatsoever in finding that all the Applicant has set out to do or achieve (even though portraying his inability to have properly initiated his desire to appeal to the incompetence of counsel as it were), is simply to frustrate the continued hearing of the charge preferred against him, apparently in the hope that something might happen that would lead to the commencement of the said trial de novo (a development which has been properly taken care of by the assignment order that has been issued to the lower Court in respect of the charge), I am of the considered view that an order dismissing the Applicant's motion would better serve the course of justice and achieve the expeditious completion of the trial of the Applicant even as he continues to enjoy his freedom on bail to the chagrin of the Respondent and the victim of the offence of who was aged 3 years at the time of the commission of the alleged defilement. Accordingly, the instant motion is hereby dismissed."per LOKULO-SODIPE, J.C.A. (Pp , Paras. E-E) - read in context 3. APPEAL - EXTENSION/ENLARGEMENT OF TIME TO APPEAL: Conditions to be satisfied by an applicant seeking for extension of time to appeal "The Applicant (who is seeking the trinity prayers) whether or not the Respondent is opposed to the motion, by law must not only give good and substantial reasons for failing to appeal within the prescribed period but also place before the Court grounds of appeal which prima facie show good cause why the appeal should be heard. See Order 6 Rule 9(1) of the 2016 Rules of this Court. In other words, before the indulgence being sought by the Applicant can be properly granted (as Courts are not supposed to grant indulgences to parties as of course) he must give good and substantial reasons for not lodging his appeal within 90 days (as provided by Section 24(2)(b) of the Court of Appeal Act, 2004) of the delivery of the ruling on the no case submission in question and must also place before the Court sufficient materials to enable the Court exercise its discretion in his favour. The two conditions having regard to the plethora of cases on the provisions of the Rules of this Court earlier referred to must co-exist. See the case of WILLIAMS V. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) LPELR (SC) wherein the Supreme Court dwelling on the principles guiding the grant of an application for extension/enlargement of time to appeal; said per Idigbe, JSC; thus: - "When a Court is called upon to make an order for extension of time within which to do certain things (i.e. extension of the time prescribed by the Rules of Court for taking certain procedural steps), the Court ought always to bear in mind that Rules of Court must prima facie be obeyed and that it, therefore, follows that in order to justify the exercise of the Court's discretion in extending the time within which a procedural step has to be taken there must be some material upon which to base the exercise of that discretion; any exercise of the Court's discretion where no material for such exercise has been placed before the Court would certainly give a party in breach of the Rules of Court uninhibited right to extension of time and the provisions as to time within which to take procedural steps set out in the Rules of Court would indeed, in such circumstances, have no legal content." See also the cases of ADIGWE V. FRN (2015) LPELR (SC), and YUSUF V. ABUJA INVESTMENT & PROPERTY DEVELOPMENT CO. LTD (2009) LPELR (CA) amongst many others."per LOKULO-SODIPE, J.C.A. (Pp , Paras. A-A) - read in context

3 4. APPEAL - EXTENSION/ENLARGEMENT OF TIME TO APPEAL: Instances where an application for extension of time within which to appeal will not be granted "It is clear from the above re-produced grounds of appeal that the Applicant's grounds of appeal bring to the fore the correctness of the ruling of the lower Court vis-avis the evidence of some of the witnesses fielded by the prosecution. The Applicant has however not placed before the Court the evidence of the affected witnesses he has relied upon in couching his grouses as contained in the grounds of appeal. The Applicant would appear to be of the view that all that is required to enable the Court determine whether or not the grounds of appeal prima facie show good cause why the appeal should be heard is to place only the ruling of the lower Court sought to be appealed against and the proposed grounds of appeal before the Court. This cannot be so in all cases and given the peculiar facts of a case, an applicant for extension of time within which to appeal and leave to appeal is required to place all material processes before the Court for the Court to come to a conclusion as to whether the grounds of appeal prima facie show good cause why the appeal should be heard. Granted that the position of the law is that it is not for the Court at this stage to determine the appeal, I however find it difficult to appreciate how the Applicant expects the Court to come to a decision as to whether the grounds of appeal are such that show why the appeal should be heard without exhibiting the transcripts of the evidence adduced by the prosecution. The Evidence Act Cap. E 11, LFN in Section 128(1) in my considered view does not expect that any part of a judicial proceeding would be referred to without at least the secondary evidence of such being placed before the Court. Flowing from all that has been stated is that the Applicant in my considered view, has also failed to show grounds of appeal which prima facie show why the appeal should be heard. If I had not hereinbefore found the instant motion to be in abuse of the process of Court, it is therefore liable to be dismissed as the Applicant has not established the two conditions he must by law establish to entitle him to the grant of the relief sought therein."per LOKULO-SODIPE, J.C.A. (Pp , Paras. E-D) - read in context 5. PRACTICE AND PROCEDURE - ABUSE OF COURT/JUDICIAL PROCESS(ES): Essential elements that would constitute abuse of Court process "In other words, I am of the considered view that if the concept of abuse of Court process were restricted to the filing of multiple processes before different Courts, for the same or similar reliefs, the issue of abuse of Court process the Respondent raised by some of the depositions in its counter affidavit would have fizzled into nothingness inasmuch as the motion before the lower Court had been struck out by that Court on 6/4/2017 before the instant motion was filed in this Court on 8/6/2017. However, the concept of abuse of Court process is not restricted to the filing of multiple processes before different Courts for the same or similar reliefs. See in this regard the case of OGOEJEOFO V OGOEJEOFO (2006) 1 SC (Pt. I) 157 wherein the Supreme Court per Mahmud Mohammed, JSC; (as he then was) said thus: - "xxxxxmy task in resolving the only issue for determination in this appeal is first to ascertain what constitutes an abuse of the process of Court and secondly, to determine within the confine of the evidence adduced by the appellant in the affidavit in support of her preliminary objection, whether or not a case of abuse of the process of Court had been made out to justify the striking out of the respondent's suit against the appellant. The questions of what actually constitutes and what does not constitute an abuse of the process of Court have been considered and answered by this Court in several of its decisions. One of the leading cases on this subject in which Karibi-Whyte, JSC reviewed several earlier decision (sic) of this Court is the case of Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 at where he said: - "The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. It is recognised that the abuse of the process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. xxxx Thus, the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right, per se. The abuse consists in the intention, purpose, and aim of the person exercising the right to harass, initiate and annoy the adversary, and interfere with the administration of justice; such as instituting different actions between the same parties simultaneously in different Courts, even though on different grounds. xxxxxxx Similarly so held was where two similar processes were used in respect of the exercise of the same right. Namely a cross-appeal, and a respondent's notice. xxxxx This Court has also held as an abuse of the process, an application for adjournment by a party to an action to bring an application to Court for leave to raise issues of fact already decided by Courts below..." In Okafor v. A.-G., Anambra State (1991) 6 NWLR (Pt. 200) 659 at 681, Karibi-Whyte, JSC again said on the same subject: - "It is the law that multiplicity of actions on the same matter may constitute an abuse of the process of the Court. But this is so only where the action is between the same parties with respect to the same subject matter." Other cases defining what amounts to an abuse of the process of Court or judicial process include Doma v. Adamu (1999) 4 NWLR (Pt. 598) 311; Benaplastic v. Vasilyev (1999) 10 NWLR (Pt. 624) 620; A.-G., Ondo State v. A.-G., Ekiti State (2001) 17 NWLR (Pt. 743) 706 at 771 and African Reinsurance Corporation v. JDP Construction Nigeria Ltd. (2003) 13 NWLR (Pt. 838) 609 at However this Court recently in Mobil Production Nigeria Unlimited v. Monokpo (2003) 18 NWLR (Pt.852) 346 at , held that filing of two motions which do not necessarily seek the same or similar reliefs, though in the same case between the same parties would not amount to an abuse of the process of the Court. xxxxxxx."per LOKULO- SODIPE, J.C.A. (Pp. 7-11, Paras. B-B) - read in context

4 AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.(Delivering the Lead Ruling): This ruling is in respect of a motion dated 6/6/2017 and filed on 8/6/2017 by the Applicant and in which he seeks for the following orders: - 1. Extension of time within which the Applicant may seek leave to appeal against the Ruling of the Court on No Case submission delivered on 30th day of September, Leave to appeal against the said Ruling. 3. Extension of time to appeal against the Ruling. The grounds for making the application as set out in the motion read thus: - 1. Time to file appeal expired after 90 (ninety) days of delivery of Ruling. 2. Counsel did not utilize the 90 (ninety) days window due to inadvertence to the time within which to appeal. 3. Failure to file appeal within time was due to counsel s inadvertence. The motion was entertained on 15/1/2018 with learned counsel for the Applicant, V.I. Ekeh, Esq., in urging the Court to grant the reliefs sought therein, relying on the supporting affidavit and further affidavit filed in the motion. In the same vein,

5 1

6 learned Law Officer, Miss. Uche S. Chukwu (State Counsel) relied on the counter affidavit filed on 22/6/2017 in the motion, in opposing same and urged the Court to dismiss same. In the supporting affidavit of the motion, the Applicant deposed to the effect that he was on 12/3/2012 arraigned on a charge of defilement in Charge No. HO/14C/2011 and that he pleaded not guilty to the charge. That he made a no case submission on 8/6/2015 after the prosecution closed its case at the trial of the charge; and that in its ruling delivered on 30/9/2015, the lower Court overruled the no case submission and called on him to enter his defence. The Applicant further disclosed in the supporting affidavit, that being dissatisfied with the ruling of the lower Court, he instructed his counsel to appeal against same. That shortly after the delivery of the ruling, the staff of the Imo State Judiciary embarked on a strike action on 2/10/2015 and that the strike lasted till 7/12/2015. That his counsel conceived that he (Applicant) had 14 days within which he was to appeal against the ruling of the lower Court as the appeal is an interlocutory appeal; and that the appeal 2

7 against the ruling in question could not be lodged because of the strike. That the position regarding the time or period within which he is to appeal against the ruling of the lower Court only became clearer to his counsel after he filed a motion similar to the instant one, before the lower Court on 26/1/2016. That his counsel informed him that the time within which he ought to have appealed expired on 27/12/2015 but that he (i.e. counsel) did not file the appeal due to his inadvertence. Having expressly given inadvertence of counsel as the reason for the non-filing of the appeal against the ruling of the lower Court within the prescribed period, the Applicant further disclosed that his counsel had filed a motion similar to the instant one before this Court before now, but that the said motion was withdrawn and duly struck out by this Court on 23/1/2017 upon the objection of the Respondent to the same on the ground that it was an abuse of Court process. In the counter affidavit of the Respondent it was disclosed to the effect that the instant motion was served on it on 16/6/2017. That the time within which the Applicant should have appealed 3

8 against the ruling of the lower Court delivered on 30/9/2015 ended on 29/12/2015. It was further disclosed in the counter affidavit to the effect that the Applicant had on 25/1/2016 and 23/8/2016 respectively filed motions similar to the instant one, before the lower Court and this very Court. That while the motion filed on 23/8/2016 before this Court, was withdrawn and duly struck out on 23/1/2017 consequent to the objection that the said motion constituted an abuse of Court process; the one that was filed before the lower Court on 25/1/2016, is still pending before that Court till date. There is also deposition in the counter affidavit to the effect that the Applicant who had been on bail since after his plea was taken, is improperly using the issuance of judicial process to the irritation and annoyance of the victim s family as well as the Respondent. That the Applicant deliberately went to sleep for almost six months after the similar motion he made to this Court was struck out on 23/1/2017 and has also purposely allowed the similar motion he filed before the lower Court on 25/1/2016, to continue to pend before the said lower Court. The Respondent 4

9 concluded the counter affidavit by deposing that it would be grossly prejudiced by the grant of the instant motion. The Applicant filed a further affidavit in which he disclosed to the effect that the motion similar to the instant one, that was filed before the lower Court was struck out by the said Court on 6/4/2017 to the knowledge of the prosecuting counsel who did not oppose the withdrawal and a certified copy of the proceedings for the said day was annexed to the further affidavit as Exhibit A. The Applicant further deposed to the effect that after his first motion filed in this Court was struck out on 23/1/2017, he could not bring another motion before the instant one until he had taken steps to withdraw the one he had before the lower Court and which was duly withdrawn on 6/4/2017 before the instant one was filed on 8/6/2017. I am of the considered view that a part of the Respondent s opposition to the instant motion is on the basis that it is an abuse of the process of Court just as it opposed the Applicant s motion that was filed before this Court and which was struck out on 23/1/2017 on the same ground. I 5

10 must however observe that given Exhibit A (which is the proceedings before the lower Court on 6/4/2017) annexed to the further affidavit, it is simply incredible that the Respondent could have deposed in a counter affidavit sworn to and filed on 22/6/2017 to the effect that the Applicant had a motion similar to the instant one still pending before the lower Court as at the time of the filing of the instant motion. I am of the considered view that the deposition of the Respondent to this effect is incredible because, Exhibit A in question clearly shows that a motion in which the Applicant sought for extension of time for leave to appeal and leave to appeal was struck out by the said Court on the ground that the said motion is outside the assignment order granted to the Court and that Rev. Fr. O.O.N. Mbagwu not only appeared for the Respondent on the said day but even opposed the application of the Applicant s counsel to withdraw the said motion. While I cannot sensibly fathom any reason for such deposition by the Respondent, it goes without saying that the instant motion cannot properly be struck out 6

11 because of the existence of a similar motion before the lower Court as at the time it was filed. The Applicant clearly had no motion similar to the instant one before the lower Court as at the time of the filing of the instant one. Be that as it may! In other words, I am of the considered view that if the concept of abuse of Court process were restricted to the filing of multiple processes before different Courts, for the same or similar reliefs, the issue of abuse of Court process the Respondent raised by some of the depositions in its counter affidavit would have fizzled into nothingness inasmuch as the motion before the lower Court had been struck out by that Court on 6/4/2017 before the instant motion was filed in this Court on 8/6/2017. However, the concept of abuse of Court process is not restricted to the filing of multiple processes before different Courts for the same or similar reliefs. See in this regard the case of OGOEJEOFO V OGOEJEOFO (2006) 1 SC (Pt. I) 157 wherein the Supreme Court per Mahmud Mohammed, JSC; (as he then was) said thus: - xxxxxmy task in resolving the 7

12 only issue for determination in this appeal is first to ascertain what constitutes an abuse of the process of Court and secondly, to determine within the confine of the evidence adduced by the appellant in the affidavit in support of her preliminary objection, whether or not a case of abuse of the process of Court had been made out to justify the striking out of the respondent's suit against the appellant. The questions of what actually constitutes and what does not constitute an abuse of the process of Court have been considered and answered by this Court in several of its decisions. One of the leading cases on this subject in which Karibi-Whyte, JSC reviewed several earlier decision (sic) of this Court is the case of Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 at where he said: - "The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. It is recognised that the abuse of the process may lie in both a proper or improper use of 8

13 the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. xxxx Thus, the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right, per se. The abuse consists in the intention, purpose, and aim of the person exercising the right to harass, initiate and annoy the adversary, and interfere with the administration of justice; such as instituting different actions between the same parties simultaneously in different Courts, even though on different grounds. xxxxxxx Similarly so held was where two similar processes were used in 9

14 respect of the exercise of the same right. Namely a cross-appeal, and a respondent's notice. xxxxx This Court has also held as an abuse of the process, an application for adjournment by a party to an action to bring an application to Court for leave to raise issues of fact already decided by Courts below.." In Okafor v. A.-G., Anambra State (1991) 6 NWLR (Pt. 200) 659 at 681, Karibi-Whyte, JSC again said on the same subject: - "It is the law that multiplicity of actions on the same matter may constitute an abuse of the process of the Court. But this is so only where the action is between the same parties with respect to the same subject matter." Other cases defining what amounts to an abuse of the process of Court or judicial process include Doma v. Adamu (1999) 4 NWLR (Pt. 598) 311; Benaplastic v. Vasilyev (1999) 10 NWLR (Pt. 624) 620; A.-G., Ondo State v. A.-G., Ekiti State (2001) 17 NWLR (Pt. 743) 706 at 771 and African Reinsurance Corporation v. JDP Construction Nigeria Ltd. (2003) 13 NWLR (Pt. 838) 609 at However this Court recently in Mobil Production Nigeria Unlimited v. 10

15 Monokpo (2003) 18 NWLR (Pt.852) 346 at , held that filing of two motions which do not necessarily seek the same or similar reliefs, though in the same case between the same parties would not amount to an abuse of the process of the Court. xxxxxxx. It would therefore appear that the first task I should undertake in this ruling (even though the situation herein is not that of the existence of different subsisting similar motions) is to determine whether the instant motion in the circumstances presented before the Court constitutes an abuse of Court process in any manner and whether the Applicant is entitled to the grant of the motion in the event it is not found to be an abuse of Court process. Rights of appeal are creation of the Constitution and other relevant statutes. There is nothing such as inherent right of appeal in this country. The Applicant in my considered view undoubtedly has a right of appeal donated to him by the Constitution against the ruling of the lower Court overruling his no case submission; and it would appear clear that in so far as the intended appeal 11

16 of the Applicant in the circumstances of this case is an interlocutory appeal, he was obligated by law to seek for the trinity prayers having not exercised his right of appeal (irrespective of whether it was as of right or with leave of this Court) within the period of ninety days provided by the Court of Appeal Act, 2004 for appealing against any decision of the lower Court in a criminal matter. See in this regard the concurring judgment of Fabiyi, JSC; in the case of AULT & WIBORG (NIG) LTD V. NIBEL INDUSTRIES LTD (2010) LPELR 639 (SC) wherein his lordship stated thus: - It is clear that the parties are at one that the judgment or the trial Court, for which the appellant desired to appeal, was a final decision. The provision of Section 241(1)(b) of the stated 1999 Constitutionis applicable to this matter. It provides as follows: - 241(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases: - (a) final decisions in any civil or criminal proceedings before the Federal High Court or High Court sitting at first instance. Learned counsel 12

17 for the appellant submitted with force that when an appeal is from a final decision in a case or from a decision which has finally decided the rights of the parties in the proceedings in issue, the appeal is brought as of right. I agree with him. That is the correct statement of the law.xxxxxxxxxxxxxxxx xxxxxxxx It is more so, since the proposed grounds or appeal involve questions of law alone touching on the legality or interests awarded by the trial Court. Refer to Section 241(1)(b) of the 1999 Constitution. xxxxxxxxxxxx In a final decision, where the rights of the parties have been finally determined, appeal is brought as of right. And where there is a right of appeal, no leave of Court is needed or desirable in my considered view. It seems this goes without saying. The above is often confused with interlocutory appeals wherein the rights of the parties in a case have not been decided upon. A proceeding in an action is said to be interlocutory when it is incidental to the principal object of the action, namely the judgment. An application to appeal after 14 days of such a ruling is guided by Section 25(2) of the Court of Appeal Act (No. 13

18 43) This requires the three usual prayers, often referred to as the trinity. See also Section 31 of the Supreme Court Act (No. 12) of The three substantive prayers required are: - (i) Extension of time within which to seek leave of appeal, (ii) leave to appeal; and (iii) Extension of time within which to appeal. When leave to appeal is necessary, it must be applied for and duly obtained. xxxxxxxxxxxxxxxxxxxxxxxxxxxxx It is my considered view, based on decided authorities, no leave was required by the appellant to file the appeal in question as desired. This is because it is an appeal from the final judgment of the trial High Court which finally determined the rights of the parties. With due respect to the Court below, the applicants application ought not to have been struck out. Enlargement of time to appeal ought to have been granted without much ado in the prevailing circumstances.xxxxxxxxxxxxxxxxxxxxxx See also the case of PETGAS RESOURCES LTD V. MBANEFO (2017) LPELR (SC). It is his right of appeal 14

19 donated by the Constitution that the Applicant is now ostensibly seeking to exercise (and I have used the word ostensibly most advisedly). The Applicant in my considered view in the exercise of that right however cannot be seen to be interfering with the smooth administration of criminal justice. This is particularly so given the current judicial attitude that cases should not drag on for too long; more so criminal trials. Having regard to the depositions in the supporting affidavit of the instant motion that have been highlighted hereinbefore, it is apparent that the Appellant is relying on sin of counsel or inadvertence of counsel for the circumstances surrounding the instant application and particularly for not initiating his appeal within the period provided for lodging the appeal by law. The appeal or resort to sin of counsel and/or inadvertence of counsel has gained such currency in the practice of law in this country that this Court and indeed the Supreme Court had had cause to caution as it were, regarding what the appeal to the defence as it were entails, by making 15

20 it clear that sin of counsel and/or mistake of counsel is not a magic wand and that Courts do not and are indeed not to condone inordinate delay or lack of diligence on the part of litigants and counsel. In this regard, I cannot but refer to the case of IROEGBU V. OKWORDU (1990) 6 NWLR (Pt. 159) 643 which shows that the Supreme Court has for long been careful in the application of the principle that Courts do not normally punish a litigant for the mistake or inadvertence of counsel. In the said case, his lordship Nnaemaka-Agu, JSC; said at page 669 thus: - I think it should be regarded as settled by a long line of decided cases that the Courts do not normally punish a litigant for the mistake of his counsel... but in my opinion, the Courts will not regard this as a panacea in all cases. The Courts must be satisfied not only that the allegation of fault of counsel is true and genuine but also that it is availing, having regard to the circumstances of the particular case. See also the case of LAWAL V. UBN PLC (2008) 12 NWLR (Pt. 1102) 704 wherein this Court per Galinje, JCA; (as he then was) said thus: 16

21 xxxxxxx The applicant cited several authorities in his quest to show that the fault, which brought about the failure to file the appeal within the prescribed period, is that of counsel and that the sin of counsel should not be visited on the litigant. He in essence has pleaded Doherty Rule, where it was held that the sin of counsel should not be visited on the litigant Doherty v. Doherty (1964) NMLR 144. It must be acknowledged that the Doherty Rule is without doubt a judicial expedience (sic) and although convenient must not be jeopardized by indiscriminate applications. To sustain the plea therefore, the applicant needs to show that he acted promptly in giving instructions to his solicitor to file the appeal but that the inadvertence or negligence of the solicitor caused the delay. See Gati v. Shoosmith (1939) 3 All ER 916; Almred v. Trade Bank Plc (1996) 3 NWLR (Pt. 437) 445. Even when the appellant acted promptly in instructing his counsel, he is still expected to ensure that the counsel carried out the instruction. This is so because a litigant who fails to 17

22 ascertain if his counsel has taken the necessary steps to bring his appeal is as well negligent. See University of Lagos. v. Aigoro (1984) 11 SC 152, (1985) 1 NWLR (Pt.1) 143. xxxxxxxxxxxx Guided by the position of the law as enunciated in the cases cited above, I had cause to say in the ruling of this Court delivered on 20/6/2008 in APPEAL NO. CA/A/260/M/07 THE HON. MINISTER OF THE FEDERAL & ANOR. V. MALLAM MAGAJI ADAMU ABDULLAHI & ANOR. (a case dealing with leave to appeal and sundry orders just like the instant case), thus: - I sincerely believe that there is a world of difference between ineptitude or incompetence of counsel and mistake of counsel. A counsel who by his own admission does not know the correct position of the law in respect of a given matter can hardly be allowed to take refuge under the principle of sin of counsel. Whether a decision of a Court is final or not, is not a recondite issue given the plethora of cases on how this can be determined. It is my view that a counsel who claims not to know when a decision of a Court is interlocutory or final has put his own competence in 18

23 issue. Incompetence of counsel transcends mistake of counsel. I know of no decided case in which the Courts have allowed the disclosure by a lawyer that he misconstrued the status of a decision of a Court as sin of counsel that is availing. Sin of counsel have readily been found availing where a counsel knew the right line or course of action to take in respect of a matter but due to some collateral or incidental lapses on his part he did not take the step within prescribed time. To further compound the situation in the instant case, is the fact that no appeal was even lodged against the decision of the lower Court within the period prescribed for doing so against final decisions despite the claim of Applicants counsel that she misconstrued the decision being sought to be appealed against as a final one. Similarly, the point in time when Applicants counsel discovered that the decision being sought to be appealed against was not a final decision was never disclosed. The situation in the instant case is almost on all fours with the situation in the case cited hereinbefore. The Applicant claimed that his 19

24 counsel thought that the appeal against the no case submission was to be filed within 14 days as he considered the appeal to be an interlocutory appeal; but could not file the same as a result of the strike by the staff of the Imo State Judiciary that started on 2/10/2015 and called off on 7/12/2015. It is apparent from the depositions of the Applicant that even after the strike was called off on 7/12/2015, Applicant s counsel who is said to have conceived that he had 14 days within which to file the appeal never acted immediately to achieve the purpose; and when he even decided to take steps to carry out his instruction, the said counsel in complete disregard of the settled position of the law that a lower Court cannot extend the time within which an appeal can be lodged against its decision (although it can grant leave to appeal against its decision within the period prescribed by law for appealing against such decision), decided to approach both this Court and the lower Court for the purpose of initiating Applicant s intended appeal after the time prescribed by law for lodging the appeal and thereby foisted on the two Courts (i.e. this Court and 20