|
In The Supreme Court
of
On Friday, the 25th day of
February 2008
Before Their
Lordships
S.C. 141/2005
Between
And
Judgement of the Court
Delivered by
Pius Olayiwola
Aderemi J.S.C
The appeal is against the
judgment of the Court of Appeal [Calabar
Division] in appeal No CA/C/77/2002; Okon
Bassey Ebe v
Commissioner of Police
delivered on the 29th of November 2004 in which the court below
had allowed the appeal of the appellant [Commissioner of Police] before it,
set aside the decision of the High Court (sitting as an appellate court)
demanding for the invalidation of the fiat issued by the Attorney-General of
Cross Rivers State and also set aside the order made by the appellate High
Court striking out the appeal for failure to comply with the provisions of
Order 44 Rule 10 (1) of the Cross
River State High Court Civil Procedure Rules, 1987.
Briefly, the facts leading to
this appeal are thus: - four persons including the appellant were charged
before the Chief Magistrate's Court, Akpap
Okonyong 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 there from 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 invalidation 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
It is the appeal against the
said judgment of the court below that is now before us. Both parties filed
their respective briefs of argument. In the appellant's brief of argument
filed on the 22nd of May 2006, only one issue was identified for
determination by this court, and as set out in the said brief, it is as
follows: -
"Whether the Court of Appeal
was right in setting aside the order of the High Court striking out the
appeal of the respondent for failure of the respondent to comply with
Order 44 Rule 10 (1) of Cross River
State High Court Civil Procedure Rules 1987?"
While the respondent adopted
the only issue raised up by the appellant, he modified same. The modified
issue as couched in the brief of the respondent is in the following terms: -
"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?"
When the appeal came to us for
argument on the 1st of
November 2007, Chief Ogbodu,
learned counsel for the appellant referred to, adopted and relied on the
appellant's brief filed on 22nd May 2006 and he urged that the
appeal be allowed. Mr.
Ukweni, learned counsel for the respondent, for
his part, referred to, adopted and relied on the respondent's brief filed on
20th July 2006; he urged that the appeal be dismissed and the
judgment of the court below be affirmed.
The issues raised by the
appellant and respondent are materially the same. Before I start the
consideration, I am of the view that I should reproduce the provisions of
Order 44 Rule 10(1) of the High Court
Civil Procedure Rules; they are thus: -
"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."
The above provisions of the
rules of court confer some degree of discretion on the
judex; in the instant case, what
is conferred is a judicial discretion. 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. See
Unilag
& Ors v Olaniyan & Ors.
(1985) 1 S.C 295. It therefore follows that where a judicial
discretion has been exercised bona
fide, uninfluenced by any irrelevant considerations and not arbitrarily
or illegally, the general rule is that an appellate court, the like of this
court, will not ordinarily interfere- See
Saffieddine
v Commissioner of Police (1965) 1 ALL NLR 54; Solanke
v Ajibola (1968) 1 ALL NLR 46 and Mobil Oil v
Federal Board of Inland Revenue (1977) 3 S-C. 97. Legal discretion or
what is termed in Latin Maxim as "Legalis
Discretio" requires a court or a judge to
administer justice according to prescribed rules of law. In applying the
provisions of Order 44 Rule 10 (1) of
the High Court Civil Procedure Rules, the judge of the High Court of
Cross River State sitting on appeal on the case reasoned thus: -
"Let
me on
my own
introduce or add to the
cannon of interpretation the
element of commonsense.
Applying this principle to that provision, it would
make no sense to expect the lawyer
to be present at any or all
adjournments be they for mention or even
interlocutory ruling as well
as the final judgment of the
appeal. It seems to me that
the plausible instances when both the lawyer and the
appellant have to appear
simultaneously are hearing or
argument of the appeal; but the appellant is expected to appear in all other
respects. If he fails then
the consequences of the
infringement of that provision lies on his door-step
personally.
I hold that the cup
of his absence will immutably be taken
by him and will not pass to his
lawyer or be shared
by both of them
..........................................
For non-appearance of the appellant on all adjournment dates so far before
me, this appeal shall be and is hereby struck-out."
It should be noted that the
appellant before the High Court sitting on appeal is the Commissioner of
Police. The court below
(Court of Appeal) before whom the appeal against
the judgment of the High Court came, on
the issue of non-appearance of the appellant said and I quote: -
"I
therefore hold that the
insistence
on the personal appearance of the
Commissioner of Police, who was the appellant, before the
lower court, was absolutely
wrong because a counsel was
regularly appearing for the appellant being a criminal appeal
.....................................
With the cited precedents laid by the apex court, I am sure that
the lower
court judge,
was
slavish to
Order 44 Rule
10 (1)
supra
with the intent to scuttle the appeal by striking out
same on
the wrong
basis that, the legal practitioner,
had no right to announce
appearance for the appellant - Commissioner of Police.
In my final
analysis, I allow the appeal of the
appellant I set aside, the
decision demanding for a revalidation of
the fiat issued by the
Attorney-General of
I
hold that
the appeal is
still valid and should be relisted
in the court's cause list
for hearing before another judge as the Chief Judge of
As I have said above, it is
the appeal against the judgment of the court below the extract of which I
have reproduced above that is now before us. 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. The court below has evaluated the printed evidence and
made its inferences from established facts. I cannot fault that exercise.
There is no law compelling any party to appear physically in court in the
circumstances of the facts of this case. All that is necessary, in the
interest of good administration of justice, is that the working of a court
of law is not stalled by non-appearance or even the appearance of a party to
the court before it. See
Kehnde
v Ogunbunmi & Ors. (1968)
NMLR 37 and
Atake v Afejuku (1994) 9 NWLR (pt.368)
379. 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.
In concluding this appeal, it
is my judgment that this appeal is very much unmeritorious. It must be
dismissed and I hereby dismiss it. I uphold the judgment of the court below
setting aside the decision demanding for a revalidation of the fiat issued
by the Attorney-General of
Judgment delivered by
Katsina-Alu,
J.S.C.
I have had the advantage of
reading in draft the judgment delivered by my learned brother
Aderemi J.S.C in this appeal. For the reasons he
has given I also dismiss the appeal and affirm the decision of the Court
below.
Judgment delivered by
Sunday Akinola Akintan
J.S.C
The two questions raised in
this appeal are whether a fiat granted to a counsel to prosecute or defend a
case could be declared by the trial Judge as having lapsed while the case
for which the fiat was granted was yet unconcluded;
and whether an appellant's absence at the hearing of his appeal could
warrant striking out his appeal even though he was represented by a counsel.
The two questions were adequately answered in the lead judgment written by
my learned brother, Aderemi, J.S.C, the draft of
which I had the privilege of a pre-view. I entirely agree with his reasoning
and conclusions expressed in the said lead judgment.
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.
Also on the question whether
an appellant needs to be in court while his appeal is being heard even
though he is represented by a Counsel, I believe and hold that the stand
taken by the High Court in striking out the appeal before it on ground that
the appellant, the Commissioner of Police, was not in court, was totally
wrong and a misconception of the provisions of Order 44 Rule 10 (1) of
the High Court Civil Procedure Rules. That Rule provides as follows:
"(1)
If, on the day of hearing or any adjournment of the case,
the appellant does not appear,
the case shall be struck out and the decision shall be affirmed
unless the court thinks fit,
for sufficient cause, to order otherwise."
The appellant, in the instant
case, was the Commissioner of Police of the State. He was represented by a
counsel on the day of hearing. 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. The
correct and proper interpretation to be given to the phrase: "the appellant"
in the Order 44, Rule 10 (1)
should therefore cover representation by a counsel or anyone so designated
by the Commissioner.
In conclusion, I also agree
that the appeal lacks any merit. I accordingly dismiss it and make similar
consequential orders as are made in the lead judgment.
Judgment delivered by
Walter Samuel Nkanu
Onnoqhen J.S.C.
This is an appeal
against the judgment of the Court of Appeal holden
at Calabar in appeal No CA/C/77/2002
delivered on 29/11/04 allowing the appeal of the present respondent against
the judgment of the High Court of Cross River State sitting on appeal in
appeal No HC/2AC/2001.
The appellants were standing
trial before the Chief Magistrate's Court,
Akpap Okoyong in
Cross River State presided over by L.B.
Otu. Esq, and the
matter was part heard at the time the incident leading to the appeals
occurred; in fact, three witnesses had testified oh behalf of the
prosecution which was being conducted by learned counsel for the respondent
in this court, a private legal practitioner upon a fiat from the Attorney
General of Cross River State duty filed in that court. On the 12th
day of January, 2001 the learned trial Chief Magistrate, who was at the
material time on transfer, sat and upon calling the charge without the
presence of learned counsel for the prosecution, dismissed the charge and
discharged the accused persons.
Learned counsel for the respondent was not happy with the result of the
proceedings of that day so he lodged an appeal in the
When the matter came up for
hearing, an objection was taken
by learned counsel for
the respondent in that appeal to the
appearance of learned counsel for the appellant
in the appeal, on the ground that he had
not obtained the Attorney General's fiat, and
secondly that by virtue of the provisions of
Order 44 Rule 10 of the
Cross River State High Court (Civil Procedure)
Rules, 1987, the absence of the
appellant in person in court on the date fixed for the hearing of the
appeal, was fatal to the appeal and urged the court to strike out the
appeal. Learned counsel for the appellant argued that the appellant need not
appear in court personally being a nominal party but that appearance by
counsel on his behalf constitutes appearance by the appellant particularly
as the appellant was not needed to testify in the appeal. The learned judge
upheld the objections of the counsel for the respondent and consequently
struck out the appeal.
Learned counsel for the
appellant in that appeal was dissatisfied with the ruling and appealed to
the Court of Appeal which allowed the appeal and ordered that the appeal be
heard by another judge of the Cross River State High Court,
holden at Calabar.
The respondents in that appeal are not satisfied with that judgment and have
consequently appealed to this court where the issue for determination, as
formulated by learned counsel for
the appellant, Chief H.O. Ogbodu, in the
appellant's brief filed on 22/5/06 is as follows:-
"Whether the Court
of Appeal was right in setting
aside the order of the High Court striking out the appeal of the respondent
for failure of the respondent to comply with Order 44 Rule 10(1) of
Cross River State High Court Civil Procedure Rules 1987."
In arguing the issue, learned
counsel for the appellants referred to the provisions of
Order 44 Rule 10(1) of the High Court
Rules and submitted that since the provisions are clear and unambiguous,
the words must be given their literal meaning, relying on the case of
Niger Progress Ltd v North East Line
Corp. (1989) 3 NWLR (pt. 107), 68; Amokeodo v
IGP (1999) 6 NWLR (pt. 607) 467 at
488; that
the judge did
not insist
on the
appearance of the
Commissioner of Police but that the rules of court must be obeyed; that the
rule does not say that if the appellant is a Commissioner of Police he
should be absent from court during the hearing of the appeal without
explanation neither does the rule say that because counsel regularly appear
for a party in a
criminal case, the appearance of the client can be dispensed with
contrary to what the lower court held which, in effect meant, that the lower
court read into the rule what was not there, which is not allowed, relying
on Egbe
v Alhaji (1990) 1NWLR (pt.128) 546 at 581;
Ibrahim v Barde (1996) 9 NWLR (pt. 474) 513 at
577; that no reason was given for the absence of the appellant in court
on the day in question; that an appellate court ought not to substitute its
own exercise of discretion for the discretion already exercised by the trial
court, relying on Gen and Aviation
Serv. Ltd v Thahal (2004) 10 NWLR (pt. 880) 50
90-91; that the lower court erred in resorting to the provisions of
Order 11 Rule 33 of the Cross River
State High Court (Civil Procedure) Rules 1987 which deal with a general
situation, in interpreting Order 44
Rule 10 thereof dealing with specific situations, relying on
Schroder v Major (1989) 2 NWLR (pt.
101) 1 at 121 and urged the court to resolve the issue in favour of the
appellant and allow the appeal.
On his part, learned Counsel
for the respondent, Mba
Ukweni Esq, in the respondent's brief of
argument filed on 20/7/06 submitted that the appeal calls for the
interpretation of the provisions of
Order 44 Rule 100 of the Cross River State High Court (Civil Procedure)
Rules 1987 and submits that the provision does not make the
appearance of an appellant before the High Court
mandatory during an appeal before that court but gives the court discretion
on the issue; that the judge did not exercise his discretion judiciously and
judicially. Learned counsel then referred to
Order 11 Rule 33 of the High Court
Rules and submits that Order 44
Rule 10(1) of the High
Court Rules
does not debar appearance of an appellant by
counsel as in the instant case, that provisions of statute or rules are to
be read together and
interpreted as a whole,
relying on
George
I. Obayuwana v Governor,
Bendel State (1982) 12 S.C 147,
Anoh v Hirhyam
(1997) 2 NWLR (pt 486) 174 at 188;
Ibekwe v Maduka
(1995) 4 NWLR (pt 392) 716 at 724; that once a party has engaged the
services of counsel, he is not expected to be physically present in court,
relying on
Haruna v
Ladeinde (1987) 4 NWLR (pt. 67) 941 at 945;
that a party represented in court by counsel need not appeal in person in
the court as the appearance of his counsel constitutes his own appearance
within the meaning of appearance in
Order 44 Rule 10 (1) of the High Court Rules, relying on
Kehinde
v Ogunbunmi (1967) 1 All NLR 306 at 309 - 311;
Metro Gas Ltd v
Eferakeya (2001) FWLR (pt. 39) 1442 at 1451; that to insist on
the personal appearance of the Commissioner of Police in a criminal appeal
will pose serious set back to the prosecution of criminal cases in the
courts, learned counsel further submitted; that though the rules of court
must be obeyed, they are not to be interpreted in a mechanical manner to
frustrate the essence of administration of justice; that substantial justice
as opposed to justice according to technicalities demands that the appeal be
dismissed and urged the court to order accordingly.
Order 44 Rule 10(1) of the
Cross River State High Court (Civil Procedure) Rules 1987
provides as follows:-
"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."
Order 44
is headed:
Appeals from Magistrate's
while the side note reads:
"where appellant fails to appear."
It is very clear from the
provisions of Order 44 Rule 10 (1)
supra that the court is given the discretion in dealing with the appeal
where the appellant fails to appear in court at the hearing of his appeal.
The provision is very clear as the words used therein are not ambiguous at
all but straight forward and therefore need no judicial interpretation
except the pivot of that provision which lies on the meaning of word
"appear" as used therein. Unfortunately that word is no
where defined either in the Edict enacting the Rules i.e. Cross River State
Edict No 7 of 1987 nor in the Rules in question. I am of the
considered view that the solution to the issue under consideration lies in
what we mean by appearance by the appellant at the hearing of an appeal.
There is no disputing the fact
that in the instant case, the appellant before the High Court was the
Commissioner of Police who was represented by learned counsel. Also true is
the fact that parties to any case are either individuals or corporate or
even an office such as the State, the Federal Republic, the Inspector
General of Police, the Attorney General, the Commissioner of Police, etc. In
criminal matters, such as the one from which this appeal arose, it is common
knowledge that the parties are usually either the State, or the Federal
Republic, or the Inspector General of Police, or Commissioner of Police, or
Attorney General e.t.c against the individual(s)
charged with the relevant offence. These offices though not individuals, are
occupied by individuals except of course the
The word
"appearance" by the appellant at the hearing of the appeal as used in
order 44 Rule 10(1) of the Rules
has no difficulty in meaning where the appellant happens to be an individual
- he has to appear in court or offer satisfactory reasons for the non
appearance at the hearing. The difficulty, however, lies in the use of the
word
"appearance" in relation to corporate appellant as in the instant
case on appeal. If one says
that appearance means personal appearance, who would appear where appellant
happens to be the State or Federal Republic of Nigeria as it sometimes
happens? I hold the view that in such a situation a representative of the
State or
The word "appearance"
is defined by Black's law Dictionary,
8th Ed. page 107 as follows: -
"A coming into court as a party or interested
person, or as a lawyer on
behalf of a party or interested person; especially; a defendant's act of
taking part
in a law suit,
whether by formally participating in it or by an answer, demurrer, or
motion, or by taking post
judgment steps in
the law suit in either the trial court or
an appellate court."
From the above, it is very
obvious and I hereby hold that appearance can be either personal by the
party to the action or appeal or through his legal practitioner. The word
signifies or designates the express or overt act by which a party against
whom an action has been instituted or who seeks redress from the court of
law submits himself to the jurisdiction of the court. The act of appearing
in court may be expressly made by formal memorandum of appearance or to
physically appear and make oral declaration or statement to that effect or
may be implied from some act done with the intention of appearing and
submitting to the jurisdiction of the court.
It must be noted that in
applying the definition of the word to the facts of this case, it is
relevant to also consider the nature of the proceeding requiring the
appearance of the party. In the
instant case, the matter was an appeal not a trial, and there is no evidence
on record that the appellant was required to give further or additional
evidence on appeal neither has such
an argument been canvassed before this court
or the lower courts;
that the appellant was represented by a legal practitioner who was present
in court, ready and willing to argue the appeal - in other words, the
business of the court for that
day was not to
be adversely affected by the
non-physical appearance of the occupant of the office of Commissioner
of Police. By the way, if we agree with Edem. J.
that the Rule requires the physical appearance of the Commissioner of
Police, is it going to be the Commissioner of Police who
occupied that office at the institution of the criminal proceedings
or the one in that office during the appeal
proceedings? If it is
the one in the office during the hearing of the appeal will that satisfy the
requirement of the personal physical appearance not being the one in that
office when the criminal proceedings were instituted?
I have carefully considered
the submissions of both counsel for the parties and I am of the firm view
that the lower court is very correct in the views expressed in the judgment
on appeal particularly when one considers the provisions of
Order 11 Rule 33 of the Cross River
State High Court (Civil Procedure) Rules 1987 cited and relied upon by
the lower court to the effect that-
"Where by these rules any act may be done by any party in an action, such
act may be done either by the party in person, or by his legal practitioner,
or by his agent (unless an agent is expressly debarred under these rules or
any written law in force in the State)."
The above provision is very
much in accord with the meaning of the word
"appearance" of a party or appellant as defined earlier in this
judgment. It is therefore my view that the word
"appear" as used in relation to an appellant in
Order 44 Rule 10(1) included a
legal practitioner retained by the party or appellant for the appeal and
that an appearance by such a legal practitioner so engaged cannot in law, be
said to be in violation of the said provisions or amount to a non appearance
of the appellant at the hearing of the appeal.
It
is for the above
and the more detailed reasons given in the judgment of
Aderemi J.S.C that I agree that the appeal is very much without merit
and should be dismissed. I hereby dismiss same and abide by the
consequential orders made in the said lead judgment.
Appeal dismissed.
Judgment delivered by
Ibrahim Tanko Muhammad.
J.S.C.
From the facts made available
in the record of appeal before this Court, the
The appellant with some four
others were charged before the Chief Magistrate's Court,
Akpap Okoyong, in
Odukpani Local Government Area of Cross River
State on a four count charge of:
(i)
Conspiracy to effect unlawful purpose
(ii)
Forcible entry on a land in the actual peaceable possession of one
Chief Effiong
Offiong Andong,
(iii)
Malicious damage and
(iv)
Thereat
with intent to intimidate.
The appellant pleaded not
guilty to each of the counts. Hearing in the case commenced on the 12th
May, 2000.Three witnesses testified for the prosecution when the trial Chief
Magistrate was transferred to another magisterial district. It was alleged
that though, on transfer, the trial Chief Magistrate resumed to that
magisterial district
to sit and entertain the charge against the appellant without any authority
from the State Chief Judge. He truncated the case by dismissing the charge
on the ground that the prosecuting counsel was absent even though the
Investigating Police Officer (IPO) who was to testify was in court ready to
give his testimony.
Aggrieved by the dismissal of
the case, the appellant appealed to the High Court. An objection was raised
concerning the appearance of the counsel representing the Commissioner of
Police on the ground that he had no fiat to do so.
On the 14th of
January, 2002, when the matter came up for argument on the objection raised,
Mr. Charles Duke, counsel, abandoned the issue raised that is, the objection
that the appellant's counsel had no fiat. He now raised and argued an
entirely new and different issue which is "whether the appeal can be
entertained in the absence of the appellant". While ruling on the objection,
the learned Judge of the High Court refused appearance to Mr.
Mba Ukweni for the
Commissioner of Police and subsequently struck out the appeal for
non-appearance of the Commissioner of Police in court.
Dissatisfied with that
decision, the respondent herein appealed to the Court of Appeal,
Calabar Division. The court below allowed the
appeal, set aside the decision of the High Court and allowed the
respondent's appeal before the High Court to be relisted and heard afresh by
another Judge. It is against this decision that the appellant has now come
to this court on two grounds set out in his Notice of Appeal which is on
pages 134-136 of the record of Appeal.
The lone issue raised by the
appellant for this court to determine is as follows:
"whether
the court of Appeal was right in setting aside the order of the High Court
striking out the appeal of the respondent for failure of the respondent to
comply with Order 44 Rule 10(1) of
The respondent formulated the
following issue;
"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?"
The issue raised by each of
the parties is very crucial to the development of the law in this country,
looking at our historical antecedents
vis-a-vis
the English legal system we inherited and which we supplant and apply. My
learned brother, Aderemi, J.S.C, has considered
these issues satisfactorily. I will only want to add the following few
words: Order 44 Rule 10(1) of the
High Court of Cross River State civil procedure Rules, 1987 provides as
follows:
"(1) 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. "
On issue No 1, let me
reproduce the submission of learned counsel for the appellant:
"The Learned trial 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 see. H.A
Willoughby v International Merchant Bank (Nig) Ltd 1987 1 SC 137 at 161
The rule also did not say that because counsel regularly
appear for a party in a case and the case being criminal, the
appearance of that party can be dispensed with ".
I think even, before heading
to this court adequate and very potent answer was given to the learned
counsel quoted above, by Thomas, J.C.A. Although lengthy, it is interesting
and instructive to listen to what the learned Justice of the Court of
Appeal, said:
"Now to consider whether it was proper for the lower court to strike out the
appeal on Order 44 Rule 10 (1) of the High Court.
I hereby re-quote
the 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 affirmed,
unless the court thinks fit, for sufficient cause, to order
otherwise.'
(underlining
is mine)
I
am sure the learned judge did not consider the underlined words above.
The intention of the law makers no doubt, knew that there could, be
situations, in which the appellant has either written to the court
explaining his inability to appear on good reasons or has engaged the
services of a counsel to appear for him, or even in case due to either
ill-health or old age and the appellant can not appear physically in court,
whereby, his representatives are authorized to appear. The lower judge for
no apparent reasons, failed to consider the words “unless the court thinks
fit, for sufficient cause to order otherwise.” If the judge had in fact
adverted his mind totally to the aforesaid Order 44 and rule 10 (I)
(supra), he would know, that on each occasion the mutter was adjourned,
the appellant counsel had announced himself for the appellant. The record of
proceedings from page 32-34 dated 1-8-2002, (though should look 1-8-2001);
14-1-2002; 20-2—2002 and lastly, 2-5-2002, the judge stated thus:
'Barrister M. Ukweni appears for the appellant.'
Therefore, the words –
"Appellant is absent,"
was just a mere statement that is meaningless as the private legal
practitioner had announced his appearance for the inanimate person just as
the state is represented by a counsel or police prosecutor, whether he is an
Attorney General, State counsel or police prosecutor or a private legal
practitioner duly (sic) issued with a fiat. They always appear for either
the Commissioner of police or the Director of public prosecution or
Commissioner of Police. It is further necessary that, in applying Order
44 Rule 10 (I) supra, the judge has to read in addition, sub. rule
(2) of rule 10 of order 44 and rule 11 of the same Order 44 (supra),
at which the judge will understand that on a day for hearing or adjournment,
the appearance of the
private legal
practitioner for the appellant (Commissioner of Police) was sufficient.
It is trite law that,
rules of court, can
permit the appearance of any legal practitioner for any party in the case
before it, to exercise his lawful right and act in any matter lawfully
allowed. This is the intention of the law makers in High Court (civil
procedure) Rules, Order 11 rule 33 of Cross River State (1987) In the
case of Haruna v
Ladeinde
(1987) (supra), it was held sufficient for appearance of
an appellant who engaged the services of legal practitioner. The court
stated that the physical appearance of
the appellant was
not necessary.
It is therefore, a misconception as argued by learned counsel for the
respondent, that the lower court judge was right in applying Order 44
Rule 10 (1) alone without reference to other rules related to same. "
I fully endorse that reasoning
process of the learned Justice of the Court of Appeal. 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. Numerous inhibiting factors
as highlighted by the court below as shown above,
abound to disable a person from putting up personal appearance. I agree that
court rules are meant to be obeyed. They should not however, render Judges
subservient to them to the extent of stalling the proceedings of a court. I
am surprised that it is a lawyer that is promoting that retrogressive
practice when the whole world is fastly
adopting to a more progressive and speedier
methods of resolving legal disputes.
On the issue of expiration of
fiat raised by the appellant's
learned counsel, the learned counsel should appreciate the connotation and
efficacy of a fiat. Firstly, it
is a Latin word which means "Let it be done". Technically, therefore, it
denotes the grant or conferment of power on another by a person having
complete authority on the issue upon which the fiat was given in matters of
prosecution, the Attorney General of a state or of the Federation can give
such a fiat. A Commissioner of
Police can delegate his officers or private legal practitioners to represent
him in a case. The life span of such an authority or fiat may extend to the
conclusion of the case in question.
It was certainly wrong of the
learned High Court Judge on appeal to have refused audience to the learned
counsel who appeared for the respondent which resulted in the striking out
of the appeal before him. His lordship was misled and misdirected,
unfortunately.
For these and the fuller
reasons of my learned brother, Aderemi,
J.S.C, I too, dismiss the appeal and affirm the
decision of the court below.
Counsel
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