(1971) All N.L.R. 555


Division: High Court, Kano

Date of Judgment: 2nd October, 1971

Case Number: SUIT NO. K/M.39/71

Before: Jones, S.P.J.


Criminal Motion.

Application for extension of time within which to appeal.


(1)     The right of appeal in criminal cases is set out in s. 53 Constitution of Kano State.

(2)     Subsection (4) of that s. 53 limits the right of appeal of any but the accused to that provided by any law in force in the State.

(3)     The only relevant such law is s. 279(2) Criminal Procedure Code which gives a right of appeal to the prosecutor against acquittal and discharge only.

(4)     Order for bail is not an acquittal or discharge.

(5)     No additional right of appeal is given the Solicitor General by s. 49 Constitution of Kano State.

(6)     Without an express statutory right of appeal there is no right of appeal.

Application refused.

Case referred to:

Furtado v. London Brewery Company, (1914) 1 K.B. 709.


SUIT NO. K/M.39/71.

Nwajei, Senior State Counsel, for applicant.

Jones, S.P.J.:-The State has applied ex parte for an extension of time in which to appeal against a decision of the Acting Chief Magistrate refusing to revoke or increase bail upon an application by the Solicitor General under s. 350 Criminal Procedure Code.

Mr Nwajei, Senior State Counsel submits that he has a right of appeal under s. 53 Constitution of Kano State read in conjunction with s. 49 thereof and s. 279(2) Criminal Procedure Code (C.P.C.). Section 279(1) C.P.C. provides that appeals from Magistrates Courts shall be in accordance with s. 53 Constitution of Kano State.

Section 53 Constitution of Kano State gives a wide right of appeal to the High Court from a subordinate Court. Such a subordinate Court is the Chief Magistrate's Court. However such right is exercisable only as specified in subsection (4)(a) thereof which says that that right of appeal:-

"shall be the case of criminal proceedings at the instance of the accused person or subject to the provisions of s. 49 of this Constitution, at the instance of such other persons or authorities as may be prescribed by any law in force in the State."

Mr Nwajei, Senior State Counsel, submits that s. 49 of this Constitution makes the Attorney General an "authority" within the meaning of that term in s. 53 (4)(a), and he directs my attention to Constitution (Suspension and Modification) Decree, No. 1 of 1966 Part II where s. 35 of this Constitution is replaced by a section giving the Solicitor General the powers of an attorney General in criminal matters when, as in Kano State, there is no person holding the office of Attorney General. I find myself in agreement with this submission.

Mr Nwajei further submits that s. 49 of this Constitution gives the Solicitor General a right of appeal to the High Court against any decision in criminal matters of a subordinate court. The relevant powers conferred by s. 49 are set out in subsection (2) thereof as:

"(a) to institute and undertake criminal proceedings against any person before any court of law in the State in respect of any offence created by or under any State law;

(b)     to take over and continue any such criminal proceedings that may have been so instituted by any other person or authority; and

(c)     to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority."

I can see no mention here of any special powers of appeal. It appears that the Attorney General is empowered to institute or take over any criminal proceedings on the same terms as any other prosecutor (subject of course to any special powers conferred elsewhere).

He is also given the additional power, not enjoyed by other prosecutors, of discontinuing such criminal proceedings. He is not, however, given any power of appeal other than that enjoyed by any other prosecutor.

Now, the right of appeal given to any other prosecutor is, under s. 53 (4)(a), such "as may be prescribed by any law in force in the State."

Mr Nwajei has not been able to point to any relevant "law in force in the State" except s. 279(2) Criminal Procedure Code (C.P.C), and I do not myself know of any other relevant law. Section 279(2) C.P.C. reads:-

"where an accused person has been acquitted or an order of discharge made by a magistrate's court, the prosecutor may appeal to the High Court from such acquittal or discharge on the ground that it is erroneous in law, or that the proceedings or any part thereof were in excess of the jurisdiction of the magistrate's court."

This application is for an appeal from a refusal to revoke or alter bail. That is not an acquittal or an order of discharge. Thus a prosecutor, including the Solicitor General, has right of appeal against a final decision in the nature of an acquittal or discharge only, and has no right of appeal against an order for bail or any other interlocutory order.

Finally, Mr Nwajei appears to have suggested that a right of appeal in necessarily implied by s. 49 of this Constitution. The relevant law on this point has long been settled: there is no right of appeal, unless expressly provided by statue: Furtado v. London Brewery Company, (1914) I K.B. 709 at 712. This applies equally to criminal as to civil cases.

The application is refused.

Application refused.