LUCKY JOHN PAUL v. THE STATE
(2019)LCN/13273(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of May, 2019
CA/C/311C/2016
RATIO
JURISDICTION: THE NATURE OF JURISDICTION IS FUNDAMENTAL TO ANY MATTER
Jurisdiction is a fundamental necessity for any adjudication and it is a threshold matter which has received judicial attention, see IDISI VS. ECODRILL (NIG.) & ORS. (2016) LPELR- 4048(SC) where Nweze, JSC in reemphasizing the importance of jurisdiction said thus:
“In all, the point must be noted here that jurisdiction is of paramount importance in the process of adjudication. As such, where there is a deficit in regard thereof, everything done or every step taken in the proceedings amounts to nothing, Attorney General for Trinidad and Tobago vs. Erichie (1893) Ac 518, 522; Timitimi vs. Amabebe 14 WACA 374; Mustapha vs. Governor of Lagos State [1987] 2 NWLR (Pt 58) 539; Utih vs. Onoyivwe [199l] 1 NWLR (pt 166) 206. Put differently, jurisdiction is the life-wire of any proceeding in Court and everything done in its absence is simply, a nullity, Jumang Shelim and Anor vs. Fwendim Gobang [2009] 7 SCM 165; [2009] 12 NWLR (pt 1156) 435.”PER YARGATA BYENCHIT NIMPAR, J.C.A.
JURISDICTION: THE 3 NECESSARY INGREDIENTS FOR JURISDICITON TO EXIST
Jurisdiction is generally determined by 3 main features as settled in the case of MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341 as follows:
When an issue of jurisdiction is raised, the Court would consider whether:
a. It is properly constituted as regards numbers and qualification of the members of the bench such that no member is for any reason disqualified;
b. The subject matter of the case is within its jurisdiction and there is no feature of the case which prevents the Court from exercising of its jurisdiction; and
c. The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of its jurisdiction.PER YARGATA BYENCHIT NIMPAR, J.C.A.
APPEAL: NOTICE OF APPEAL: IMPORTANCE IN AN APPEAL
The Notice of Appeal or Cross Appeal is an initiating process and it must be valid and competent to bestow jurisdiction on the Court, see UMEZINNE VS. FRN (supra). In this case, there is a pending appeal and the Respondent sought leave of Court to Cross Appeal and displayed the proposed copy of the Notice of Cross Appeal and filed a clean copy which it sought it be deemed.PER YARGATA BYENCHIT NIMPAR, J.C.A.
JURISDICTION: JURISDICTION IS DERIVED FROM SUBTANTIVE LAW
Jurisdiction of a Court is an issue of substantive law, see NAGOGO VS. CPC (2012) LPELR-1552 (SC) which held this:
Jurisdiction is derived from substantive law and not procedural law. Rules of procedure therefore cannot divest the Court of jurisdiction. The conditions precedent mentioned in the case of Nkemdilim v Madukolu (supra) are largely statutory requirements. The procedural requirement if breached can make the process voidable without touching the jurisdiction of the Court. See A.G.KWARA STATE VS. ADEYEMO & ORS. (2016) LPELR-41147(SC)
Non-compliance with the rules which affect the very foundation or props of the case cannot be treated by the Court as an irregularity but as nullifying the entire proceedings. Once the non-compliance affects the substance of the matter to the extent that the merits of the case are ruined, then, it is impossible to salvage the proceedings in favour of the party in blunder.PER YARGATA BYENCHIT NIMPAR, J.C.A.
BREACH OF RULE OF PRACTICE AND PROCEDURE DOES MERELY CREATES AN IRREGULARITY
Ordinarily a breach of a rule of practice and procedure does not render the proceedings a nullity but merely an irregularity, seeSAUDE VS. ABDULLAHI [1989] 4 NWLR (PT. 116) 388.PER YARGATA BYENCHIT NIMPAR, J.C.A.
MURDER: WHETHER A JUDGE CAN ADJUST THE SENTENCE PRESCRIBED BY LAW FOR THE OFFENCE OF MURDER
There is no such provision of law where a person found guilty of murder is sentenced to life imprisonment with hard labour. Furthermore, the Court had no discretion when it comes to sentence under the section. It does not give any such discretion to depart from the statutorily named sentence. See ODUNAYO VS. STATE (supra) where it held as follows:
In State vs. Babangida John (2013) LPELR-20590 (SC), the Apex Court per Rhodes-Vivour JSC on page 25 paragraphs D-G stated thus: “Once a judge finds an accused person guilty of culpable homicide under Section 221 of the Penal Code, the only sentence he can pronounce is death. A judge has no jurisdiction to listen to allocutus and no discretion to reduce death sentence to a term of years once the accused person has been found guilty under Section 221 of the Penal Code. The sentence of 14 years imprisonment after finding the Accused/Respondent guilty of culpable homicide contrary to Section 221 of the Penal Code was wrong, it is a material irregularity in the proceedings of the trial Court and this Court could remedy it so that substantial Justice might be done.”PER YARGATA BYENCHIT NIMPAR, J.C.A.
SENTENCING: WHEN THE COURTS CAN VARY THE SENTENCING OF A CONVICT
Sentences vary, some penal provisions gives maximum and minimum in which case there may be a discretion given to the judge to fix what he thinks appropriate; other are fixed with no latitude within which to swing, in such cases, the Court must follow the law without any regard to sentiments. See ABDULLAHI VS. STATE (2015) LPELR-40389(CA) held thus:
“The position of the law is that where the statute or section of the law creating or defining the offence expressly describes that there is no option of fine, the Courts cannot impose fine or any other punishment using its discretion, but where however the statute is silent even if it only mentions imprisonment and is silent on the fine, the Court have discretion to impose fine in lieu of imprisonment. See; AMEH VS FRN (2010) NCC 5 (PG.418) AT 437.PER YARGATA BYENCHIT NIMPAR, J.C.A.
SENTENCING: MURDER: THE ONLY SENTENCING PROVIDED FOR MURDER
In the case of murder, once a judge finds the accused guilty of murder, the sentence is just one way, it must be death, see AGU VS. STATE (2017) LPELR-41664 (SC) which held as follows:
“The Appellant was charged and found guilty of the offence of murder under Section 319 (1) of the Criminal Code. Section 319 is the punishment Section. It states that any person who commits the offence of murder shall be sentenced to death …”PER YARGATA BYENCHIT NIMPAR, J.C.A.
Justice
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
Justice
LUCKY JOHN PAULAppellant(s)
AND
THE STATERespondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice of Akwa Ibom State sitting at Abak Judicial Division and presided over by Hon. Justice Iniabasi T. Udobong delivered on the 3rd of February, 2016 wherein the Appellant arraigned for the offence of murder was found guilty and sentenced to life imprisonment with hard labour. Dissatisfied with the decision, the Appellant filed a Notice of Appeal on the 21st July, 2016 setting out one ground of appeal.
Facts surrounding this appeal are set out in the respective briefs of the parties. It can be simply summarized here by stating that the Appellant was arraigned for the offence of murder before the trial Court alleging that he killed his father by cutting him with a machete. The prosecution called three witnesses while the Appellant gave evidence in defence. At the conclusion of trial, the Court below found him guilty, convicted and sentenced him to life imprisonment with hard labour thus the appeal.
The Appellants brief settled by GODWIN UDONDIAH Esq., is dated 20th November, 2017 filed on the 8th
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November, 2017 but deemed on the 28th November, 2017. It settled a sole issue for determination as follows:
Whether the guilt of the appellant was proved beyond reasonable doubt by the prosecution having regard to the evidence (oral and documentary) adduced before the lower Court.
The Respondents Brief settled by UDUAK EYO-NSA, Esq., the Solicitor General and Permanent Secretary, Ministry of Justice, Akwa Ibom State, is dated 5th March, 2018 and filed on the 7th March, 2019 but deemed on the 28th November, 2018. It also donated a sole issue for determination thus:
Whether from the totality of the evidence adduced at the trial, the prosecution had proved the charge of murder against the Appellant beyond reasonable doubt.
Both parties adopted their respective briefs at the hearing to urge the Court in line of their briefs. The Court shall adopt the sole issue distilled by the Appellant in order to consider fully all areas of the Appellants complaint against the judgment.
Arguing the sole issue, the Appellant reiterated the burden on the Respondent to prove all the ingredients of the alleged crime beyond reasonable doubt and
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failure to do so, the accused shall be discharged. He relied onALMU VS. STATE (2009) 10 NWLR (PT. 1148) 31 and Section 135 of the Evidence Act. He submitted that the respondent failed in this case as the offence alleged was not proved beyond reasonable doubt. On the evidence led by the Respondent, the Appellant contended that it fell short of the required standard to justify a conviction. He submitted that there was no eye witness account of who killed the deceased because PW1 and PW2s evidence is of no value and PW3 only investigated the complaint and furthermore the alleged confessional statement was made over two months after the Appellant was arrested. He questioned why the appellant had to make a second statement-Exhibit F after Exhibit E was made immediately upon his arrest. He urged the Court to reject Exhibit E because no reason was given for a second statement and without further investigation.
Appellant argued that he raised an alibi in Exhibit E that he was in a church when his father was attacked and only came back to find his father in a pool of blood and he reported the incident to the police. He questioned why the trial judge
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disbelieved him inspite of his alibi that was not investigated. He submitted that alibi means the Appellant was not at the scene of crime and a defence on the physical impossibility of appellants guilt, citing IDEMUDIA VS. STATE (2015) 17 NWLR (PT. 1488) 375. He agreed that to be entitled to the defence, it must be raised early to offer the police an opportunity to either confirm or refute same. He contended that the alibi was raised early in this case and failure to investigate it should lead to an acquittal, relied on HASSAN VS. STATE (2001) 6 NWLR (PT. 709) 286 and IBRAHIM VS. STATE (1991) 4 NWLR (PT. 186) 399. Appellants counsel argued that the Appellant was kept in custody until the second statement and that impeached the second statement, Exhibit E. Appellant contended that failure to investigate the alibi and the fact that the Appellant said he was a catholic who does not know of any other church should not deny him of the benefit of doubt. Furthermore, that the police had a motive in failing to investigate the alibi because they came up with a second statement which is confessional and it cannot be used against the appellant because it
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was not free and voluntary. He argued that the Court can only act on credible evidence, citing OMOZEGHIAN VS. ADJARHO (2006) 4 NWLR (PT. 969) 33. Appellant submitted that the Court below convicted the Appellant solely on the confessional statement Exhibit E without verification as required and recommended in AWOSIKA VS. THE STATE (2010) 9 NWLR (PT. 1198) 49. Appellants counsel argued that before the 6-way test can apply, the alibi in Exhibit F must have been investigated. He urged the Court to find for the Appellant, allow the appeal and set aside the sentence.
The Respondent in reaction reviewed the legal burden on the respondent in criminal trials and identified the ingredients necessary to establish the offence of murder as stated in HARUNA VS. THE STATE (2012) 9 NWLR (PT. 1306) 419 and EDOHO VS. STAT
