ISAH v. STATE
(2022)LCN/16884(CA)
In the Court of Appeal
(AKURE JUDICIAL DIVISION)
On Friday, May 27, 2022
CA/AK/25CA/2019
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Yusuf Alhaji Bashir Justice of the Court of Appeal
Between
SUNDAY ISAH APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT IT IS ACCEPTABLE TO COUCH AN OMNIBUS GROUND OF APPEAL IN A CRIMINAL APPEAL IN THE SAME MANNER AS OBTAINED IN CIVIL APPEAL
In a criminal matter where the prosecution at all times or throughout the trial has the burden of proving the offence(s) preferred against an accused person (Appellant in the instant appeal) beyond reasonable doubt, the omnibus ground of appeal is to be couched thus: –
“that the verdict is unreasonable or cannot be supported having regard to the evidence”.
It is the position of the law that couching of an omnibus ground of appeal in a criminal appeal in the same manner that obtains in a civil appeal, is unacceptable. Even though there are some decisions of the Supreme Court, namely, DAGAYYA V. STATE (2006) LPELR-912(SC) and SHEHU V. STATE (2010) LPELR-3041 (SC) amongst others, wherein the lapse or error in couching an omnibus ground of appeal in a criminal appeal, in a manner suitable in a civil appeal, has been overlooked and relying in this regard on what the said Supreme Court stated to be the “per incuriam position” it took in the case of Mbam Iboko & Ors. V. Police (1965) NMLR 384, the present position of the law, in my considered view is now that such a lapse should no longer be tolerated or accepted. This is so, despite the nature or seriousness of the case as was countenanced by the Supreme Court in the case of ABASI V STATE (1992) LPELR-20(SC). PER LOKULO-SODIPE, J.C.A.
WHETHER OR NOT PARTIES CAN BY THEIR ACTS OR OMISSION CONFER JURISDICTION ON A COURT IN WHICH THE JURISDICTION OF THE COURT HAS NOT BEEN PROPERLY REVOKED
After all, it is settled law that parties cannot by their acts of omission or commission, or agreement confer jurisdiction on a Court in respect of any matter in which the jurisdiction of the Court has not been properly invoked. See in this regard the case of ADEYEMI V. STATE (1991) LPELR-172(SC) wherein the Supreme Court dwelling on “whether jurisdiction can be conferred on the Court by parties” stated thus:
“It is pertinent to observe that parties cannot confer jurisdiction on the Court where it has none or can have none. Thus where the Court has no jurisdiction and the act done without jurisdiction is a nullity. The fact that appellant co-operated did not clothe it with jurisdiction and the consequent act with validity.”
See also the case of BRAITHWAITE V. SKYE BANK PLC (2012) LPELR-15532(SC) wherein the Supreme Court also dwelling on “whether a Court without jurisdiction can confer one on itself” stated thus: –
“A writ of summons is an originating process by means of which actions are commenced. The competence of such process is a pre-requisite for a valid and subsisting claim. Where the process fails to comply with the requirement of the law regulating its procedure, the Court cannot assume jurisdiction thereon.
Jurisdiction of a Court is constitutional. No Court can therefore confer jurisdiction upon itself, nor can parties by their mutual agreement also confer any jurisdiction. A defective originating process cannot activate the Court’s jurisdiction.” PER LOKULO-SODIPE, J.C.A.
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION OF THE COURTS
The fundamentality of “jurisdiction” to the discharge by a Court of its adjudicatory powers is so awesome or encompassing that it is undoubtedly an issue of law which the law allows a Court to raise suo motu and to resolve without calling on the parties to address it on the said issue. See in this regard the case of GBAGBARIGHA V. TORUEMI (2012) LPELR-15535(SC), (2013) 6 NWLR (Pt. 1350) 289 wherein the Supreme Court stated thus: –
“When a Judge raises an issue on his own motion, or raises an issue not in the contemplation of the parties, or an issue not before the Court, the Judge is said to have raised the issue suo motu. The well laid down position of the law is that when an issue is raised suo motu the parties should be heard before a decision is reached on the issue. This is what procedural fairness entails. See:…
but there is an exception to this procedure. There would be no need to call on counsel to address the Court on an issue raised suo motu by the Judge –
1. When the issue relates to the Court’s own jurisdiction;
2. When both parties are not aware or ignored a statute which may have bearing on the case; or
3. When on the face of the Record serious questions of the fairness of the proceedings is evident. See …”
See also the cases of ANGADI V. PDP (2018) LPELR-44375(SC); EFFIOM V. CROSIEC (2010) LPELR-1027(SC); and OMINIYI V. ALABI (2015) LPELR-24399(SC) wherein the Supreme Court stated thus: –
“The settled position of the law, as correctly stated by learned counsel on both sides is that Court is not entitled to raise an issue suo motu and decide on it without affording the parties an opportunity to be heard. This is because in doing so the Court is seen to leave its exalted position as impartial arbiter and descend into the arena of conflict. See:… There are a few exceptions to this general rule.
In the case of Effiom V. C.R.O.S.I.E.C. (2010) 14 NWLR (Pt. 1213) 106, relied upon by learned counsel for the respondent, this Court reiterated the general principle stated above. His Lordship, Tabai, JSC, who wrote the lead judgment went on to state at pages 133 – 134 H-A (supra):
“As I indicated above this principle that the Court ought not to raise an issue suo motu and decide upon it without hearing from the parties applies mainly to issues of facts. In some special circumstances, the Court can raise an issue of law or jurisdiction suo motu and without hearing the parties decide upon it. Tukur V. Government of Gongola State (1989) 4 NWLR (pt.117) 517 is instructive on this point. In that case, although the issue of venue was not raised and argued by the parties in their briefs, it being an issue of jurisdiction, was taken by Court. In the instant case therefore the Court below would be at liberty to raise the issue of locus standi of the appellants if such an issue was relevant to the proper determination of the case. It is to be noted however that the issue of locus standi of the plaintiffs/appellants was raised at the trial Court and effectively determined therein in favour of the appellants. The respondent did not appeal against it and so it was not an issue before the Court below. It was irrelevant and so the Court’s deliberation on it was an exercise in futility.” PER LOKULO-SODIPE, J.C.A.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered in Suit No. HIW/7c/2013 on 17/2/2017 by the High Court of Osun State presided over by Hon. Justice M. A. Adeigbe (hereafter to be simply referred to as “the lower Court” and the “learned trial Judge” respectively).
The Appellant (as 1st accused person) and one Akeem Lamidi were jointly charged in an Information filed on 3/12/2013, with the offence of conspiracy to commit armed robbery and the substantive offence of armed robbery contrary to Sections 6(b) and 1(1) & (2)(a) respectively, of the Robbery and Firearms (Special Provisions) Act, Cap. R11 Laws of Federation of Nigeria, 2004 (hereafter to be simply referred to as “the Robbery and Firearms Act”). The lower Court found the Appellant and his co-accused guilty of the offences they were charged with and accordingly sentenced each of them to death as stipulated by the law under which they were charged. The Information upon which the Appellant stood trial disclosed that the Appellant and his co-accused conspired and actually robbed one Esther O. Aladele of her Brilliance Car valued at N1,800,000.00.
In the proof of the said offences, the prosecution fielded 3 witnesses who were: PW1 – Esther O. Aladete the complainant/victim; PW2 – Inspector Saliu Isah, the Investigating Police Officer (IPO) with the State CID at the time of the incident and who recorded the statement made by the Appellant at the State CID Osogbo; PW3 – Corporal Adeola Olawumi, a Police Officer with Iwo Division and who obtained the statement of the complainant/victim amongst other things.
The following Exhibits were tendered by the prosecution: (i) Exhibits A(1) – (5) are the photographs of the Appellant and his co-accused taken by the complainant/victim; (ii) Exhibit B is the statement dated 18/5/2012 made by the Appellant in Yoruba language to the Police; (iii) Exhibit C is the statement dated 18/5/2012 made by the 2nd accused person – Akeem Lamidi to the Police; (iv) Exhibit D is the English translation of the statements of both the Appellant and his co-accused; (v) Exhibit E is the case file of the Nigeria Police with Charge Register No. CR 45/2012 in respect of the Appellant and two other persons including the 2nd accused person; (vi) Exhibit F is the search warrant dated 19/5/2012 in relation to the Appellant: (vii) Exhibit G is a search warrant dated 19/5/2012 in relation to the 2nd accused person; (viii) Exhibit H is the photograph of the scene of the crime taken by PW2; (ix) Exhibit I is the digger alleged to have been used to commit the offence; and (x) Exhibit J is the statement dated 3/5/2012 made by the complainant/victim to the Police.
On 21/5/2014, the Appellant and his co-accused respectively pleaded not guilty to the charges preferred against them in the Information filed by the prosecution. The Appellant later testified as DW1 while his co-accused testified as DW2. They called no other witnesses.
It is apparent from the judgment of the lower Court that the Appellant and his co-accused made a no-case submission which was considered and dismissed by the said Court. At the close of evidence and adoption of final addresses by learned counsel in the case, the lower Court adopted the issues raised in the said addresses and entered judgment convicting the Appellant and his co-accused for the offences with which they were charged, stating as follows: –
“…The Prosecution Counsel formulated and submitted a sole issue for determination, thus:
“Whether considering the totality of the evidence before the Court, the prosecution has not established the two counts charge of conspiracy and armed robbery, against the two accused persons beyond reasonable doubt.”
On the other hand, the Counsel to the Accused persons formulated and submitted a sole issue for determination, simply as follows:
“Whether the prosecution has proved his case beyond reasonable doubt against all the accused persons.”
Both issues are saying the same thing in different styles, and they shall be taken together in this judgment.
I have painstakingly and carefully reviewed the pieces of evidence from the prosecution and the defence respectively.
In the main, the two accused persons were charged for the offences of conspiracy and armed robbery in this case.
CONSPIRACY:
To prove the offence of conspiracy, the Prosecution must prove two essential ingredients, thus:
(a) An agreement between two or more persons to do or cause to be done an illegal act or a legal act by illegal means.
(b) Individual participation in the conspiracy by each of the accused persons,
In this present case, although both the DW1 and DW2, the two Accused persons denied any knowledge of the charge brought against them in their evidence in Court, but their extra-judicial statement contained in Exhibits “B”, “C” and “D” respectively particularly their extra-judicial statements contained in the folios of Exhibit “E”, transferred with other exhibits from Ibafo, Ogun State to Osun State show a contrary position to their later testimonial evidence in Court.
In Exhibit “B”, the 1st Accused person stated in his extra-judicial statements, the following relevant facts:
“… On the 2nd of May, 2012 at about 8.00 p.m. Akeem called me on phone and said that one of his friend (sic.) wanted me to drive a vehicle for him to Lagos State and that I should meet him immediately. I prepared and went to meet him — I joined him at Oja in Iwo.
“… Three of us left for hospital road, Iwo and when we got to a house that is fenced, Akeem said that I should wait outside. Akeem and his friend climbed the fence and crossed to the compound of the house. The next thing that I saw was that they started digging the wall of the house with digger. Thereafter, they opened the gate of the house and Akeem (sic.) friend gave me the key to one brilliance car that was parked and asked me to drive it out.
I drove the car out from the compound and three of us entered the vehicle, I was the one that drive (sic.) and zoomed off towards Ibadan road when we got to Oja-Oba where I was called I stopped and Akeem (sic.) friend (came) down from the vehicle and left me and Akeem. It was two of us that carried the car to Ibafo Lagos road, we got to Ibafo at about 11.00 p.m. and we took the car to the man we are going to sell the car to —”
Also, in Exhibit “C”, the 2nd Accused person stated in his extra-judicial statement thus:
“…It happened that on 2/5/2012, myself, and Sunday Isah, were at the garage at Odo-Odori at about 8.00 p.m. when my friend fondly called “Baba Oke” who is also a bricklayer came to meet us and said we should follow him to where he was doing bricklaying work to go and robbed (sic.). “Three of us myself, Sunday Isah and Baba Okiki left for the place for our operation. It was myself Baba Okiki that climbed the fence of the house to cross to the compound. While Sunday was asked to stay outside the house, it was 9.00 p.m. that we arrived there. After we climbed the fence, my friend Baba Okiki went and picked (sic.) a digger from the store at house. I was the person who used the digger to perforate the wall and passed through it to the sitting room of the house where we met a woman…….We demanded for the key to her vehicle –
…..It was Baba Okiki that collected the key from her and we opened the gate. It was Sunday that drove the car from the compound and three of us entered it and zoomed off…”
From the above extra-judicial statements of the 2 (two) Accused persons, the confessional statements constitute the statement made immediately after they were arrested during the Police investigations, and they were all admitted as documentary evidence of the Accused persons, without objections by their Counsel in Court. The Exhibits showed clearly that the 2 (two) Accused persons met and carried out the robbery.
I agree with the Prosecution Counsel that it is the law that a free, voluntary confession of guilt of an accused person, is sufficient to ground or sustain a conviction even without a corroborative evidence (sic), so long the Court is satisfied with its truth.
I also agree that the retractions of the confessional extra-judicial statements contained in Exhibits “B” and “C” in particular in this case will not make the confessional statement inadmissible, …This is moreso that a Court can convict on the retracted confessional statement of an accused person, …From the above, I am satisfied that the offence of conspiracy has been proved by the Prosecution, since the Accused person has confessed in Exhibits “B” and “C” that they agreed to commit the offence, and they confessed to have individually participated in the conspiracy.
I therefore hold that the 2 (two) Accused persons have been proved to have conspired to commit the offence of armed robbery as charged in count 1 in this case.
ARMED ROBBERY:
I now go to the second count of armed robbery. The essential ingredients of the offence of robbery for the prosecution to prove are:
i. That there was robbery/series of robberies;
ii. That the robber(s) were armed with firearms or offensive weapon; and
iii. That the Accused person participants (sic) in the robbery.
As stated earlier above, even though the 2 (two) Accused persons denied any knowledge of the offence of armed robbery during the evidence before the Court, the relevant contents of Exhibits “B” and “C” referred to above contained their confessional extra-judicial statements, where they both confessed and gave detail accounts of their role in the robbery alleged in this charge, and the statements remained uncontroverted.
The uncontroverted extra-judicial statements of the Accused persons as contained in Exhibit “B” & “C” clearly confirmed to me the truth of the facts presented in this case by the Prosecution in this case.
In the evidence of the PW1, PW2 and PW3, the Prosecution led evidence on how the armed robbery was carried out in Iwo, leading to the driving away of a Toyota Brilliance car by the Accused persons, and taken to Ibafo, Ogun State where the 2 (two) Accused persons were arrested by the Police in Ibafo when the Accused persons were attempting to dispose of the car, and how the Police in Ibafo took the statements of the Accused persons in which they admitted to have stolen the car, and how the Accused persons led Policemen from Ibafo to conduct an inspection of the scene of crime in Iwo, and how they were identified by the victim (the PW1) as the Accused persons were not masked at the time of the robbery and that there was light, before the case was transferred from Ibafo, Ogun State to Iwo.
The PW2 confirmed in Court that the case of conspiracy and armed robbery was later transferred from Iwo Police Station to the Osun State CID for further investigation, and after his investigation, he released the recovered Toyota Brilliance car to the PW1, on bond.
It was the PW3 that further conducted investigation into the armed robbery case, after the recovery of the Toyota Brilliance Car No. AA 835 LGB from the Accused persons, after they had robbed the PW1 of the car at Iwo, and were arrested at Ibafo, Ogun State, with the vehicle at the point of their selling it off, before luck ran out of them.
I am therefore satisfied that the Prosecution has proved the offence of armed robbery against the Accused persons beyond reasonable doubt. I have no doubt that there is no question of mistaken identity of the Accused persons and the product of the armed robbery, from the evidence presented before me.
The evidence of the Prosecution in this Court has been so cogent, and positive, without any contradictions.
But before I conclude on this, the Counsel to the Accused persons has spiritedly contended that the robbery carried out in this case was without arms, as the definition of “firearms” has been given to include common gun, riffle, revolver, pistol, explosives or ammunition or other firearms, whether whole or in detached pieces,
She contended that the Prosecution has failed to prove that the Accused persons possessed any firearms, as held by the Superior Courts, and that the PW1 never gave evidence that the Accused persons were armed with firearms at the time of the robbery, but that the PW2 and PW3, who were the Police Officers who testified that they were told that the complainant’s car was collected at gun point from her at her residence, and the PW1 testified under cross-examination that at the time of robbery, gun was pointed at her.
The Prosecution Counsel did not join issues with the Defence Counsel on the issue of firearms, but it was in evidence that a digger (Exhibit “I”) was used in digging a hole into the residence of the PW1 by the Accused persons. This was part of the Prosecution’s case.
I agree with the Defence Counsel that a “digger” has not been interpreted to be among the firearms, under our laws in this country, and that what makes an offence under the Act in which the accused persons were charged with armed robbery is the use of firearms as offensive weapon, and the proof of armed robbery case consists of proof that property has been fraudulently taken by an assault or by putting the fear of life or bodily injury into the victim, by both direct and circumstantial evidence,
But what of the gun the PW1 (an SSS personnel in her own right) said was pointed at her at the time of the robbery?
Although the digger was tendered and admitted as Exhibit “I”, there was no gun recovered or tendered by the Prosecution in this case.
The Supreme Court in the case of FATAI OLAYINKA VS. THE STATE 30 NSCQR 149 AT PP. 172-173, held that once the prosecution proves the ingredients of armed robbery beyond reasonable doubt, failure to tender the offensive weapon cannot result in the acquittal of the accused person, because of the possibility of the accused person doing away with the offensive weapon after the commission of the offence in order to exculpate himself from criminal responsibility, as nothing stops the accused person from throwing away or hiding the offensive weapon completely outside the investigative eyes of the Police. If there is compelling evidence that the accused person committed the armed robbery, failure to tender the offensive weapon, in the circumstances, cannot therefore be basis of acquittal.
I will pay due obeisance to the law by according this crucial evidence its pride of place in the adjectival law.
The heavy weather on the issue of use of arms in this robbery by the Accused persons at the time of the robbing the PW1 will therefore not be of any moment here.
Another reliance by the Accused persons’ Counsel in her Reply on point of law on the Prosecution’s final Written address concerns the need for identification of the Accused persons charged in this case. It is her contention that an identification parade ought to have been performed by the Police, and that its absence is fatal to the prosecution case. The learned Counsel also contended that once she objected to the tendering of the confessional statement on the voluntariness of its making, this Court ought to conduct a trial within trial, Again, the Prosecution Counsel did not make any attempt to join issue on these assertions.
I am however of the humble view that the Defence Counsel has a misconception about when identification parable is necessary in a case. It has been held by the Supreme Court in the case of IKEMSON VS. STATE (1987) 1 CLRN 1 at pages 18 and 24, that identification parade is not a sine qua non for identification in all cases where there has been fleeting encounter with the victim of a crime, if there is other evidence leading conclusively to the identity of the perpetrators of the offence.
It was further held that an identification parade is only essential in the following situations:
(a) …
(b) …
(c) …
From the circumstances of this case, I hold that an identification parade is unnecessary, moreso that the PW1 testified clearly that she saw the Accused persons on the date of the armed robbery clearly, who were unmasked and that there was electricity light at the time of the robbery, coupled with the fact that the Accused persons were the same people caught with the product of the armed robbery at the point of trying to dispose of the Toyota Car at Ibafo, Ogun State.
Furthermore, Miss Okwusidi claimed that she objected to the admissibility of the purported extra-judicial statements of the Accused persons on the ground of its involuntariness of making, and that the Court could have ordered a trial within trial. Again, the learned Counsel for the Accused persons has totally misconceived the facts and law on this point in her submission.
From the record, on 29/10/2015 when the PW2 sought to tender the Exhibits, Miss Okwusidi raised her objections on 3 (three) grounds, thus:
“(1) The witness is not the author of the statement.
“(2) The statements were taken in Ibafo and not Osogbo.
“(3) The Accused persons claimed that they were tortured at Ibafo before giving the statements.”
The Prosecution Counsel replied to her objection and contended that the statements in question were the ones made at the Osun State CID, and not the ones made at Ibafo, Ogun State, where the Accused persons were allegedly tortured, and that the PW2 who sought to tender the statements had his name as the recorder of the statements, which were counter-signed by the Accused persons.
On that, Miss Okwusidi applied to withdraw her objection, before the statements were duly admitted as Exhibits.
In the case of MADJEMU VS. STATE (2000) 2 CLRN at page 64 it was held that a trial-within-trial is to test the voluntariness of a statement sought to be tendered with objection that it was obtained by duress, undue influence, coercion or some other promises of temporal nature, but where the objection is that of total denial by the Accused person that he did not make the statement, then there is no need for trial-within-trial, but where the Accused person said he did not make the statement at all, then it is the trial Court that will rule at the conclusion of trial on whether the statement was made or not made by the accused person, and assess its weight in the final decision. In this case, the DW1 and DW2 denied ever making any statement at all at the State CID, Osogbo, but only at Ibafo Police Station, Ogun State.
Moreso, it is too late for the Counsel to the Accused person to now resile from the voluntariness of the statements of the Accused persons already admitted in evidence, with their consent during trial, up to the close of Prosecution’s case.
Moreover, the law is that where a confessional statement has been tendered and admitted without objections, its later retraction cannot vitiate proceedings. I hold that this later attempt to retract the confessional statements of the Accused persons in this case is a mere afterthought. See … On the whole, in the light of my legal analysis hereinabove, I hold that the Prosecution has succeeded in proving the 2 (two) counts against the 2 (two) Accused persons beyond reasonable doubt, and the issue submitted for determination is hereby resolved in favour of the Prosecution, but against the Accused persons, and they are pronounced guilty as charged.
I take cognizance of the prevalence of the offences of conspiracy and armed robbery in this State and the nation in general, and I am of the considered view that the Court has a duty to protect the society against the condemnable and wicked acts of the armed robbers and other criminal and therefore apply the punishment prescribed in the statute by the Legislature for those found guilty of the offences.
The two (2) convicts are therefore jointly and severally sentenced as follows:
For the offence of conspiracy, each of the 2 (two) convicts herein is sentenced to death as provided for under Section 2 of the Robbery and Firearms (Special Provisions) Acts (sic), Cap. R.11, Laws of the Federation of Nigeria, 2004, and as may be directed by the Governor of the State of Osun.
For the offence of armed robbery, each of the 2 (two) convicts herein is sentenced to death, as provided for under Sections 2 and 3 of the Robbery and Firearms (Special Provisions) Act, Cap. R.ll, Laws of the Federation of Nigeria, 2004 and as may be directed by the Governor of the State of Osun.
May God have mercy on both of you.”
Aggrieved by his convictions as well as the sentences passed on him, the Appellant on 13/3/2017 lodged at the registry of the lower Court a notice of appeal dated 21/2/2017. The said notice of appeal contained one ground of appeal. The said ground, presumably or purportedly an omnibus ground of appeal, reads thus: –
“That the decision of the High Court is unreasonable and cannot be supported having regard to the weight of evidence.”
On 25/11/2021, the Appellant, pursuant to a motion on notice dated 16/11/2021 and filed on 24/11/2021, was granted leave by this Court to amend the notice of appeal filed on 13/3/2017. The said amended notice of appeal is dated 16/11/2021 and filed on 24/11/2021. The grounds of appeal and particulars as contained in the amended notice of appeal upon which the appeal was argued read thus: –
“GROUND 1
The learned trial Judge erred in law when his lordship said at page 102 as follows:
“In the case of Ikemson v The State (1989) ICLRN 23, it was held that an offence of conspiracy can be committed (sic) where persons have acted either by agreement of in concert”.
In this present case, although both the DW1 and DW2, the two accused persons denied any knowledge of the charge brought against them in their evidence in Court, but their extra-judicial statement contained in exhibits B, C and D respectively particularly their extra-judicial statement contained in the folios of Exhibit “E” transferred from Ibafo, Ogun State to Osun State show a contrary position to their later testimonial evidence in Court.”
PARTICULARS OF ERROR
1. The learned trial Judge should not have relied on the file allegedly brought from Ogun State since the maker of the documents therein was not called as a witness.
2. All the documents contained in the file are hearsay which are not admissible in evidence.
3. The maker of the file is a necessary witness who must testify to let his document become admissible in evidence.
GROUND 2
The defendant was not properly identified before being put to trial.
PARTICULARS OF ERROR
1. The officers who arrested the defendant is a necessary witness (sic) to come and tell the Honourable Court how the defendant was arrested.
2. Except where the defendant was arrested at the scene of the crime there is need for identification parade since the victim said he cannot even identify the defendant.
GROUND 3
All evidences given in the defendants’ case are hearsay evidence.
PARTICULARS OF ERROR
1. None of the witnesses in this case is aware of the arrest of the defendant.
2. None can identify the defendant including the victim.
GROUND 4
The judgment is against the weight of evidence
PARTICULARS OF ERROR
1. The honourable Court did not avail himself the opportunity of seen (sic) the witness to decide the case.
2. There is sufficient doubt created in the mind of the Court to enable the Court resolve the case in favour of the defendant.”
The reliefs sought by the Appellant from this Court in this appeal in the amended notice of appeal, are: (i) an order of the Court allowing the appeal; (ii) the setting aside of the judgment and orders of the lower Court; and (iii) that the Appellant be acquitted and discharged.
On 3/3/2022 when the appeal came up for hearing in this Court, parties were absent with no legal representation for either of them. Having duly ascertained that both parties were served with hearing notices, the Court proceeded to deem the appeal as having been argued upon the briefs of argument regularly filed before it. Appellant’s amended brief of argument is dated 16/11/2021 and filed on 24/11/2021 but deemed as properly filed and served on 25/11/2021. The said brief was settled by Prince Abioye A. Oloyede-Asanike. Respondent’s amended brief of argument dated 21/12/2019 and filed on 21/12/2021 was settled by learned Law Officer, Bamidele Salawu, Chief State Counsel, Osun State, (hereafter to be simply referred to as “learned C.S.C”).
I cannot but observe that ground 4 in the amended notice of appeal lodged in the instant appeal, is basically an omnibus ground of appeal. Indeed, it is a variant as it were of the only or sole ground of appeal contained in the original or initial notice of appeal that was filed by the Appellant on 13/3/2017. The said ground reads thus: –
“The judgment is against the weight of evidence.”
In my considered view, it is obvious that the manner in which the omnibus ground of appeal in ground 4 of the amended notice of appeal re-produced above, has been couched; and indeed, the sole ground of appeal contained in the original notice of appeal lodged on 13/3/2017, is as put in place by the law as being appropriate in a civil appeal. This is because the determination of a civil case before a trial Court is founded on a balance of probability or preponderance of evidence; and the judgment of the Court is based upon the strength of the evidence adduced by the parties. In a criminal matter where the prosecution at all times or throughout the trial has the burden of proving the offence(s) preferred against an accused person (Appellant in the instant appeal) beyond reasonable doubt, the omnibus ground of appeal is to be couched thus: –
“that the verdict is unreasonable or cannot be supported having regard to the evidence”.
It is the position of the law that couching of an omnibus ground of appeal in a criminal appeal in the same manner that obtains in a civil appeal, is unacceptable. Even though there are some decisions of the Supreme Court, namely, DAGAYYA V. STATE (2006) LPELR-912(SC) and SHEHU V. STATE (2010) LPELR-3041 (SC) amongst others, wherein the lapse or error in couching an omnibus ground of appeal in a criminal appeal, in a manner suitable in a civil appeal, has been overlooked and relying in this regard on what the said Supreme Court stated to be the “per incuriam position” it took in the case of Mbam Iboko & Ors. V. Police (1965) NMLR 384, the present position of the law, in my considered view is now that such a lapse should no longer be tolerated or accepted. This is so, despite the nature or seriousness of the case as was countenanced by the Supreme Court in the case of ABASI V STATE (1992) LPELR-20(SC). In this regard see the case of SANMI V. STATE (2019) LPELR-47418(SC) (a case of armed robbery) wherein the Supreme Court stated thus: –
“The 8th ground of appeal is a ground known to civil appeals only. It reads as follows:
”8. The judgment of the lower Court is against the weight of evidence on the record.
PARTICULARS OF ERRORS
1. The evidence of the Appellant was not properly evaluated and appraised by the lower Court.
2. The judgment of the lower Court is in utter contradiction with the evidence on Record.
3. The decision of the lower Court cannot be supported by the weight of evidence on the Record.
4. There is no evidence which supports the finding of the lower Court.
5. When the evidence adduced by the Appellant is weighed against that given by the Respondent the judgment rendered to the Respondent is against the totality of the evidence on the Record.
6. By reason of the premise of sub-paragraphs 17 above, the judgment of the lower Court is unreasonable, unwarranted and unmeritorious.”
A criminal appeal on the facts is not quite the same as an appeal on the facts in a civil case. In a civil appeal, the general ground is that the judgment is against the weight of evidence, whilst in a criminal appeal it is that the verdict is unreasonable or cannot be supported having regard to the evidence. Civil matters are decided on the preponderance of evidence, that is, when the evidence adduced by the appellant is weighed against that which is adduced by the respondent. In criminal cases, the Court does not embark on such exercise, instead, the prosecution must prove his case beyond reasonable doubt. So it is wrong to couch a ground that is not in conformity with this proof. See Atuyeye & Ors vs Ashamu (1987) 18 NSCC (Pt. 1) 117 at 118 119. The 8th ground of appeal has not accused the lower Court or any Court for that matter of committing error in the way it attended to the decision of the trial Court. The need for particulars of error as enumerated in support of the 8th ground of appeal does not arise at all. It is a wasteful exercise from which no benefit has accrued to the Appellant.
Finally, on the 8th ground of appeal, omnibus ground of appeal is not suitable at this stage, as assessment of evidence and ascription of probative value to such evidence was carried out at the trial Court. I find the 8th ground of appeal incompetent and accordingly same is struck out as well.
The 4th issue for determination of this appeal is distilled from the incompetent grounds 7 and 8 as well as competent grounds 9 and 10 of the grounds of appeal. Clearly, there is no way I can sift out arguments in respect of the competent grounds of appeal from incompetent grounds of appeal in the circumstance of this appeal.
Accordingly, the 4th issue for determination of this appeal, having been distilled from incompetent and competent grounds of appeal, is incompetent as well. It is struck out…
In the instant case therefore, it becomes obvious that the sole ground of appeal in the original notice of appeal filed on 13/3/2017; (and indeed, the whole of the amended notice of appeal and not only Ground 4 therein), being glaringly incompetent, as the said sole ground of appeal in the original notice was not couched in a manner recognized as an omnibus ground of appeal, in a criminal appeal, is liable to be struck out. I will revert to the issue of the competence or otherwise of the original notice of appeal lodged on 13/3/2017, by the Appellant and his amended notice of appeal deemed as properly filed and served on 25/11/2021, later in this judgment.
This is because I consider it worthy to first observe that there is in the case file a notice of preliminary objection (hereafter to be simply referred to as “Notice of P.O.”) dated 21/10/2019 and filed on 1/7/2020 by learned C.S.C. Therein, the Respondent seeks for: –
“1. An order striking out grounds 1 and 2 of the notice of appeal dated 21st February, 2017 but filed on 13th March, 2017 by the Appellant for being incompetent.
2. An order striking out the Appellant’s sole issue as formulated in the brief of argument dated 8th June, 2019 but filed 14th June, 2019 and the arguments thereon same having been predicated on the said incompetent grounds 1 and 2 of the notice of appeal dated 21st February, 2017 but filed on 13th March, 2017.”
This notice of P.O. was filed before the Appellant lodged an amended notice of appeal in the instant appeal containing 4 grounds of appeal and which was deemed as properly filed and served on 25/11/2021. In my considered view, the Respondent would appear to have apparently considered the amendment to the original notice of appeal to have rendered its P.O. in the notice it filed otiose. This is because, the Respondent having not argued the P.O. it raised in its notice, in the amended brief of argument it filed in this appeal, and equally having not attended Court at the hearing of the appeal (even if the said P.O. had been argued in the said amended brief of argument), it becomes obvious that the said notice of P.O. must be deemed as having been abandoned and must be struck out on the ground of its abandonment. Accordingly, the said notice of P.O. filed on 1/7/2020 by the Respondent in this appeal, is struck out as the same is deemed abandoned as it were, as it was not argued in the amended brief of argument of the Respondent or at all, prior to the hearing of the appeal.
I have stated herein before, to the effect that I will revert to the issue of the competence or otherwise of the original notice of appeal lodged on 13/3/2017, by the Appellant and his amended notice of appeal deemed as properly filed and served on 25/11/2021, later in this judgment. This is because despite the striking out of the Respondent’s notice of P.O., I am of the considered view that this Court being a Court whose jurisdiction to entertain an appeal on the merit can only be activated upon the filing of a valid and non-defective notice of appeal, cannot and should not simply overlook or allow the issue as to the competence of the original notice of appeal and amended notice of appeal predicated on the said original notice of appeal, in the instant appeal to be swept under the carpet. After all, it is settled law that parties cannot by their acts of omission or commission, or agreement confer jurisdiction on a Court in respect of any matter in which the jurisdiction of the Court has not been properly invoked. See in this regard the case of ADEYEMI V. STATE (1991) LPELR-172(SC) wherein the Supreme Court dwelling on “whether jurisdiction can be conferred on the Court by parties” stated thus:
“It is pertinent to observe that parties cannot confer jurisdiction on the Court where it has none or can have none. Thus where the Court has no jurisdiction and the act done without jurisdiction is a nullity. The fact that appellant co-operated did not clothe it with jurisdiction and the consequent act with validity.”
See also the case of BRAITHWAITE V. SKYE BANK PLC (2012) LPELR-15532(SC) wherein the Supreme Court also dwelling on “whether a Court without jurisdiction can confer one on itself” stated thus: –
“A writ of summons is an originating process by means of which actions are commenced. The competence of such process is a pre-requisite for a valid and subsisting claim. Where the process fails to comply with the requirement of the law regulating its procedure, the Court cannot assume jurisdiction thereon.
Jurisdiction of a Court is constitutional. No Court can therefore confer jurisdiction upon itself, nor can parties by their mutual agreement also confer any jurisdiction. A defective originating process cannot activate the Court’s jurisdiction.”
The fundamentality of “jurisdiction” to the discharge by a Court of its adjudicatory powers is so awesome or encompassing that it is undoubtedly an issue of law which the law allows a Court to raise suo motu and to resolve without calling on the parties to address it on the said issue. See in this regard the case of GBAGBARIGHA V. TORUEMI (2012) LPELR-15535(SC), (2013) 6 NWLR (Pt. 1350) 289 wherein the Supreme Court stated thus: –
“When a Judge raises an issue on his own motion, or raises an issue not in the contemplation of the parties, or an issue not before the Court, the Judge is said to have raised the issue suo motu. The well laid down position of the law is that when an issue is raised suo motu the parties should be heard before a decision is reached on the issue. This is what procedural fairness entails. See:…
but there is an exception to this procedure. There would be no need to call on counsel to address the Court on an issue raised suo motu by the Judge –
1. When the issue relates to the Court’s own jurisdiction;
2. When both parties are not aware or ignored a statute which may have bearing on the case; or
3. When on the face of the Record serious questions of the fairness of the proceedings is evident. See …”
See also the cases of ANGADI V. PDP (2018) LPELR-44375(SC); EFFIOM V. CROSIEC (2010) LPELR-1027(SC); and OMINIYI V. ALABI (2015) LPELR-24399(SC) wherein the Supreme Court stated thus: –
“The settled position of the law, as correctly stated by learned counsel on both sides is that Court is not entitled to raise an issue suo motu and decide on it without affording the parties an opportunity to be heard. This is because in doing so the Court is seen to leave its exalted position as impartial arbiter and descend into the arena of conflict. See:… There are a few exceptions to this general rule.
In the case of Effiom V. C.R.O.S.I.E.C. (2010) 14 NWLR (Pt. 1213) 106, relied upon by learned counsel for the respondent, this Court reiterated the general principle stated above. His Lordship, Tabai, JSC, who wrote the lead judgment went on to state at pages 133 – 134 H-A (supra):
“As I indicated above this principle that the Court ought not to raise an issue suo motu and decide upon it without hearing from the parties applies mainly to issues of facts. In some special circumstances, the Court can raise an issue of law or jurisdiction suo motu and without hearing the parties decide upon it. Tukur V. Government of Gongola State (1989) 4 NWLR (pt.117) 517 is instructive on this point. In that case, although the issue of venue was not raised and argued by the parties in their briefs, it being an issue of jurisdiction, was taken by Court. In the instant case therefore the Court below would be at liberty to raise the issue of locus standi of the appellants if such an issue was relevant to the proper determination of the case. It is to be noted however that the issue of locus standi of the plaintiffs/appellants was raised at the trial Court and effectively determined therein in favour of the appellants. The respondent did not appeal against it and so it was not an issue before the Court below. It was irrelevant and so the Court’s deliberation on it was an exercise in futility.”
The rare exceptions to the general rule were further elucidated in the case of Omokuwajo Vs F.R.N. (supra) at 332 B-F where His Lordship Rhodes-Vivour, JSC in his concurring judgment stated:
“The need to give the parties a hearing when a Judge raises an issue on his own motion or suo motu would not be necessary if:
(a) the issue relates to the Court’s own jurisdiction.
(b) both parties are/were not aware or ignored a statute which may have a bearing on the case. That is to say where by virtue of a statutory provision the Judge is expected to take judicial notice. See Section 73 of the Evidence Act.
(c) when on the face of the record serious questions of fairness of the proceedings is evident.”
In any event in my considered view, it is even doubtful if the jurisdictional issue in respect of the validity and non-defectiveness of the notice of appeal lodged by the Appellant in the instant appeal can be said to be an issue which parties were never aware of at all material times to the hearing of the appeal. Parties (particularly the Appellant) in my considered view were very aware of the defectiveness of the notice of appeal lodged on 13/3/2017. All that has happened in the instant appeal, is that the Appellant conceived an amendment of or to the notice appeal, as a cure to or of the defectiveness of or in the original notice of appeal as raised by the Respondent; while the Respondent inferentially being under the misconception that the amendment of the original notice of appeal had cured the defects therein, never pursued its P.O. in respect of the original notice of appeal. Alas, it is a legal fallacy to expect a defective notice of appeal to be cured by an amendment. This is because the position of the law in this regard, has consistently been that a defective notice of appeal cannot be cured by an amendment. See the case of OKWUOSA V. GOMWALK (2017) LPELR-41736(SC) wherein the Supreme Court stated thus: –
“A notice of appeal has been described as the “spinal cord” of an appeal. It is the originating process, which sets the ball rolling for the proper, valid and lawful commencement of an appeal. Where the notice of appeal is defective, no appeal can stand. See: Aderibigbe & Anor. v. Tiamiyu (2009) 10 NWLR (Pt. 1150) 592 AT 614 E-G; In re: Otuedon (1995) 4 NWLR (Pt. 392) 655: Ebokam v. Ekwenibe & Sons Trading Co. Ltd. (1999) 10 NWLR (Pt. 622) 242.
The law is also trite that an incurably defective process cannot be amended nor can anything be added to it, the well-known adage being that you cannot put something on nothing and expect it to stand. See: Nwaigwe v. Okere (2008) 5 SCNJ 256 AT 274.
I therefore resolve this issue in favour of the appellant. I am thus in complete agreement with my learned brother, EJEMBI EKO, JSC that there was no valid appeal before the lower Court and the proceedings thereat amounted to a nullity.”
See also the case of IKUEPENIKAN V. STATE (2015) LPELR-24611(SC) wherein the Supreme had earlier stated thus: –
“However, this is not the position here. Dr. Ayeni’s submission on this point is nothing but a contorted version of the settled position that a Notice of Appeal is the most important step in the initiation of an appeal. Where it turns out to be defective, the appeal would have to be considered incompetent. The cases on this point are many. Only a handful will be cited here:… As this Court held in Uwazurike and Ors v. AG, Federation (supra), a Notice of Appeal is the foundation and substratum of every appeal. Any defect therein will render the whole appeal incompetent and the appellate Court will lack the required jurisdiction to entertain it, … Having found that the Notice of Appeal is defective and therefore, incompetent, I am left with no other option than to strike out the appeal in its entirety. This simply means that the resolution of the main issues shall abide by the enlistment of a competent appeal (if and whenever such a competent process is initiated). For now, there is no competent appeal before this Court,.. This Court, therefore, lacks the jurisdiction to entertain the agitation of the appellant.”
Again, see the decision of this Court in the case of MOBIL OIL NIGERIA PLC V. YUSUF (2012) 9 NWLR (Pt. 1304) 47 AT PAGES 54-59.
In this judgment, I have hereinbefore stated “In the instant case therefore, it becomes obvious that the sole ground of appeal in the original notice of appeal filed on 13/3/2017; (and indeed, the whole of the amended notice of appeal and not only Ground 4 therein), being glaringly incompetent, as the said sole ground of appeal in the original notice was not couched in a manner recognized as an omnibus ground of appeal, in a criminal appeal, is liable to be struck out. Suffice, it to say that as I do not see how this Court can suo motu cure the defect in the original notice of appeal upon which the amended notice of appeal upon which the instant appeal was argued, I am duty bound to set aside the order of this Court amending the incompetent original notice of appeal which has no valid ground of appeal and terminate the appeal at this stage by striking it out on the ground of the incompetence of the said original notice of appeal lodged by the Appellant on 13/3/2017. This is in accordance with the position of the law that a Court eminently has the jurisdiction to set aside its earlier decision or order made without jurisdiction. See in this regard the case of OBIMONURE V. ERINOSHO (1966) LPELR-25301(SC) wherein the Supreme Court long ago stated thus: –
“The High Court held that the order could only be set aside on appeal, but the Court of Appeal held that the defendant was entitled ex debito justitiae to have it set aside by the Court which made it. In delivering the judgment of the Court, Lord Greene M.R., drew attention [at p. 258] to “the distinction between proceedings or orders which are nullities and those in respect of which there has been nothing worse than an irregularity”. After considering a number of cases which turned on the distinction he said [at pp. 262-263] – “Those cases appear to me to establish that a person who is affected by an order which can properly be described as a nullity is entitled ex debito justitiae to have it set aside. So far as procedure is concerned, it seems to me that the Court in its inherent jurisdiction can set aside its own order, and that it is not necessary to appeal from it. I say nothing on the question whether or not an appeal from the order, assuming it to be made in proper time, would be competent….”
See also the case of KPEMA V. STATE (1986) LPELR-1713(SC) wherein the Supreme Court stated thus: –
“In Daniell’s Chancery Practice 8th Ed. Vol:1 at p. 708, the learned author wrote: – “A judgment obtained by some steps not warranted by the rules or capable of being sanctioned is wholly void and can be set aside …Where the proceedings are wholly void they may be set aside at any time.”
The question may now be asked – Does the expression “at any time” include during an appeal either to the Court below or to this Court? My answer will be yes.
In the case now on appeal, the Court below held that there was no appeal before it. Assuming that the Court was right in so holding (the fact is that the Court below was wrong) could it have nonetheless had jurisdiction to declare the void judgment of Aghahowa, J. void? When a judgment is a nullity, then it is null and void ab initio. It is automatically void from the time it was delivered without much ado. It is sometimes convenient to have the Court declare it to be so: – … De Silva delivering the judgment of the Privy Council observed:
“A Court had inherent power to set aside a judgment which it had delivered without jurisdiction. Lord Greene, M.R., in Craig v. Kanseen (1943) 1 All E.R. 108 at p. 113) after referring to several decisions, had said: –
Those cases appear to me to establish that an order which can properly be described as a nullity is something which the person affected by it is entitled ex debito justitiae to have set aside. So far as the procedure for having it set aside is concerned, it seems to me that the Court in its inherent jurisdiction can set aside its own order; and an appeal from the order is not necessary.”
Their Lordships were of the same opinion.
Assuming the Judge had no power on June 29th, 1949, to review his judgment of May 10th, 1949, he nevertheless had power to declare it a nullity and proceed to give a fresh judgment. (The italics is mine)
Applying the same principle, assuming the Court of Appeal had no jurisdiction to hear this appeal for the reason given, it still had jurisdiction to declare the judgment of Aghahowa, J. void. That jurisdiction was inherent. In circumstances like this, the Court acts upon an obligation and the order to set aside or declare the judgment of Aghahowa, J. of 5/4/82, delivered contrary to Section 258(1) of the 1979 Constitution, null and void will be made ex debito justitiae. The Court of Appeal was therefore in error in not declaring that judgment void and in not setting it aside.
The case is now before us on appeal. The Court had earlier on held that the Court of Appeal was wrong in holding that it had no power to extend the time within which the Appellant could properly appeal against the void judgment of Aghahowa, J.
Now that the judgment is before us, I hold the view that this Court also has inherent jurisdiction to set aside that judgment of the learned trial Judge, which was completely void ab initio, as null and void.
In the final result and for the reasons given above and also the reasons in the lead judgment of my learned brother Uwais, J.S.C., with which I hereby concur, this appeal is allowed, the judgment of the trial Judge is set aside and it is hereby ordered that the Appellant be properly tried by a competent High Court in Gongola State.”
See again, the case of MARK V. EKE (2004) LPELR-1841(SC) wherein the Supreme Court stated thus: –
“The law is settled that any Court of record including the Supreme Court, see Olabanji v. Odofin (1966) 2 SCNJ 242 at 247; (1996) 3 NWLR (Pt. 435) 126, has the inherent jurisdiction to set aside its own judgment given in any proceeding in which there has been a fundamental defect such as one which goes to the issue of jurisdiction and competence of the Court.
Such a judgment is a nullity. A person affected by it is therefore entitled ex debito justitiae to have it set aside. The Court can set it aside suo motu and the person affected may apply by motion and not necessarily by way of appeal. See… This is common sense that if a Court makes an order which it has no jurisdiction or competence to make, it has the jurisdiction to rescind the order so as to restore the status quo. See …”
Indeed, I must state that even if this Court has a discretion to exercise in the matter (and which is not conceded), I will not exercise the same in favour of the Appellant because what the Appellant has done in the circumstances of the instant appeal was to create what he conceived as a fait accompli by amending an incompetent notice of appeal with the expectation that the Court will have no choice than to entertain the said appeal on the merit. This type of attitude should not be encouraged.
In the final analysis, this appeal must be and is hereby struck out for the incompetence of the original notice of appeal inasmuch as the sole ground of appeal therein is not a valid ground of appeal in a criminal appeal. Guided by the cases cited hereinbefore, the Appellant certainly still has the opportunity to go back to the drawing board and initiate a valid appeal by lodging a valid notice of appeal.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now, the lead judgment delivered by my learned brother, Ayobode Olujinmi Lokulo-Sodipe, JCA. His Lordship has considered and resolved the appeal. I am constrained by peculiar circumstances to abide by the conclusion reached therein.
YUSUF ALHAJI BASHIR, J.C.A.: I have had the opportunity of reading in draft, the lead judgment of my learned brother, AYOBODE O. LOKULO-SODIPE, JCA.
I agree that the notice of appeal is indeed incompetent and must be struck out on that ground. There is therefore no appeal left to be determined.
I abide by the conclusion of his lordship.
Appearances:
…For Appellant(s)
…For Respondent(s)
