ABUBAKAR v. STATE
(2020)LCN/14526(CA)
In The Court Of Appeal
(JOS JUDICIAL DIVISION)
On Tuesday, July 28, 2020
CA/J/499/C/2018
Before Our Lordships:
Tani Yusuf Hassan Justice of the Court of Appeal
Mudashiru Nasiru Oniyangi Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Between
DAHIRU ABUBAKAR APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT GROUND OF APPEAL MUST BE ROOTED FROM THE RATIO DECIDENDI OF THE JUDGMENT APPEALED AGAINST
It is trite that ground of appeal must be rooted from the Ratio decidendi of the judgment appealed against, see NGIGE V OBI (2006) 14 NWLR (Pt. 999) 1 at 240. That is to say that for a ground of appeal to be competent it must arise from and relate to the decision of the trial Court appealed against, CHIEF CLEMENT O.C OKAFOR V. ANTHONY ABUMOFUANI (2016) LPELR – 40299. For a ground of appeal to be competent, it must be a challenge to the particular finding of the Court and its decision. See OGUNBAYO V THE STATE (2007) 3 SCNJ 199, EZUKWU V. UKACHUKWU (2004) 7 SCNJ 189, MR. GABRIEL JIM – JAJA V. COMMISSIONER OF POLICE RIVERS STATE AND ORS (2012) LPELR – 20621. It therefore suffices to say that all the grounds of appeal are at cross purposes to the judgment appealed against. PER ONIYANGI, J.C.A.
WHETHER OR NOT AN INCOMPETENT GROUND OF APPEAL CANNOT GIVE RISE TO A COMPETENT ISSUE FOR DETERMINATION
It is trite that an incompetent ground of appeal cannot give birth to a competent issue for determination. See AKPAN V. BOB (2010) 17 NWLR (Pt. 1223) 421, FAGUNWA AND ANOR V. ADIBI AND ORS (2004) 7 SCNJ 322. The issues for determination in this appeal are not product of the ground of appeal and hence they are liable to be struck out more so in this instance where there is no competent ground of appeal. See AFRICAN PETROLEUM LTD V. OWODUNNI (1991) 8 NWLR (210) 391, EKEMMUO V. DURU (2006) ALL FWLR (304) 504, MR ZANG AND ANOR V. EMMANUEL ITUMA AND ORS (2014) LPELR- 23521. PER ONIYANGI, J.C.A.
MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): This judgment is predicated on the appeal by the Appellant DAIRU ABUBAKAR vide his Notice of Appeal dated 30th August, 2018 and filed on 4th day of September, 2018 against the judgment of High Court of Justice Bauchi State in case No. BA/39C/2014 wherein the Appellant was arraigned with an offence of culpable homicide punishable with death contrary to Section 221 of the Penal Code Law of Bauchi State.
In order to establish the guilt of the Appellant (Accused) the prosecution called six witnesses and tendered Exhibits A1, A2 and B. The Accused (Appellant) gave evidence in his defence as DW1 and called one witness DW2.
The summary of the fact of the case is that the Appellant and the deceased (Babangida Aminu Haruna one time) had a fight and in the course of the fight, the accused Appellant brought out a knife and allegedly stabbed the deceased somewhere in the stomach and which allegedly resulted into the death of the deceased at the venue described as A.M. Kantana Filling Station in Azare town Bauchi State. On seeing the deceased lying on the ground, the Appellant threw away the knife
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and ran away. A call was made by one of the security men at the Petrol Station to Alhaji Jamilu Ali a staff of the Petrol Station, who testified as PW1 and who reported the incident to the Police. The Appellant was apprehended, detained and charged to Court for an offence of culpable homicide punishable with death contrary to Section 221 of the Penal Code Law of Bauchi State. He pleaded not guilty to the offence. The matter went into full trial.
At the end of the trial, the learned trial Judge in his considered judgment delivered on the 31st day of March, 2017 found the Appellant (Accused) guilty of an offence of culpable homicide not punishable with death contrary to Section 224 of the Penal Code Law of Bauchi State and sentenced the Appellant to a 25 years jail term. The period the Appellant had spent in custody will be part of the 25 years jail term.
The Appellant is not happy with the outcome of the trial and hence this appeal.
The notice of appeal was filed on the 4th day of September, 2018. Therein are five grounds of appeal. The Record of Appeal was transmitted out of time on the 11th day of April, 2019. By the order of this Court granted
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on the 11th day of June, 2019 consequent upon hearing the Motion on Notice by the Appellant dated 27th May, 2019 and filed on 3rd June, 2019, the said record of appeal was deemed as properly filed and served.
The Appellant’s brief of argument was also filed out of time on the 14th day of October, 2019. Same was deemed as duly filed and served on the 22nd day of January, 2020 consequent upon hearing the Motion on Notice by the Appellant dated and filed on 14th October, 2019.
In the said Appellant’s brief of argument, the following four issues were submitted for the determination of the appeal.
(1) Whether the trial, conviction and subsequent sentence to a term of 25 years imprisonment passed against the Appellant by the Lower Court is justified notwithstanding the failure of the Respondent to comply with the provision of Section 17 of the Administration of Criminal Justice Act, 2015. [Distilled from Ground 4 in the Notice of Appeal]
(2) Whether the Lower Court rightly convicted and sentenced the Appellant to a term of 25 years imprisonment in the light of manifest contradictory witness? [Distilled from ground 3 in the Notice of
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Appeal.]
(3) Whether the prosecution at the trial established beyond reasonable doubt against the Appellant in accordance with the provision of Section 135(1) of the Evidence Act, 2011 the commission of any criminal act known to Law? [Distilled from Ground 1 in the Notice of Appeal]
(4) Whether upon an evaluation of the entire evidence by parties before the lower Court, the conviction of the Appellant in the circumstance was right? [Distilled from Ground 2 in the Notice of Appeal].
On behalf of the Respondent, the brief of argument dated 19th November, 2019 was filed out of time on the 20th day of November, 2019. Same was deemed as properly filed and served by the order of this Court granted on the 22nd day of January, 2020. In paragraph 3.0 of the said Respondent’s brief, the issues formulated by the Appellant are unequivocally adopted by the Respondent.
In the light of the foregoing, the four issues submitted by the Appellant would be considered for the determination of this appeal. But before then, I have observed that there are five grounds of appeal contained in the Notice of Appeal under reference. Four issues are distilled from
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the grounds, 1, 2, 3 and 4 respectively. There is none from ground 5. This simply mean that ground 5 is abandoned.
In consequence of that therefore, ground 5 contained in the Notice of Appeal is hereby struck out. See HUSSEINI V. MOHAMMED (2005) LPELR – 7520, AFRICAN PETROLEUM PLC V DAVID ABORISADE AND ANOR (2013) LPELR – 20362, DAKOLO V ROWANE DAKOLO (2011) 6 NWLR (Pt. 1272) 22, INEC V NYAKO (2011) 2 NWLR (Pt. 1262) 439, OHAKA V EZE (2010) ALL FWLR (Pt. 525) 380, CHIME V. CHIME (2001) 2 NWLR (Pt. 701) 527 at 550,ALIMI AKANBI DADA V. CHIEF JONATHAN DOSUNMU (2006) 18 NWLR (Pt.1010) 134.
Now on the four issues adopted for determination of this appeal. Upon a careful reading of the four issues submitted by the Appellant and grounds 1, 2, 3 and 4 from where the Appellant formulated the four issues, it became clear to me that the four grounds of appeal contained in the Notice of Appeal are accusing the trial Court of committing an error of law in convicting the Appellant of the offence of culpable homicide punishable with death contrary to Section 221 of the Penal Code Law of Bauchi State. See pages 189-191. For avoidance of any doubt, I herein under
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reproduce the four grounds of appeal thus:
GROUNDS OF APPEAL
GROUND 1
The Court erred in law in convicting the Appellant of the offence of culpable homicide punishable with death contrary to Section 221 of the Penal Law of Bauchi State, when the prosecution has failed to prove its case beyond reasonable doubt that culpable homicide was actually committed on 4/5/2020 by the Appellant.
GROUND 2
The Court erred in law in convicting the Appellant of the offence of culpable homicide punishable with death contrary to Section 221 of the Penal Code Law of Bauchi when the prosecution has failed to prove that even if there was disagreement and fight between the Appellant and the deceased on 4/5/2010 it was a culpable homicide with (sic) resulted in the Death of the deceased.
GROUND 3
The Court erred in law in convicting the Appellant of the offence of culpable homicide punishable with death contrary to Section 221 of the Penal Code Laws of Bauchi Statewhen the prosecution has failed to prove beyond reasonable doubt that even if the fight and disagreement between the Appellant and the deceased on 4/5/2010, the Appellant was one of
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those who actually participated in what resulted in culpable homicide to the death of the deceased (sic)
GROUND 4
The Court erred in law in convicting the Appellant of the offence of culpable homicide punishable with Death contrary to Section 221 of the Penal Code Laws of Bauchi State when the confessional statement was retracted by a plea of “NOT GUILTY” and same confessional statement was obtained in the absence of the Defendant/Appellant’s Counsel.
(UNDERLINE IS MINE)
Whereas the Court actually found the Appellant guilty of the offence of culpable homicide not punishable with death contrary to Section 224 of the Penal Code Law. See page 188 of the record of appeal. I herein under reproduce the relevant part of the judgment on page 188 of the record of appeal thus:
“Having raised doubt on the last ingredient of the offence of culpable homicide punishable with death, I found you Dairu Abubakar guilty of the offence of culpable homicide not punishable with death under SECTION 224 OF THE PENAL CODE LAW OF BAUCHI STATE. I have power under Section 218 (2) of the CPC to convict you of a lesser offence.
The
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punishment under Section 224 of the Penal Code Law of Bauchi State Cap. 108 Vol. 3 Laws of Bauchi State 2007 (sic) is life imprisonment or any less term with fine or both.
What have you to say in mitigation of sentence?
Accused:- Pleaded for leniency
I spent more than 7 years in prison, my father died while I was in prison, l am a student at Government Day Secondary School Azare.
Court:- I have listened to the plea of the accused person (sic) for leniency.
I have considered his stay in prison and I hereby convict him to (sic) 25 years imprisonment including of the years he spent in prison”
(UNDERLINE IS MINE)
From the foregoing it goes without saying and unambiguously clear that the Appellant was never convicted nor sentenced under Section 221 of the Penal Code Law of Bauchi State for culpable homicide punishable with death but under Section 224 of the Penal Code Law of Bauchi State for culpable homicide not punishable with death. It is trite that ground of appeal must be rooted from the Ratio decidendi of the judgment appealed against, see NGIGE V OBI (2006) 14 NWLR (Pt. 999) 1 at 240. That is to say that for a ground
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of appeal to be competent it must arise from and relate to the decision of the trial Court appealed against, CHIEF CLEMENT O.C OKAFOR V. ANTHONY ABUMOFUANI (2016) LPELR – 40299. For a ground of appeal to be competent, it must be a challenge to the particular finding of the Court and its decision. See OGUNBAYO V THE STATE (2007) 3 SCNJ 199, EZUKWU V. UKACHUKWU (2004) 7 SCNJ 189, MR. GABRIEL JIM – JAJA V. COMMISSIONER OF POLICE RIVERS STATE AND ORS (2012) LPELR – 20621. It therefore suffices to say that all the grounds of appeal are at cross purposes to the judgment appealed against. The Appellant was never found guilty nor convicted for culpable homicide punishable with death contrary to Section 221 of the Penal Code Law of Bauchi State. Rather the Appellant was convicted and sentenced under Section 224 of the said law. My conclusion on the foregoing is that the grounds 1, 2, 3 and 4 are incompetent.
Having said this, it then stands to reason that the issues formulated from those incompetent grounds of appeal are also incompetent and of no probative value. It is trite that an incompetent ground of appeal cannot give birth to a competent
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issue for determination. See AKPAN V. BOB (2010) 17 NWLR (Pt. 1223) 421, FAGUNWA AND ANOR V. ADIBI AND ORS (2004) 7 SCNJ 322. The issues for determination in this appeal are not product of the ground of appeal and hence they are liable to be struck out more so in this instance where there is no competent ground of appeal. See AFRICAN PETROLEUM LTD V. OWODUNNI (1991) 8 NWLR (210) 391, EKEMMUO V. DURU (2006) ALL FWLR (304) 504, MR ZANG AND ANOR V. EMMANUEL ITUMA AND ORS (2014) LPELR- 23521.
In all I come to the inevitable conclusion that both the grounds 1, 2, 3 and 4 and the issues 1, 2, 3 and 4 formulated from the said grounds are incompetent, hence they are hereby struck out.
Having struck out the grounds of appeal and the issues thereto, this appeal is lifeless and suffers a still birth and hence same be and is hereby struck out.
TANI YUSUF HASSAN, J.C.A.: I read in draft the judgment just delivered by my learned brother, MUDASHIRU NASIRU ONIYANGI, JCA. I also strike out the appeal for being incompetent.
BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead judgment of my learned brother MUDASHIRU NASIRU ONIYANGI, J.C.A., and I am in
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agreement with his reasoning and conclusion; accordingly, I also strike out the appeal.
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Appearances:
N. MOHAMMED, ESQ. For Appellant(s)
H. UMAR, ESQ. D. D. MOJ, BAUCHI STATE For Respondent(s)
