ADEBAYO ANIMASHAUN v. THE STATE
(2010)LCN/3713(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 20th day of April, 2010
CA/L/214/05
RATIO
APPEAL: CONTENTS OF A BRIEF OF ARGUMENT
By order 6 rules 3 and 4 of the Court of Appeal Rules 1981 as amended which prescribed contents of appellant’s and respondent’s brief, a brief of argument shall contain all the arguments a party wishes to raise in support of its case before the appeal court. PER CLARA BATA OGUNBIYI, J.C.A.
APPEAL: EFFECT OF ABSENCE OF BRIEF OF ARGUMENT IN AN APPEAL
An appeal is therefore properly argued on a brief of argument, the absence which renders the appeal liable for dismissal for want of prosecution.
In other words, a competent appeal ought to be supported by a brief of argument. The brief having been struck out for incompetence, there is therefore nothing left on which to hear or consider and determine the appeal, which same should hereby be dismissed for want of prosecution. See the decision of this court in the case of M.O. Sekoni v U.T.C. Nigeria Plc. (2006) 8 NWLR (Pt.982) 283 at 300 per Salami JCA as he then was. PER CLARA BATA OGUNBIYI, J.C.A.
APPEAL: IMPORTANCE OF A BRIEF IN RELATION TO THE COMPETENCE OF AN APPEAL
it is trite law that for an appeal to be competent it must be supported by a brief. Briefs are meant to assist in the administration of justice by making the work of both counsel and court simpler once the matter has got to the oral hearing stage. It is to promote justice. PER ADZIRA GANA MSHELIA, J.C.A.
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
ADEBAYO ANIMASHAUN Appellant(s)
AND
THE STATE Respondent(s)
CLARA BATA OGUNBIYI, J.C.A.(Delivering the Leading Judgment) The appellant at hand was the 1st of the five accused persons who were arraigned before the High Court of Lagos State Ikeja Judicial Division on the 10th April, 2002. They were all represented by counsel and each of them pleaded not guilty to the two counts charge of the offences alleged against them. The alleged offences are as follows:-
1st Count:
Statement of Offence
Conspiracy to commit a felony to wit: murder contrary to section 516 of the Criminal Code Cap.32 Laws, of Lagos State 1994.
Particulars of Offence
1. Adebayo Animashaun (M), 2 Gbeminiyi Adeyiga (m), 3. Mohammed Ajawesola (m), 4. Adekola Mustapha (m), 5. Ramoni Ayinla (m) on or about 26th October, 1999 in Ikorodu in Ikeja Judicial Division conspired together to commit a felony to wit murder.
2nd Count:
Statement of Offence
Particulars of Offence
1. Adebayo Animashaun (m), 2. Gbeminiyi Adeyiga (m), 3. Mohammed Ajawesola (m), 4. Adekola Mustapha (m), 5. Ramoni Ayinla (m) on or about 26th October 1999 at Agbala Shrine, Ikorodu in the Ikeja Judicial Division murdered one Juliet Ibadan.
They were therefore charged for conspiracy and substantive office of murder.
At the trial of the accused persons at the lower court, 4 witnesses in total testified on behalf of the prosecution while 6 witnesses inclusive of all the 5 accused persons testified for the defence.
In summary and per that stated on the record and as found by the learned trial judge of the case of the prosecution, on the night of the 26th October, 1999, the deceased and her husband, PW1, were apprehended on an allegation of spending alleged counterfeit 50 Naira note. The 1st accused person was in charge of the payment of salaries to members of the vigilante group inaugurated by the Oba of Ikorodu while 2nd accused was one of the co-ordinators or supervisors of the said vigilante group, 3rd accused was a night guard and herbalist with his shrine in Agbala Area of Ikorodu while 4th and 5th accused persons were leader and member respectively of the said vigilante group. That each of them got to the scene at various times and on the pre of taking the deceased and PW1 to the police station; that the accused persons and others now at large took them to a shrine owned by the 3rd accused with the aim of killing the two of them but PW1 managed to escape with gunshot wounds leaving behind the deceased who had been shot in his presence.
That in the morning of 27th October, 1999 PW1 reported to the police and assisted by PW3 an investigating police officer located the said shrine and in its surroundings found the severed head of the deceased in a freshly dug place where it was buried; a later search led to the discovery of the headless trunk in a disused well also in the vicinity of the said shrine. That out of the 22 people arrested, PW1 successfully identified the 5 accused persons and enumerated their various roles. The case was transferred to State Criminal Investigation Department, Panti where 3rd, 4th and 5th accused persons made their statements detailing what happened. Also the testimony of PW1, the deceased victim’s husband, the investigative findings of PW2, that of PW3, as well as the medical evidence of PW4, who performed the autopsy on the remains of the deceased were made available before the court.
Consequent upon the foregoing evidence by the prosecution and also that by the defence per their six witnesses inclusive of themselves, the lower court at page 156 of the record held thus and said:-
“In the entire circumstances, I hold that the prosecution has successfully proved the substantive charge of the murder of late Juliet Ibaden against all the accused persons beyond reasonable doubt, I cannot find any defence or justification for their action and I accordingly find all the accused persons guilty as charged for the murder of late Juliet Ibaden.
As to the charge of conspiracy to commit murder, ……
From the facts already accepted in evidence in proof of the substantive charge of murder, I hold that sufficient grounds exist for me to infer and conclude that the minds of the accused persons did meet to murder the deceased and I hold that the charge of conspiracy to commit murder has been proved against all the accused persons beyond reasonable doubt and I also find them guilty as charged on this count as well.”
All the accused persons inclusive of the appellant were thereupon sentenced to death by hanging on the 25th January, 2005.
Dissatisfied with the judgment of the court the 1st accused now the appellant before us filed a notice of appeal on the 19th April, 2005 and containing four grounds of appeal. By the order of this court sought for departure, same was granted on the 19th January, 2006.
By a motion dated 7th June, 2006, the appellant’s counsel Otunba Tunde Seriki filed a motion on the same date seeking an order of court extending the time within which to file the appellant’s brief of argument and also sought for a deeming order of the said brief as having been properly filed and served.
The said application was supported by an affidavit of eight paragraphs, wherein paragraph 7 specifically deposed that the appellant’s brief sought to be deemed as properly filed and served was ready and attached to the application marked Exhibit ‘A’. The said paragraph reproduced state as follows:-
’17. That the Appellant’s brief is now ready and is Attached herewith as Exhibit ‘A’.
The reliefs sought for were granted by the court on the 21st March, 2007. It is pertinent to state that on a closer look at the appellants brief of argument which is deemed filed and served and attached as exhibit ‘A’, the document only contained the name of parties, the title of the document being appellant’s brief of argument, the signature and name of the appellant’s counsel who prepared the document. Exhibit ‘A’ in other words does not contain any more information than that stated above.
I would also wish to state further that on the 16th February, 2010 when the appeal was slated for hearing, the learned appellant’s counsel Mr. Seriki adopted and relied on the appellant’s brief of argument dated 7th June, 2006 and filed on the 22nd March, 2007. Counsel therefore urged in favour of allowing the appeal, based on the said brief.
I would quickly hasten to say at this point that the brief sought to rely upon by the appellant’s counsel is not the same with that in respect of which an order was made by this court extending the time for its regularization on the 21st March, 2007. This I say because, the appellant’s brief of argument marked exhibit ‘A’ related earlier supra and which was deemed properly filed and served, contains no arguments whatsoever as it is totally empty and carries nothing relating to any issue or submission substantiating the grounds of appeal raised in the notice of appeal.
I would further wish to restate that the appellant’s brief filed on 22/3/07 has no nexus or connection with Exhibit ‘A’ which was deemed filed and served on the 21/3/07. It would also amount to a complete misnoma to rely on the said brief which if it was as submitted, filed on the 22/3/07, and in the absence of any order of court to regularize same, cannot be within time since the departure order was made on the 19/01/06, a period of over one year and two months. The brief appropriate for the hearing of this appeal is exhibit ‘A’ in respect of which an order deeming same as filed was made on the 21/3/07. In the absence of exhibit ‘A’ conveying any relevant information amounting to any brief whatsoever, it cannot serve a competent brief for the prosecution of this appeal. In other words, there is no brief in support of this appeal.
Order 17 rules 2 and 3(1) and (4) of the rules of court states as follows:-
“2. The appellant shall within forty-five days of the receipt of the record of appeal from the court below file in the court a written brief, being a succinct statement of his argument in appeal.
3(1) The brief …shall contain an address or addresses for service and shall contain what are, in the appellant’s view, the issues arising in the appeal …
(4) All briefs shall be concluded with a numbered summary of the points to be raised and the reasons upon which the argument is founded.”
(Emphasis are mine)
It is elementary to emphasize that appeals are argued on briefs which arguments are based on issues distilled from grounds of appeal. The absence of issues and submissions substantiating same renders the so called brief incompetent and which is accordingly struck out.
It follows therefore that an appeal is not argued in the absence of brief, as it would be laid bare and unsupportive. Relevant in support is the case of N.O.M. Ltd. v Daura (1996) 8 NWLR (Pt.468) p.601 where Mohammed, JCA (as he then was) considered the purpose of brief of argument and the duty on party seeking to rely on his argument in the lower court. At page 606 for instance his Lordship had this so say:-
“The respondent however, before going into the arguments on issue No.1 said he was adopting his entire arguments advanced in the court below contained at pages 55-62 of the records of the appeal in so far as the same are relevant to the grounds of appeal and issue for determination formulated therefrom.
In other words the respondent is expecting this court to go outside the brief of argument filed by him and consider his arguments at the court below and fish out the parts relevant to the issues for determination in this appeal and use the same in the resolution of the issues raised in this appeal. I am afraid, this court cannot do that because to do so will defeat the whole purpose of filing briefs under order 6 of the Rules of this court. By order 6 rules 3 and 4 of the Court of Appeal Rules 1981 as amended which prescribed contents of appellant’s and respondent’s brief, a brief of argument shall contain all the arguments a party wishes to raise in support of its case before the appeal court. If for any reason an appellant or respondent thinks that the arguments of his counsel at the lower court are relevant in resolving the issues raised in the appeal, then it is his duty to ensure that such arguments are incorporated in his brief of argument. The duty of this court in exercise of its jurisdiction is to resolve appeals based on the issues raised and argued in the briefs of argument filed by the parties in accordance with the rules of the court.”
An appeal is therefore properly argued on a brief of argument, the absence which renders the appeal liable for dismissal for want of prosecution.
In other words, a competent appeal ought to be supported by a brief of argument. The brief having been struck out for incompetence, there is therefore nothing left on which to hear or consider and determine the appeal, which same should hereby be dismissed for want of prosecution. See the decision of this court in the case of M.O. Sekoni v U.T.C. Nigeria Plc. (2006) 8 NWLR (Pt.982) 283 at 300 per Salami JCA as he then was. With the appeal having been dismissed, the decision of the learned trial judge in the circumstance is accordingly affirmed.
ADZIRA GANA MSHELIA, J.C.A. I have had the opportunity of reading in draft the judgment of my learned brother Ogunbiyi, J.C.A. just delivered. I entirely agree with the reasoning and conclusion arrived thereat. Pursuant to the order of Court made on 21/3/07 appellant’s brief of argument was deemed properly filed and served. However, that brief is empty as same contains no arguments relating to any issue distilled from the grounds of appeal filed. When the appeal came up for hearing on 16/2/10 appellant’s counsel adopted and relied on the appellant’s brief of argument filed on 22/3/2007. Unfortunately, the appellant’s brief filed on 22/3/07 was filed without any order of Court to regularise same. I agree with my learned brother that the appellant’s brief of argument marked Exhibit’ A’ is not a competent brief for the purpose of prosecuting this appeal. The said brief was not filed in compliance with order 17 rules (2) and 3 (1) and (4) of the Court of Appeal Rules 2007. it is trite law that for an appeal to be competent it must be supported by a brief. Briefs are meant to assist in the administration of justice by making the work of both counsel and court simpler once the matter has got to the oral hearing stage. It is to promote justice. In the circumstances it is also my humble view that appellant’s brief marked exhibit ‘A’ is incompetent and same is struck out. In absence of competent brief the appeal is liable to be dismissed for want of prosecution.
For this reason and the fuller reasons contained in the lead judgment, I too dismiss the appeal for want of prosecution. I affirm the decision of the learned trial judge.
ADAMU JAURO: I have been privileged before today to read in draft the judgment just delivered by my learned brother, Ogunbiyi, JCA. I am in complete agreement with the reasoning and conclusion contained therein, which I also adopt as mine.
For the reasons adumbrated in the lead judgment, I also hold that the appeal is not supported by a competent brief. Consequently, I hereby dismiss same for want of prosecution. See M.O. Sekoni v. UTC Nigeria Plc (2006) 8 NWLR (Pt. 982) 283.
The appeal is hereby dismissed and, the decision of the learned trial judge is accordingly affirmed.
Appearances
Mr. Otunba T. Seriki;
T. O. Jonathan (Miss)For Appellant
AND
Mr. A. Adebajo Asst. Chief State Counsel Ministry of Justice, Lagos StateFor Respondent
