BELLO v. STATE
(2022)LCN/16017(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Friday, April 01, 2022
CA/G/88C/2021
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Ibrahim Shata Bdliya Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
MAI GARI BELLO APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
ANY ARGUMENT BY A COUNSEL SHOULD BE BASED ON THE ISSUES FORMULATED FOR DETERMINATION
Similarly, the Court will discountenance any argument by Counsel which is not based on the issues formulated for determination, as an appeal is argued based on issues formulated by the parties in their briefs which issues must be based on the grounds of appe al. See Registered Trustee of NNPC-RAS & Ors vs BPE & Ors (2021) LPELR-55807(CA); Hon. Minister of FCT & Anor vs Mononia Hotel (Nig.) Ltd & Anor (2010) LPELR-4257 (CA). The judgment of the Court must therefore be based on the issues canvassed by the parties. This is the circle that the appeal processes will pass through. It is therefore, short-circuiting the process and unhealthy for a party not to formulate issue from the ground of appeal. The Appellant’s Counsel having not formulated any issue from ground 2, the said ground is deemed abandoned and is hereby struck out. EBIOWEI TOBI, J.C.A.
THE PRINCIPLE OF LAW ON THE CONVICTION OF AN ACCUSED OF TWO DIFFERENT OFFENCES ARISING FROM THE SAME ACT
Before I specifically resolve this issue one way or the other, it will not be out of place to state that generally there is nothing wrong in charging and convicting a person for two different offences arising from the same act when the ingredients of the offences are not the same. The point must however, be made that if the latter offence is incidental to the original offence, the accused cannot be convicted for both offences. See Mbah vs State (2014) 10 NWLR (pt 1415) 306; State vs Ikechinedu Azuma & Ors (2020) LPELR-50376 (CA); Idowu vs The State (2000) 7 SC (pt II) 50. The only requirement for the conviction to stand will be that the prosecution must prove beyond reasonable doubt that the action which led to the two offences meets the ingredient of both offences which are separate offences with different consequences. EBIOWEI TOBI, J.C.A.
THE DUTY OF A COUNSEL TOWARDS HIS CLIENT AND TO THE COURT
This is a sad commentary on legal practice today as pertains to some Counsel.
Counsel that elects to defend a party convicted of a criminal offence must exercise the utmost care in the appeal process filed on behalf of his client, even if he is handling the case pro bono. The competence or otherwise of the process will be a reflection of the professional standing of Counsel. When an Appellant/accused person is represented in Court by Counsel of his choice, in accordance with the provisions of the Constitution, it is expected that such Counsel will put in his best and apply his skill and knowledge to provide good representation and defend his client to the utmost and best of his ability. The Supreme Court had cause to draw attention to and excoriate the attitude of some Counsel in the way and manner they approach their duty to their clients and to the Court in appeals such as this, in the case of Agbareh V Mimra (2008) LPELR-43211(SC) 19-19, F-C, per Ogbuagu, JSC. He stated thus:
“Let me therefore, once again, passionately appeal to some or few learned Counsel who prepare and file processes in all our Superior Courts of Record and more especially in the Appellate Courts and in this Court in particular, to be more painstaking, and exercise patience in preparing their documents and vetting them before they are filed in the Courts. Even if their services are free of charge, but as professionals, once a case or a brief is accepted, then, there is a duty on the part of such Counsel to do a thorough job in respect of processes to be filed in the Court. Learned Counsel must bear in mind and in fact or indeed assume that those documents will be read by the Judge or Justices hearing and determining the case or matter.” JUMMAI HANNATU SANKEY, J.C.A.
A LAWYER OWES ENTIRE DEVOTION TO THE INTEREST OF HIS CLIENT
Adding his voice to the weight of opinion in regard to the lawyer’s eloquence, dexterity – skills in argumentation, and power of oratory and persuasion, Lord Simon in the case of Waugh V British Rails Board (1979) 2 All E.R. 169, 176, also recognized and said inter alia:
“As it rarely happens that a man is fit to plead his own cause, lawyers are a class of the community, who by study and experience, have acquired the art and power of arranging evidence, and applying to the points at issue what the law has settled. A lawyer is to his client all that his client might fairly do for himself, if he could.” Suffice it to say that Counsel owes the duty of total devotion to the best interest of his client and to exert his learning and skill in presenting his client’s case. This duty includes being thorough and doing what is humanly possible to avoid mistakes and lapses that would be detrimental to his client’s case. See Rule 14 (c) of the Rules of Professional Conduct in the Legal Profession which, for ease of reference, states:
“The lawyer owes entire devotion to the interest of his client, warm zeal in the maintenance and defence of his client’s rights and exertion of his utmost learning and ability to the end that nothing be taken or be withheld from him, save by the Rules of Law legally applied… in the judicial form, the client is entitled to expect his lawyer to assert every remedy or defence…”
See Ikpa V State (2017) LPELR-42590(SC) 30, C-F, per Augie, JSC; Ede V Chita (2016) LPELR-41031(CA) 25, A-C; Skye Bank Plc V David (2016) LPELR-41548(CA) 32-34, E-B; Adegboye V Salawu (2013) LPELR-22140(CA); Dariye V FRN (2015) LPELR-24398(SC) 37, B-D, per Ngwuta, JSC; Salihu V State (2013) LPELR-20482(CA) 8, C-D. JUMMAI HANNATU SANKEY, J.C.A.
EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): The Appellant was charged before the Borno State High Court on a two count charge for the offences of armed robbery and brigandage with culpable homicide punishable with death under Sections 298 (b) and 302 of the Penal Code Law, Cap 102 Laws of Borno State of Nigeria, 1994. The prosecution, now Respondent in this appeal in proof of its case called four witnesses and tendered six exhibits which are Exhibits A-F. The Appellant testified in his defence but called no witness. The lower Court after listening to the witnesses before it and evaluating the evidence including the exhibits convicted the Appellant and sentenced him to life imprisonme Bnt for the offence of armed robbery under Section 298 (b) of the Penal Code. For the offence of Brigandage with culpable homicide punishable with death under Section 302, the Appellant was sentenced to death having been found guilty. The lower Court at page 15 of the record of appeal containing the judgment delivered on 13/4/16 by Hon. Justice F. Umaru found as follows:
“On the whole, I hold that the prosecution has established the case of armed robbery and brigandage with culpable homicide punishable with death against the accused persons and I therefore find you Mai Gari Bello guilty and accordingly convict you under Section 298 (b) and 302 of the Penal Code Law Cap 102 Laws of Borno State of Nigeria 1994.”
After the plea of allocutus made by the Appellant, the lower Court sentenced the Appellant as found at pages 15-16 of the record thus:
“…Consequently, the Court made the following orders:
1. For the first count of armed robbery under Section 298 (b) of the Penal Code Law the convict is sentenced to imprisonment for life.
2. For the second count of brigandage with culpable homicide punishable with death under Section 302 of the Penal Code Law the convict is sentenced to death. Consequently, the convict, Mai Gari Bello, is ordered to be hanged by the neck until he is dead and may the Lord Almighty have mercy on his soul.”
The Appellant unhappy with the judgment which conviction carried the two highest punishments for criminal offence in the world, that is life imprisonment and death sentence, filed an appeal against the judgment after obtaining leave to appeal via the Notice of appeal found at pages 17-20 of the record of appeal. I reproduce the two grounds of appeal thus:
1. The trial Court erred in law by convicting the Appellant for the offence of robbery and at the same time to still convict him for brigandage thereby occasion miscarriage of justice.
2. The trial Court erred in law for not properly evaluated (sic) the evidence placed before it by both the prosecution and the defence before arriving at its conclusion thereby occasion miscarriage of justice against the Appellant.
The Learned Appellant’s Counsel A. S. Badagubi Esq who settled the Appellant’s brief filed on 26/8/21 formulated a single issue for determination viz:
Whether or not the Appellant can be convicted for the offence of robbery and brigandage at the same time in respect of the same single act?
This sole issue is distilled from Ground 1. This is the issue which the Appellant’s Counsel addressed in his 4 pages Appellant’s brief. Surprisingly, the Appellant’s Counsel did not formulate any issue on ground 2. Whether this is a strategy or an omission it does not help the Appellant in my view. I am surprised that the Appellant’s Counsel adopted this strategy which in my opinion is a very big gamble. I say this with all sense of responsibility in view of the position of the law that a ground of appeal upon which no issue is formulated is deemed abandoned. See FRN vs Mamu (2020) 15 NWLR (pt.1747) 303; State vs Omoleye (2017) 1 NWLR (pt 1547) 341; Tukur vs Government of Taraba State (1997) 6 NWLR (pt 510) 549. The simple flow of appeal process is that the Notice of Appeal must have grounds of appeal which are indications of the aspect of the judgment the Appellant is complaining against. The grounds of appeal must challenge the decision of the Court in specific relation to the ratio of the Court. The grounds of appeal that does not challenge the judgment is incompetent in law. SeeK.R.K. Holdings (Nig) Ltd vs FBN & Anor (2016) 12 SC (pt II) 85; Kamara Yusuf & Anor vs The State (2019) LPELR-46945(SC). After ensuring that the grounds arise from the judgment of the lower Court, the next stage is that the issues formulated must arise from the grounds of appeal. If the issues formulated does not arise from the ground, it is not worthy of consideration as they will be struck out on ground of incompetence. See Tukur vs Govt of Taraba State (supra). On the other side of the coin, a situation may arise there when no issues are formulated from a valid ground of appeal. The law in such a situation is that, the ground is deemed abandoned and as such the ground will be struck out. See L.M.P. Ind. Ltd vs U.H.S.L. Ltd (2011) 7 NWLR (pt 1247) 519; Ajao vs Obele (2005) 5 NWLR (pt 918) 400; Osafile vs Odi (1994) 2 NWLR (pt 325) 125; Itok vs Udoyo (2020) LPELR-52524 (SC); Ngilari vs Mothercat Limited (1999) LPELR-1989. The consequence is that the Court will discountenance the ground of appeal. Similarly, the Court will discountenance any argument by Counsel which is not based on the issues formulated for determination, as an appeal is argued based on issues formulated by the parties in their briefs which issues must be based on the grounds of appeal. See Registered Trustee of NNPC-RAS & Ors vs BPE & Ors (2021) LPELR-55807(CA); Hon. Minister of FCT & Anor vs Mononia Hotel (Nig) Ltd & Anor (2010) LPELR-4257 (CA). The judgment of the Court must therefore be based on the issues canvassed by the parties. This is the circle that the appeal processes will pass through. It is therefore, short-circuiting the process and unhealthy for a party not to formulate issue from the ground of appeal. The Appellant’s Counsel having not formulated any issue from ground 2, the said ground is deemed abandoned and is hereby struck out.
The implication of this is that the issue of whether there was proper evaluation of the evidence before the lower Court is not up for resolution as the Appellant by its own volition decided to abandon that ground. This beats my imagination as I would have thought that in view of the death sentence on the Appellant, his Counsel will place before the Court all possible issues to get his client out of the hand of the hangman. Well, Counsel knows better and so the only issue for determination in this appeal is whether the lower Court was right to have convicted and sentenced the Appellant for armed robbery and brigandage arising from the same action. If I answer this question in the affirmative, that ends the appeal since that is the only issue for determination. If I answer in the negative, I do not think that the law will support the submission of Counsel that the Appellant will be totally discharged and acquitted. What will happen is that to avoid double punishment for the same act, this Court will limit the punishment to one of the offences provided there is evidence to establish that offence. This is where in my opinion, the strategy the Appellant took becomes counterproductive. I will not be able to determine whether the lower Court properly evaluated the evidence before it. This is more so that, there is no omnibus ground of appeal that the judgment is against the weight of evidence. Even if that is the omnibus ground, there is no argument on that ground since no issue is formulated on it. With respect to the Appellant’s Counsel, he could have done much better.
Herein is my worry, I would have thought for a person who is sentenced to imprisonment for life and to death by hanging, his Counsel will put everything into it to see whether the judgment can be set aside. Though cases are not won by the number of the grounds of appeal and the issues formulated therein or by the length of the brief, but in my opinion, the brief of the Appellant is too casual and too brief for what is at stake in this appeal. The Appellant’s Counsel in my opinion should have done much more than what was done in his brief. There would have been no harm in putting everything into it but A. S. Badagubi Esq chose amidst all the options open to him to file a 4 pages Appellant’s brief and decided to abandon ground 2. The Learned Counsel for the Appellant did not even file a reply brief after being served with the Respondent’s brief.
The Appellant will sink or swim with the situation the way it is without any help from this Court as my duty as a Court is to do justice according to law and not sentiment. See State vs John (2013) LPELR-20590 (SC); PML (Nig) Ltd vs FRN (2018) 7 NWLR (pt 1619) 448.
Similarly, as a Court of law and justice, I am an unbiased umpire with no right or privilege to assist the case of any of the parties. See Kaydee Ventures Ltd vs The Hon. Minister FCT & Ors (2010) 7 NWLR (pt 1192) 171; Maersk Line & Anor vs Addide Investment Ltd & Anor (2002) 4 SC (pt II) 157.
I will now look at the submission of Appellant’s Counsel, A. S. Badagubi Esq on the sole issue formulated for determination. It is the submission of Counsel in answering the inquiry in the negative that the offences of armed robbery and brigandage are the same except for the number of people involved. To avoid double jeopardy or double punishment which the law does not allow, the Court should not have convicted the Appellant for both offences arising from the same act. Learned Counsel referred to Sections 296(1), 297, 298 (a) or (b), 302 and 303 (1) of the Penal Code Law of Borno State.
I am shocked that in a very serious appeal such as this, no single case was cited in the Appellant’s brief. Well for whatever it is worth, that is as brief as the Appellant’s brief was in this all important appeal, I cannot go beyond that as there is nothing more in the Appellant’s brief apart from to state that Learned Counsel urged this Court to allow the appeal and to set aside the judgment of the lower Court, replacing the verdict of guilty with a verdict of not guilty and by way of consequential order to discharge and acquit the Appellant.
The Respondent’s brief filed on 2/3/22 deemed on 3/3/22 was settled by K. S. Lawan Esq, the Hon. Attorney General (HAG) of Borno State wherein he adopted the sole issue for determination formulated by the Appellant. In answering the sole issue in the affirmative it is the submission of the Learned HAG that the lower Court was right in convicting the Appellant for the two counts as Armed Robbery and Brigandage are two different offences. Counsel referred to Section 214 (1) Criminal Procedure Code, Cap 42, Laws of Borno State 1994. It is the further submission of Counsel relying on Anakwe vs The State (2014) 10 NCC 189 at 225; Olatunbosun vs State (2014) 10 NCC 459; Uket vs FRN (2008) ALL FWLR (pt 411) 923; Solomon Adekunle vs The State (2006) 14 NWLR (pt 1000) 717 that the objection should have been raised before plea was taking and failure to do that means that the objection is coming as an afterthought.
Learned HAG decided to go the extra mile in submitting after itemizing the ingredients of the offences of Armed Robbery and Brigandage that the Respondent had proved all the ingredients of the offences beyond reasonable doubt relying on the evidence of PW1-4 and Exhibits A, B, E and F. He cited Ajayi vs The State (2014) 10 ACLR 425; Nasiru vs State (1999) 6 NWLR (pt 589) 98; Jua vs State (2010) 2 MJSC 152; Abubakar Adamu vs FRN (2021) 12 NWLR (pt 1790); Awusa vs Nigerian Army (2018) 12 NWLR (pt 1634) 421 in support of that position of the law. It is Counsel’s final submission that the appeal should be dismissed and the conviction and sentence of the Appellant by the lower Court should be affirmed by this Court.
The Appellant’s Counsel was served with the Respondent’s brief. This was an opportunity for the Appellant’s Counsel to make up for the shortcoming of his brief by filing a reply brief to address the ground 2 which was abandoned since the Respondent’s brief had made reference to it. Yet again, the Appellant’s Counsel did not take advantage of that opening. He never filed a reply brief. I even noticed that the Notice of Appeal did not include any relief. This is too much error, mistakes or omission in one case for a serious appeal such as what is confronting the Appellant. Is it really an error or incompetence? The life of the Appellant is on the line, his Counsel should have done much more than that. This is not to say that the appeal is lost and won but it would have made a lot of difference if Counsel had taken a little more time to do what he should have done.
The only issue for determination in this appeal is whether, the lower Court was right in convicting and sentencing the Appellant for the offences of armed robbery and brigandage arising from the same act. I will look at the position of the law on this point but I must make the point that even if the Appellant Counsel is right I do not think a discharge and acquittal will be the result as I had mentioned above. The worse situation will be to uphold the conviction and sentence the Appellant for one of the offences. A discharge and acquittal will have been in the front burner for consideration if ground 2 was addressed and not abandoned by Counsel.
I will now address the sole issue formulated for determination in this appeal. I will reproduce same for ease of reference:
Whether or not the Appellant can be convicted for the offence of robbery and brigandage at the same time in respect of the same single act?
Before I specifically resolve this issue one way or the other, it will not be out of place to state that generally there is nothing wrong in charging and convicting a person for two different offences arising from the same act when the ingredients of the offences are not the same. The point must however, be made that if the latter offence is incidental to the original offence, the accused cannot be convicted for both offences. See Mbah vs State (2014) 10 NWLR (pt 1415) 306; State vs Ikechinedu Azuma & Ors (2020) LPELR-50376 (CA); Idowu vs The State (2000) 7 SC (pt II) 50. The only requirement for the conviction to stand will be that the prosecution must prove beyond reasonable doubt that the action which led to the two offences meets the ingredient of both offences which are separate offences with different consequences.
Having stated the above general position, let me, in sounding more specific and relevant address the fact of the case on appeal. The Appellant joined a group of young men to go to the house of PW1 to rob him. They got into the house and while the Appellant was keeping watch outside, one of them in the gang entered the room of one Musa, the deceased who was the son of PW1. There was struggle after Musa ran into another room he was followed there and was shot and killed. This briefly is the fact surrounding the case. The position of the Appellant’s Counsel is that the offences were committed in the same transaction therefore, the Appellant should be discharged and acquitted for both offences because the lower Court convicted the Appellant for both offences. This in my opinion is a very ambitious submission. What is true is that the Appellant along with others went to rob PW1 and in the process, Musa, the son of PW1 was killed. Once the act can satisfy the ingredient of each offence, the Appellant can be charged and convicted for each of the offence. If the act satisfies one offence and does not satisfy another, he will be convicted for the offence proved and discharged for the offence which ingredient is not proved. This is my general understanding however where the offence falls within the same category of offences, the person cannot be charged and convicted for both offences. An example will be a person cannot be convicted for both murder and manslaughter. This is a legal impossibility although, if there are two people involved, one can be charged and convicted of murder, and the other person may be charged and convicted for manslaughter depending on the evidence before the Court.
The point I am laboring to make here which the Learned HAG brought out in the Respondent’s brief is that, once the offences for which a person is charged are different and distinct, a single act can lead to the conviction of the Appellant for both offences. The Learned HAG has referred this Court to Section 214 (1) of the Criminal Procedure Code. This is the appropriate place in my opinion to reproduce the Section. The Section provides thus:
“ If a series of acts so connected together as to form the same transaction is alleged, the accused may be charged tried at one trial for every offence which he would have committed if all of such acts or some of them without the rest is proved.”
In the illustration to Section 214 in the Criminal Procedure Code it was stated as follows:
“if A commits robbery on B and in doing so voluntarily causes hurt to him, A may separately be charged with and tried at one trial for offences under Section 246, 298 and 300 of the Penal Code Law as to what place and the continuity of the action. See Olushegun Haruna & Ors vs The State (1972) 1 S.C. 173. A Charge of robbery may be joined to one of culpable homicide punishable with death. This is the general position.”
In taking this general position closer home, the question is whether the same person can be charged, tried, convicted and sentence for the offences of armed robbery under Section 298 (b) of the Penal Code Law and Brigandage under Section 302 of the same code. The Appellant’s Counsel position is that this is not possible while the Respondent’s Counsel sees nothing wrong with it. Before I look at this position more closely I must make the point I have made above for emphasis sake at the risk of sounding verbose or a broken record, which is that, even if I agree with the Appellant’s Counsel, that cannot necessitate a discharge and acquittal, the best the Appellant can get is only conviction and sentence for one of the offences and not both. See Uche & Anor vs The Queen (1964) 1 ALL NLR 195.
The Appellant was charged for the offences of Armed Robbery under Section 298 (b) of the Penal Code Law and the offence of Brigandage punishable under Section 302 of Penal Code. The offence of armed robbery is defined in Section 298 of the Penal Code Law while, Brigandage is defined in Section 297 of the Penal Code Law. While armed robbery is a robbery committed with any dangerous or offensive arm, Brigandage is robbery committed by five or more persons. The common denomination between Armed Robbery and Brigandage is that they all involve robbery while the difference is in the number of persons involved. When the robbery is done by less than five, it is robbery and it graduates to be armed robbery when dangerous or offensive weapon is used. Robbery becomes brigandage when more than 5 people are involved in the robbery. Brigandage however graduates to a more serious offence under Section 302 when death results from the brigandage. I do not agree with the submission of the Appellant’s Counsel that the offences in Section 297 and 298 (b) of the Penal Code Law on one hand are alternatives to the offence in Section 302 of the Penal Code Law. It is my firm view that they are separate offences carrying different sentences and consequences. If it was ordinary brigandage, the Appellant’s counsel submission would have made some sense but the offence under Section 302 which the Appellant is charged for has taken the offence of brigandage to another level. To appreciate the point I am making, I reproduce the provisions of Sections 297, 298 and 302 of the Penal Code.
297. “When five or more persons conjointly commit or attempt to commit a robbery or where the whole number of persons conjointly committing or attempting to commit a robbery and persons present and aiding such commission or attempt amount to five or more, every person so committing, attempting or adding is said to commit brigandage”.
298. “Whoever commits robbery shall be punished –
(a). With imprisonment for a term which may extend to ten years and shall also be liable to fine; and
(b) If robbery is committed –
(i). between sunset and sunrise on the highway; or
(ii). between sunset and sunrise from a person sleeping or having lain down to sleep in the open air.
(c). If robbery is committed by any person armed with any dangerous or offensive weapon or instrument to imprisonment for life or any less term and shall also be liable to fine.
302. If any one of five or more persons, who are conjointly committing brigandage, commits culpable homicide punishable with death in so committing brigandage, every one of these persons shall be punished with death”.
Learned Appellant’s Counsel tried to justify his argument that a Court cannot convict and sentence the Appellant for both armed robbery and brigandage by referring to Section 303 (1) of the Penal Code Law. I reproduce Section 303 for ease of reference:
“If, at the time of committing or attempting to commit robbery or brigandage, the offender uses any deadly weapon or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.”
With respect to Counsel, that is not the purport of the section. The ‘or’ used in that provision does not see the offences of robbery and brigandage as alternate in the sense counsel is viewing it from. Even if I am wrong in that position, I have held what is clear is that the Appellant is not just charged for robbery and brigandage but for an act of armed robbery done at the same time, which led to the death of Musa. This takes the offence of brigandage to another level of culpable homicide punishable with death. I make bold to say that the offences the Appellant was charged and convicted for are not one and the same. They are different offences with distinct consequences. The death that resulted from the armed robbery is not incidental to the robbery. If it was then the lower Court would be wrong to have convicted the Appellant for both offences. An instance where a singular act of rape resulted in death, the accused in that instance cannot be charged and convicted for both rape and murder because it is the same act that resulted into two different offences. That instance is different from the case before this Court. In the case leading to this appeal, the Appellant with other unknown persons went to rob the PW1 and in the process the son of PW1 by name, Musa was killed. The death is not incidental to the robbery but rather a separate action though from the same transaction. There is a difference between the same actions leading to two different offences and different actions from the same transaction leading to two different offences. While in the former, the accused cannot be convicted for both offences but in the latter, as in the case leading to this appeal, the Appellant is properly charged, tried, convicted and sentenced for both the offences of armed robbery and brigandage. Within the context of the facts before the lower Court and the fact that the two offences are distinct, the lower Court was right in convicting the Appellant for both offences. I resolve the sole issue in favour of the Respondent. On this ground alone, the appeal fails and it is dismissed.
There is a very strong temptation to consider the ground 2 that was abandoned by the Appellant while formulating the issues for determination. The Respondent’s Counsel adopted the issue of the Appellant and while addressing that issue went on to justify the judgment of the lower Court by trying to show that the Respondent proved its case beyond reasonable doubt and therefore the Court was right in convicting the Appellant. As earlier mentioned, this was an opportunity for the Appellant’s Counsel to have filed a reply brief to address that issue and that would have given me the latitude to address ground 2. For reasons best known to the Appellant’s counsel, he filed no reply brief. There is nothing on the other side of the scale of argument to make me delve into the question whether the lower Court properly evaluated the evidence before arriving at the decision. In as much as a part of me wants to delve into that issue, I cannot since the law does not allow me to do so. As an appellate Court, I have my limits and I must not go beyond my limits. My duty is simply to determine whether the lower Court was right in its decision within the portion of the judgment that the Appellant is challenging on appeal. I cannot in trying to do justice, decide to bring before the Court issue that was abandoned by the Appellant. In the name of justice can I resurrect a ground of appeal abandoned? I certainly cannot. The appeal belongs to the Appellant, he is the one aggrieved by the judgment, and he is the one who knows the part of the judgment that is offensive to him. I cannot go beyond the space the Appellant has donated for this Court to adjudicate on.
In the wisdom of the Appellant, all he is concerned about in the judgment is the fact that the lower Court tried, convicted and sentenced the Appellant for the alternate offences of Armed Robbery and Brigandage. Having resolved that issue against the Appellant, my hands are tight and I cannot go further to consider any other issue which was not presented as an issue before the Court. The law is clear, as a Court of law more so an appellate Court I can only consider the issues presented before me.
I want to stay within my limit and in doing so, the obvious position of this Court on this appeal is that the appeal fails as it is lacking in merit. It is therefore dismissed. The judgment of the lower Court is affirmed, and similarly is the sentence of the Appellant to life imprisonment for the first offence of armed robbery and death sentence for the second offence of brigandage with culpable homicide punishable with death.
JUMMAI HANNATU SANKEY, J.C.A.: I was privileged to read in draft, the lead judgment of my learned brother, Ebiowei Tobi, J.C.A. I agree with his reasoning and conclusion. I will add a few words.
The grouse of the Appellant in this appeal is that he was convicted for the offences of brigandage and armed robbery which he contends, arise from the same incident. The law is clear and certain that where two offences are committed in the course of an incident or in the course of the same transaction, a person may be convicted for each offence where the ingredients of the offences are not the same. See State V Azuma (2020) LPELR-50376(CA). See Section 214(1) of the Criminal Procedure Code.
In the instant case, the offences for which the Appellant were charged and convicted were committed during the course of the same incident when the Appellant, in the company of others, went on a robbery spree and in so doing, the son of PW1 was killed. He was therefore charged for brigandage punishable under Section 298 of the Penal Code and armed robbery punishable under Section 302 of the Penal Code. These are separate offences which must be proved by the establishment of different sets of ingredients and the penalties are different. In respect of the offence of brigandage, it is defined under Section 297 of the Penal Code as robbery carried out by five or more persons; while robbery, as defined under Section 298 of the Code, can be committed by less or more than five persons and it graduates to armed robbery when a dangerous or offensive weapon is used. Thus, the Appellant was charged and convicted for different offences with distinct consequences. The submissions of Counsel for the Appellant in respect of issue one, therefore, holds no water.
However, what immediately rankles in this appeal is the apparent nonchalance of the Appellant’s Counsel in prosecuting the appeal. As has been stated in the lead judgment, the Appellant’s Brief of argument was all of four (4) pages which consisted of arguments in respect of only the first issue for determination, while the second issue culled from the grounds of appeal, which questioned whether the offences were proved beyond reasonable doubt, was simply abandoned. To make matters worse, in an appeal against the conviction and sentence of the Appellant for a capital offence, armed robbery, for which he was actually sentenced to death, Counsel did not cite any decided authority to persuade the Court of his arguments in the presentation of the Appellant’s appeal. Counsel clearly did not apply any diligence in prosecuting the appeal when the Appellant’s very life hangs in the balance having been sentenced to both life imprisonment and death for each of the offences of brigandage and armed robbery. This is a sad commentary on legal practice today as pertains to some Counsel.
Counsel that elects to defend a party convicted of a criminal offence must exercise the utmost care in the appeal process filed on behalf of his client, even if he is handling the case pro bono. The competence or otherwise of the process will be a reflection of the professional standing of Counsel. When an Appellant/accused person is represented in Court by Counsel of his choice, in accordance with the provisions of the Constitution, it is expected that such Counsel will put in his best and apply his skill and knowledge to provide good representation and defend his client to the utmost and best of his ability. The Supreme Court had cause to draw attention to and excoriate the attitude of some Counsel in the way and manner they approach their duty to their clients and to the Court in appeals such as this, in the case of Agbareh V Mimra (2008) LPELR-43211(SC) 19-19, F-C, per Ogbuagu, JSC. He stated thus:
“Let me therefore, once again, passionately appeal to some or few learned Counsel who prepare and file processes in all our Superior Courts of Record and more especially in the Appellate Courts and in this Court in particular, to be more painstaking, and exercise patience in preparing their documents and vetting them before they are filed in the Courts. Even if their services are free of charge, but as professionals, once a case or a brief is accepted, then, there is a duty on the part of such Counsel to do a thorough job in respect of processes to be filed in the Court. Learned Counsel must bear in mind and in fact or indeed assume that those documents will be read by the Judge or Justices hearing and determining the case or matter.”
Also, Lord Denning, Master of the Rolls (MR) in Pett V Grey Hound Racing Association (No. 1) (1968) 2 All E.R. 545, 549, on the importance of legal representation in Court, held:
“It is not every man who has the ability to defend himself on his own. He cannot bring out the points in his own favour or the weakness in the other side. He may be tongue-tied, nervous, confused or (even) wanting in intelligence. He cannot examine or cross-examine witnesses. We see it every day! A magistrate says to a man: You can ask any question you like, whereupon the man immediately starts to make a speech. If justice is to be done, he ought to have the help of someone to speak for him and who better than a lawyer who has been trained for the task?”
Adding his voice to the weight of opinion in regard to the lawyer’s eloquence, dexterity – skills in argumentation, and power of oratory and persuasion, Lord Simon in the case of Waugh V British Rails Board (1979) 2 All E.R. 169, 176, also recognized and said inter alia:
“As it rarely happens that a man is fit to plead his own cause, lawyers are a class of the community, who by study and experience, have acquired the art and power of arranging evidence, and applying to the points at issue what the law has settled. A lawyer is to his client all that his client might fairly do for himself, if he could.” Suffice it to say that Counsel owes the duty of total devotion to the best interest of his client and to exert his learning and skill in presenting his client’s case. This duty includes being thorough and doing what is humanly possible to avoid mistakes and lapses that would be detrimental to his client’s case. See Rule 14 (c) of the Rules of Professional Conduct in the Legal Profession which, for ease of reference, states:
“The lawyer owes entire devotion to the interest of his client, warm zeal in the maintenance and defence of his client’s rights and exertion of his utmost learning and ability to the end that nothing be taken or be withheld from him, save by the Rules of Law legally applied… in the judicial form, the client is entitled to expect his lawyer to assert every remedy or defence…”
See Ikpa V State (2017) LPELR-42590(SC) 30, C-F, per Augie, JSC; Ede V Chita (2016) LPELR-41031(CA) 25, A-C; Skye Bank Plc V David (2016) LPELR-41548(CA) 32-34, E-B; Adegboye V Salawu (2013) LPELR-22140(CA);Dariye V FRN (2015) LPELR-24398(SC) 37, B-D, per Ngwuta, JSC; Salihu V State (2013) LPELR-20482(CA) 8, C-D.
On the whole, the result is that the Appellant has failed in his bid to impugn the judgment of the lower Court. I also find the appeal lacking in merit. It fails and is dismissed. I abide by the consequential order in the lead judgment.
IBRAHIM SHATA BDLIYA, J.C.A.: My noble Lord EBIOWEI TOBI, JCA, has generously availed me the benefit of reading the draft copy of the judgment just delivered. His Lordship has considered and resolved the issues admirably. I agree with the reasoning and conclusions therein that the appeal is devoid of any merit and abide by the order dismissing the appeal. I too dismiss the appeal for want of any merit.
Appearances:
A. Babawuro Esq holding with him, A. Ahmed Esq. For Appellant(s)
K.S. Lawan (Honourable Attorney General Borno State) with him A. F. Mishelia Senior State Counsel, I. Mohammed Esq State Counsel, and Y. A. Bakarema SC. For Respondent(s)