CHRISTOPHER v. STATE
(2022)LCN/5124(SC)
In The Supreme Court
On Friday, April 08, 2022
SC.885C/2019
Before Our Lordships:
Olukayode Ariwoola Justice of the Supreme Court of Nigeria
Ejembi Eko Justice of the Supreme Court of Nigeria
Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria
Mohammed Lawal Garba Justice of the Supreme Court of Nigeria
Adamu Jauro Justice of the Supreme Court of Nigeria
Between
FRIDAY CHRISTOPHER APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
THE CONSISTENCY OF A PARTY IN THE PRESENTATION OF HIS CASE
The law is trite that a party must be consistent in the presentation of his case. See CHUKWUNYERE V. STATE (2017) LPELR-43725 (SC); AJIDE V. KELANI (1985) LPELR-302 (SC); COMPTROLLER GENERAL OF CUSTOMS & ORS V. GUSAU (2017) LPELR-42081 (SC); SUBERU V. STATE (2010) LPELR-3120 (SC); AGI V. PDP & ORS (2016) LPELR-42578 (SC).
THE GROUND OF APPEAL IS THE FOUNDATION OF EVERY APPEAL
The law is trite that the ground of appeal is the foundation of every appeal as it constitutes an Appellant’s complaint against the judgment appealed against. The ground of appeal also gives information of the precise nature of an Appellant’s complaint and ensures fairness to the other side: See SARHUNA V. LAGGA (2009) ALL FWLR (PT 455) 1617 @ 1636 (S.C.).
THE DEFENCE OF INSANITY AND THE BURDEN ON ESTABLISHING THAT DEFENCE
When the defence of insanity or diminished responsibility is raised, the burden on the defendant to establish that defence is not as heavy as that which rests on the prosecution to establish the guilt of the defendant beyond reasonable doubt. However, the defence shall lead evidence material to the conclusion that, on the balance of probability, he was of unsound mind at all times material to the commission of the offence charged: R. v. DUNBAR (1958) 1 Q. B. 1. ADAMU JAURO, J.S.C.
THE SETTLED LAW ON THE ISSUES FOR DETERMINATION IN AN APPEAL
The law is settled in the appellate Courts that issues for determination in an appeal against the decision of a lower Court must inure, arise from and be distilled from the grounds of the appeal which contain the real complaints against the decision of the lower Court. Where any issue submitted to the appellate Court for determination does not arise from and is not reasonably traceable to any of the valid grounds of the appeal, such issue would be invalid and incompetent for the appellate Court to consider and determine on the merit. See Nasiru v. State (1999) 2 NWLR (pt. 569) 87, Akpan v. FRN (2012) 1 NWLR (pt. 1281) 403, Amadi v. NNPC (2000) 6 SC (pt. 1) 66, Nwosu v. Imo State Env. Sanitation Agency (1990) 2 NWLR (pt. 135) 688, Shitta-Bey v. A. G., Federation (1989) 10 NWLR (pt. 570) 392, Garba v. State (2000) 4 SCNJ. ADAMU JAURO, J.S.C.
ADAMU JAURO, J.S.C. (Delivering the Leading Judgment): This appeal is against the judgment of the Court of Appeal, Abuja Judicial Division wherein the Court dismissed the Appellant’s appeal against the judgment of the High Court of Niger State which found the Appellant guilty of culpable homicide punishable with death under Section 221 of the Penal Code.
BRIEF STATEMENT OF FACTS
The lone count upon which the Appellant was tried and convicted at the trial Court is as follows:
“That you Friday Christopher, on or about the 7th day of September, 2013 in Korokpa village via Chanchaga within Minna Judicial Division committed the offence of Culpable Homicide punishable with death to wit: while Charity Emmanuel and Miracle Emmanuel were sleeping in the room at Korokpa village via Chanchaga LGA of Niger State, you Friday Christopher carried Miracle Emmanuel out of the bedroom to parlour and strangled her with your hand which you knew death would be the probable and not only a likely consequence of the act and you thereby committed an offence punishable under Section 221 of the Penal Code.”
In a bid to prove the charge, the Respondent called two witnesses and tendered the Appellant’s confessional statements as exhibits A and B. The Appellant on his part, called four witnesses, including himself and tendered no exhibit.
The case of the prosecution was that on 6th September, 2013, one Charity Emmanuel, the Appellant’s aunt came with an 18 months old baby Miracle Emmanuel from Kaduna to visit the Appellant’s mother, Monicah Christopher in Minna, Niger State at her home where the Appellant also resides. On the first night she spent with them, the deceased, Miracle Emmanuel was crying throughout the night and this prevented them from sleeping. The following day, in the night, the Appellant took the baby from the room where she was and strangled her to death. It was the Respondent’s case that the Appellant left the house after committing the offence and was found in a nearby bush.
The Appellant on his part denied committing the offence. His case was that he was with DW2 on 7th September, 2013 to dig a soakaway pit and that DW2 left when the person who asked them to dig the pit did not show up, but he stayed behind. The Appellant stated further that he was at the place where they were to dig the soak away pit when the police came to arrest him.
At the conclusion of trial and after the adoption of final addresses, the learned trial Judge delivered a considered judgment wherein he found the Appellant guilty and sentenced him accordingly. Aggrieved by the judgment of the trial Court, the Appellant appealed to the lower Court, albeit unsuccessfully.
Dissatisfied by the decision of the lower Court which affirmed his conviction and sentence, the Appellant now seeks, by this appeal to exhaust his fight of appeal. The Appellant identified three grounds of appeal in his Notice of Appeal by which the appellate jurisdiction of this Court was triggered.
In line with the rules and practice of this Court, parties filed and exchanged their respective briefs adopted at the hearing of this Court on 20th January, 2022.
MR. PHILLIP K. EMMANUEL, ESQ. on behalf of the Appellant distilled two issues for the determination of the appeal in the Appellant’s brief of argument dated and filed on 14th August, 2019. The said issues are hereunder reproduced as follows:
“1. Whether on all the established facts in this case, the proper verdict which ought to have been returned by the Court of Appeal against the Appellant was not one of discharge and acquittal and a further order for medical examination of his mental state of health. (Distilled from ground 1 of the Notice of Appeal).
2. Whether by the tenor of Appellant’s extra-judicial statements embodied in exhibits “A” and “B”, and the defence of insanity was raised which needed thorough consideration by the trial Court and if in the affirmative, whether the failure to so consider has prejudiced the Appellant and consequently led to a miscarriage of justice. (Distilled from grounds 2 and 3 of the Notice of Appeal).”
On behalf of the Respondent, M.G. CHIROMA ESQ., Director of Public Prosecutions, Ministry of Justice, Niger State raised a sole issue in the Respondent’s brief of argument dated 14th October, 2019 and filed on 15th October, 2019. The sole issue raised by the Respondent is as follows:
“Whether the prosecution did not prove its case beyond reasonable doubt at the trial Court which convicted the appellant and sentenced him to death to justify the affirmation of the said conviction and the sentence by the Court below?”
ARGUMENTS OF COUNSEL
Both issues distilled by the Appellant’s counsel were argued together. It was submitted that had the trial Court considered Exhibit B properly, it would find that the said exhibit revealed the defence of insanity, even without same being raised by the Appellant. Reliance was placed on AHMED V. STATE (2000) FWLR (PT. 34) 438. That a calm consideration of the exhibit and the circumstances under which it was made would reveal that the trial Court erred by not considering the defence of insanity on behalf of the Appellant. He submitted that PW2 himself admitted that no proper investigation was conducted into the matter and that there was no Superior Police Officer available to countersign Exhibit B, hence the trial Court ought to have discharged and acquitted the Appellant. The case of KADA V. STATE (1991) 8 NWLR (PT. 208) 134 was relied on.
Learned counsel further submitted that, the fact that there was no malice between the Appellant and his aunt who brought the deceased baby or between the Appellant and the deceased is an indication that the Appellant was suffering from mental infirmity to have strangled the deceased. That from the Appellant’s confessional statements and the circumstances under which they were made together with counsel’s interaction with him in prison custody, it is clear that he is suffering from mental infirmity and the Courts below ought to have availed him of the defence of insanity. He urged this Court to exercise its power under Section 22 of the Supreme Court Act to discharge and acquit the Appellant and order for a medical examination into his mental state. He relied on Section 51 of the Penal Code applicable to Niger State as well as the following cases: KADA V. STATE (1991) 8 NWLR (PT. 208) 134; NWANKWOALA V. STATE (2006) ALL FWLR (PT.339) 801; STATE V. JOHN (2013) 12 NWLR (PT. 1368) 337; OJO V. STATE (1973) NSCC 590; SOKOTO V. THE STATE (1976) NSCC 96; SAKA V. THE STATE (2008) 3 NCC 145; EJINIMA V. THE STATE (1991) 7 SC (PT. 111) 1; PETER V. STATE (1997) 12 NWLR (PT. 531) 1; SANUSI V. THE STATE (1984) 10 SC 166; EDOHO V. STATE (2010) 14 NWLR (PT. 1214) 651.
He finally urged this Court to allow the appeal, set aside the judgment of the Court below, acquit and discharge the Appellant in the overall interest of justice.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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In response to the Appellant’s submissions, counsel for the Respondent submitted that the Respondent proved all the ingredients of the offence charged beyond reasonable doubt through the Appellant’s confessional statements Exhibits A and B as well as through circumstantial evidence. That proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. Reference was made to Section 135 of the Evidence Act, 2011 as well as the cases of AJAYI V. STATE (2013) 9 NWLR (PT. 1360) 589; BASSEY V. STATE (2012) 12 NWLR (PT. 1314) 209. He submitted that the Appellant was represented by counsel all through the proceedings at the trial Court but the defence of insanity was not raised, therefore it was not the duty of the trial Court to raise the Defence suo motu. Counsel citedJOHN V. THE STATE (2012) NWLR (PT. 1299) 336 and submitted that every person is presumed to be of sound mind at every time and to be responsible for his acts of omissions. That it is the duty of the Appellant to raise a defence to the charge against him, and once he has done so, it would be the duty of the Court to consider same in its judgment.
Counsel submitted that the Appellant was in a good state of mental health when he committed the offence and that explains why he hid in the bush after committing the act, as an insane person would not have escaped into the bush. It was also submitted that the defence of insanity must be specifically raised, not impliedly. In response to the Appellant’s submission that the Appellant had no motive to kill the deceased, counsel submitted that the Appellant himself said in his confessional statement that he killed the baby because she used to cry in the night and prevent him from sleeping. It was further submitted that the Appellant cannot belatedly raise the defence of insanity in this Court, having not raised same before the lower Courts. Counsel further submitted that none of the Appellant’s witnesses said anything at trial that alluded to his alleged insanity. He noted that the Appellant stated in Exhibit B that he did not regret killing the deceased and that no one in his family behaved abnormally.
He finally urged the Court to dismiss the appeal.
RESOLUTION
Having considered the arguments canvassed by counsel on either side as well as the issues distilled for determination by them, it is evident that the fulcrum of this appeal is whether the defence of insanity ought to avail the Appellant.
It is elementary to state that the appellate jurisdiction of this Court is provided for under Section 233 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). To ignite the appellate jurisdiction of this Court, an Appellant has to file a notice of appeal containing grounds of appeal challenging the decision of the Court of Appeal.
The grounds of appeal as encapsulated in the Appellant’s notice of appeal must be targeted at the ratio decidendi of the judgment being appealed against. See K.R.K. HOLDINGS (NIG) LTD. V. FBN (2016) LPELR-41463 (SC); GTB V. INNOSON NIGERIA LTD (2017) LPELR-42368 (SC); YUSUF & ANOR V. STATE (2019) LPELR-46945 (SC).
Notwithstanding, there are couple of instances where an Appellant can be allowed to raise grounds of appeal on issues not canvassed and determined in the judgment of the lower Court. Such instances are where the Appellant raises a ground of appeal bordering on jurisdiction and/or where the Appellant seeks the leave of the appellate Court to raise and argue fresh issues on appeal. In the absence of the two instances stipulated above, any ground of appeal must find its source firmly footed in the judgment of the Court being appealed against.
In the instant appeal, the Appellant’s counsel surreptitiously raised the defence of insanity for the first time in this Court. The Appellant’s counsel made noise on the failure of the trial Court to consider the defence of insanity in favour of the Appellant. I should state for the umpteenth time that this Court does not have the jurisdiction to hear and determine appeals from the trial Court. See AG ANAMBRA V. AG FEDERATION (2007) LPELR-24343 (SC).
Right from trial, up to the Court below, the Appellant fought restlessly on the defence of alibi. Out of the 5 grounds of appeal in his notice of appeal to the Court below, there was nowhere it was stated that the trial Court ought to consider the defence of insanity in favour of the Appellant. Even though it is trite that a trial Court ought to consider any defence that will otherwise be available to the accused, in the instant case, there was no appeal to the lower Court on the defence of insanity.
The law is trite that a party must be consistent in the presentation of his case. See CHUKWUNYERE V. STATE (2017) LPELR-43725 (SC); AJIDE V. KELANI (1985) LPELR-302 (SC); COMPTROLLER GENERAL OF CUSTOMS & ORS V. GUSAU (2017) LPELR-42081 (SC); SUBERU V. STATE (2010) LPELR-3120 (SC); AGI V. PDP & ORS (2016) LPELR-42578 (SC).
An appeal is a reflective medium for challenging a judicial decision where no party, including the appellate Court is taken by surprise. It is a judicial exercise aimed at dispassionately reviewing all essential points attacked in the judgment being appealed against and not an avenue for an Appellant to bring appalling grounds of appeal to test a palpably ridiculous claim.
The ignorance of the Appellant’s counsel was unequivocally brought to fore in paragraph 4.12 of the Appellant’s brief wherein it was stated as follows:
“Unfortunately, those aspects which ought to have been pleaded before the trial Court as a fact finder were not raised before that Court. Be that as it may, we humbly submit that in order to do substantial justice in this case, this Honourable Court possesses the statutory powers under Section 22 of the Supreme Court Act to order for the medical examination of the Appellant in order to ascertain his mental state of health.”
Going by the above submission of the Appellant’s counsel, it is apparent that counsel does not understand the purport of Section 22 of the Supreme Court Act. This Court would be stepping outside its appellate borders by ordering for the medical examination of the Appellant in order to ascertain his mental state of health as urged by the Appellant’s counsel.
In my view, the Appellant is surreptitiously trying to use the institution of this Court to adduce further evidence on appeal. Without further ado, I hold that the Appellant’s issues regarding the defence of insanity which were not raised in the Court below and not borne out of the judgment of the Court are liable to be discountenanced. In the absence of leave to raise fresh issues in this Court, the Appellant is precluded from raising the defence of insanity or any submission relating thereto in his brief of argument.
I ought not to have wasted my time in summarizing the submissions and arguments of the Appellant’s counsel in the first place, however by so doing, I have been able to bring to fore the issues canvassed, with the aim of laying the proper foundation for throwing out this appeal out of the windows of this Court.
The law is trite that the ground of appeal is the foundation of every appeal as it constitutes an Appellant’s complaint against the judgment appealed against. The ground of appeal also gives information of the precise nature of an Appellant’s complaint and ensures fairness to the other side: See SARHUNA V. LAGGA (2009) ALL FWLR (PT 455) 1617 @ 1636 (S.C.).
The conclusion of all I have been saying is that the submission of the Appellant’s counsel on failure of the trial Court to consider the defence of insanity in favour of the Appellant is not well-founded in this Court. All the submissions and arguments of the Appellant in this regard are therefore discountenanced.
On the whole, I hold that this appeal is unmeritorious and same is hereby dismissed. The conviction of the Appellant for the offence of culpable homicide punishable with death and the sentence of death imposed on him by the trial Court and affirmed by the lower Court is hereby further affirmed.
OLUKAYODE ARIWOOLA, J.S.C.: I had the opportunity of reading in draft, the lead judgment of my learned brother Adamu Jauro, JSC just delivered. I agree entirely with the reasoning and conclusion of the lead judgment that the appeal lacks merit and liable to be dismissed. Accordingly, it is dismissed by me.
Appeal dismissed.
EJEMBI EKO, J.S.C.: The Appellant was arraigned before the Niger State High Court, charged with culpable homicide punishable with death under Section 221 of the Penal Code Law of Niger State, He was tried on the information. On 5th September, 2016 the trial High Court returned a verdict of guilty. Upon his conviction for the capital offence charged, the Appellant was sentenced to death.
At the trial, the prosecution produced and relied heavily on the Appellant’s confessional statements, Exhibits A & B. In Exhibit A the Appellant stated-
I went to my mother room and met Charity and the baby by name Miracle sleeping on the mat, while my mother is on the bed sleeping. I also carry the baby by name Miracle out of the room without the knowledge of Charity and my mother. I went with her inside parlour. I also used my hand and hold her neck to death.
He subsequently made Exhibit B which was substantially in pari materia with Exhibit A and stated thus-
They were sleeping in the inner room with my mother, Charity and the little girl. My mother was on the bed while they were on the floor. I used my left hand to press her on the neck while she was lying down sleeping until she died before I removed my hand on her neck. I took her from the inner room to parlour that was where I killed.
The rather callously bizarre manner the dastardly act was executed must have startled and prompted the investigator (the PW.2) to ask whether the Appellant was normal or insane? The Appellant offered the answer in Exhibit A thus-
I am sound. I do not have any mental problem.
Section 51 of the said Penal Code Law offers the statutory defence of insanity. It provides-
51. Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.
The Appellant, represented at the trial by a Counsel, never once raised the defence of insanity. This is apparently consistent with his averment in Exhibit A that he was of sound mind and that he did not have any mental problem. Sanity, from Exhibits A & B, was presumed. It was for the defence, rebutting the presumption of sanity or soundness of mind, to plead and establish insanity or the unsoundness of mind such as made him “incapable of knowing the nature of the act, or that he (did) what is either wrong or contrary to law”.
When the defence of insanity or diminished responsibility is raised, the burden on the defendant to establish that defence is not as heavy as that which rests on the prosecution to establish the guilt of the defendant beyond reasonable doubt. However, the defence shall lead evidence material to the conclusion that, on the balance of probability, he was of unsound mind at all times material to the commission of the offence charged: R. v. DUNBAR (1958) 1 Q. B. 1.
The Appellant’s Counsel submitting on what, in common law jurisdictions, is known as borderline abnormalities, asked –
what must have informed the act of the Appellant in the circumstances of the case at hand? Indeed even the Investigating Police Officer- Kabir Seidu (PW.2) was startled by the confession and had to ask the Appellant on his past history since the witness did not take the Appellant for medical check-up to ascertain his mental health, he truthfully told the Court that he did investigate the case properly.
In the instant case, the defence never at all raised the defence of insanity or borderline diminished responsibility i.e borderline abnormalities. The trial Court and the lower Court were left with no fact on which to consider borderline abnormalities that may have resulted in the alleged Appellant’s diminished responsibilities or unsoundness of mind. No witness for the defence raised any issue of insanity. Thus from the defence evidence, it cannot be said that the burden of establishing the Appellant’s insanity, if the defence was ever raised, consistent with Sections 131, 135(3), 139 and 140 of the Evidence Act 2011 was discharged. The said provisions are herein below reproduced, to wit-
131. (1) Whoever desires any Court to give judgment as to any legal or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
135. (1) …
(2) …
(3) if the prosecution proves the commission of crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted to the defendant.
139. (1) Where a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from or qualification to, the operation of the law creating the offence with which he is charged is upon such person.
(2) The burden of proof placed by this part upon a defendant charged with a criminal offence shall be deemed to be discharged if the Court is satisfied by evidence given by the prosecution, whether on cross-examination or otherwise, that such circumstances in fact exist.
(3) Nothing in Sections 135 and 140 or in Subsection (1) or (2) of this Section shall-
(a) prejudice or diminish in any respect the obligation to establish by evidence according to law any acts, omissions or intentions which are legally necessary to constitute the offence with which the person accused is charged:
(b) impose on the prosecution the burden of proving that the circumstances or facts described in Subsection (2) of this Section do not exist: or
(c) affect the burden placed on a defendant to prove a defence of intoxication or insanity.
140. When a fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Notwithstanding my foregoing postulations, there is a fundamental issue that bedevils the appeal. This issue of the defence of insanity is a fresh issue being raised in this Court for the first time as of right and without leave of Court first sought and granted. It was not raised either at the trial Court or the lower Court.
In his appeal at the lower Court, vide the Notice of Appeal at pages 148-152 of the Record, the statutory defence of insanity was not made an issue as could be seen from the 5 rounds of appeal complaining, to wit –
1. The learned trial Judge erred in law when he heavily relied upon the confessional statements and convicted the Appellant.
2. The learned trial Judge erred in law when he held that “I have also considered the alibi raised by the accused during trial which in my view was an afterthought.”
3. The learned trial Judge erred in law and came to a wrong conclusion when he held that “in the circumstances of this case, it can be inferred that the deceased died from strangulation meted on her by the accused person”.
4. The learned trial Judge erred in law when he relied on the evidence/testimony of the PW.1 (Inspector Elisha Dandare) in reaching his decision which occasioned a miscarriage of justice to the Appellant.
5. The decision of the trial Court is unwarranted, unreasonable and cannot be supported in law having regard to the evidence adduced at trial.
The appeal, at the lower Court, was determined only on the 5 issues distilled from the 5 grounds of appeal, as can be seen from page 233 of the Record.
In raising, for the first time, the fresh issue of insanity under Ground one polymerised to such an elusive elasticity the Appellant’s counsel had apparently misconceived the dictum of this Court in STATE v. JOHN (2013) 12 NWLR (pt. 1368) 337 at 355, and Section 22 of the Supreme Court Act. This Court in STATE v. JOHN (supra) did state –
The well settled position of law is that in a charge of murder after the Court considers the defence raised by the accused person, the Court should go extra mile to consider other defences available to the person on the facts established in the trial Court.
As I earlier pointed out in this judgment “the facts established in the trial Court” did not, in any way disclose that the statutory defence of insanity was available to the trial Court to consider in favour of the Appellant, as the defendant before it.
The jurisdiction and powers of the Court of Appeal (the lower Court), circumscribed by the grounds of appeal and the issues for determination of the appeal distilled therefrom, do not include it, quixotically stepping into the affray or arena of dispute between the parties and doing the fight of either party. Section 17(2)(e) and 36(1) of the Constitution 1999, enjoining the Court to maintain its “independence, impartiality and integrity” and observing the principle of “nemo judex in causa sua”, do not permit a Court of law to raise a defence for a party. The trial Court and the intermediate Court would only consider a “defence available to the person on the facts established in the trial Court”. Similarly, the appeal Court would consider defences available to the accused if such defences which though visible ex facie had, on the facts, been established at the trial Court, had not been considered by the trial Court. The dicta of this Court in STATE v. JOHN (supra); OJO v. STATE (1973) 11 SC 331 do not empower the Courts to take the cases before them beyond the contemplation of the parties.
In the same way; the powers vested in the Supreme Court by Section 22 of the Supreme Court Act, 2004, hinge on the operative clause – “The Supreme may, from time to time, make any order necessary for determining the real question in controversy in the appeal,…”. Thus the Supreme Court cannot, and it is not so empowered to, go beyond the real question in controversy in the appeal and determine issues totally extraneous and alien to the appeal.
The two issues argued in this appeal are fresh issues, having not been issues either at the trial Court or the lower Court. Appeal is by way of rehearing. It is an invitation to the higher Court to find out whether on proper consideration of the facts and the applicable law the lower Court arrived at a correct decision: OREDOYIN v. AROWOLO (1989) 4 NWLR (pt. 114) 172 (SC) at 172; IWEKA v. SCOA (2000) 3 SC 21 AT 31; ADEOSUN v. GOVERNOR OF EKITI STATE & ORS (2001) 8 NWLR (pt. 714) 200 (SC). That is why: apart from being loathe, an appellate Court is not in a position, to determine the correctness or otherwise of an issue not raised and determined in the Court(s) below: ADEOSUN v. GOVERNOR OF EKITI STATE (supra).
Raising this fresh issue without leave of Court, being an abuse of Court’s process; being an improper use of a procedure or legal process with no iota of law supporting it: SARAKI v. KOTOYE (1992) 9 NWLR (pt. 264) 156; R-BENKAY (NIG.) LTD v. CADBURY (NIG.) PLC (2012) 9 NWLR (pt. 1306) 596 at 617.
This alone entitles me to dismiss the appeal on the issue. Even on the merits; I agree with my learned brother, ADAMU JAURO, JSC, whose judgment (just delivered) I endorse and adopt, that the appeal lacking in substance be dismissed.
Appeal dismissed.
UWANI MUSA ABBA AJI, J.S.C.: The Respondent’s case is that on 6/9/2013, one Charity Emmanuel, the Appellant’s aunt, came with an 18-month old baby, Miracle Emmanuel, from Kaduna to visit the Appellant’s mother, Monicah Christopher, in Minna, Niger State, at her home, where also the Appellant resides. On the 1st night, Miracle Emmanuel, the deceased, cried throughout the night and prevented them from sleeping. In the night of the following day, the Appellant took the baby from the room where she was and strangled her to death; left the house and was found in a nearby bush. The Appellant nevertheless denied it and alleged that he was with DW2 on 7/11/2013, to dig a soak away pit. DW2 left when the person that requested their labour did not come, but he stayed behind and was later arrested by the Police. At the conclusion of the trial, he convicted and sentenced accordingly. On appeal by the Appellant, the case was dismissed, hence this appeal.
The Appellant has raised the defence of insanity for his discharge and acquittal to the crime committed. Unfortunately, this is a fresh issue coming up for the first time before this Honourable Court, which the Appellant never saw the need to pursue from the onset. An appeal is akin to pleadings and the Court and parties cannot be taken by surprise to present a fresh issue without leave of the Court.
An appellate Court will not generally allow a fresh point to be taken before it if such a point was not raised and pronounced upon by the Court below, unless of course, the question involves substantial points of law and no further evidence needs be adduced to determine the matter and such a course of action is necessary to prevent an obvious miscarriage of justice. See AKPABIO V. STATE (1994) 7 NWLR (PT. 359) 635 SC, SHAIBU V. STATE (2017) LPELR-42100(SC) (PP. 10-12 PARAS. E).
Raising the defence of insanity for the first time before this Honourable Court is an afterthought and a clear indication that the Appellant has no defence to the crime he committed.
I therefore agree with my learned brother, Adamu Jauro, JSC, that the appeal be dismissed for being unmeritorious. The appeal is hereby dismissed.
MOHAMMED LAWAL GARBA, J.S.C.: I have had the opportunity to read a draft of the leading judgment written by my learned brother, Hon. Justice Adamu Jauro, JSC, in this appeal and I agree with the views that the appeal is wanting in merit.
The three (3) grounds contained on the Appellant’s Notice of Appeal dated the and filed on the 2nd July, 2019 (which appears at pages 263-266 of the Record of Appeal) are as follows:-
“GROUND ONE:
1. The lower Court erred in law by affirming the trial Court’s verdict under Section 221 of the Penal Code instead of Culpable Homicide non-punishable with death under Section 224 of the Penal Code.
PARTICULARS OF ERROR
a. Appellant’s extra-judicial statements to the police embodied in Exhibits “A” and “B” raise a possible defence of provocation which needed thorough investigation as to the Appellant’s mental stability and psychological di sposition to noisy environment. See pages 7-8 and 64-67 of the Record of Appeal.
b. The PW2 (Kabiru Saidu) stated that he only investigated the case briefly and not thoroughly as investigated was not properly carried out. See page 72 of the Record of Appeal.
c. A proper evaluation of all the extenuating circumstances ought to have mitigated the Appellant’s punishment by having him sentenced under Section 224 of the Penal Code instead of Section 221 of the Penal Code.
GROUND TWO:
2. The lower Court erred in law when it affirmed the decision of the trial Court which held as follows:-
“Having perused exhibits A and B, and having considered the circumstances under which they were recorded and admitted in evidence, I am satisfied that the two confessional statements have satisfied the conditions recited in the above case and can in law ground a conviction. On the whole therefore, I hold as a fact that the prosecution has proved its case beyond reasonable doubt against the accused person.”
PARTICULARS OF ERROR
a. The trial Court in arriving at the above holding heavily relied on the position of this Honourable Court in CHUKWUKA OGUDO V. STATE (2011) 18 NWLR (PT. 1278) 1 AT 30 PARAS C-E where My Lords restated the basic fundamentals of a valid statement capable of grounding conviction in criminal trial.
b. In the instant case, exhibit “B” was not counter-signed by a superior police officer as required by law as per the above cited authority/decision.
c. The trial Court in the course of the judgment said:
“There is no doubt that the two prosecution witnesses in this case are both police officers involved in the investigation of the case. They were not eye witnesses to the commission of the alleged offence. In fact, the testimony of both prosecution witnesses proceeded directly from confessional statements (Exhibits A and B) made by the accused person in the course of investigation.”
d. Similarly, no independent, credible corroborative evidence proffered to scrutinize the two confessional statements in accordance with the laid down tests as settled by this Honourable Court in a plethora of authorities including but not limited to CHUKWUKA OGUDO V. STATE (SUPRA).
GROUND THREE
3. The judgment of the lower Court is unwarranted, unreasonable and cannot be supported having regard to the evidence.”
As can easily be observed, the complaint in the body of ground one, is general and imprecise, though concise. The particulars (a), (b) and (c) essentially complain about alleged poor investigation of “a possible defence of provocation.”
On its part, ground two complains about the confessional statements by the Appellant which were admitted as Exhibits A and B as to whether they are capable of grounding the conviction of the Appellant.
Ground Three, being omnibus, is general in terms.
The two (2) issues formulated in the Appellant’s brief, have been set out in the leading judgment and are as follows:-
“1. Whether on all the established facts in the case, the proper verdict which ought to have been returned by the Court of Appeal against the Appellant was not one of discharge and acquittal and a further order for medical examination of his mental state of health”. (Distilled from ground 1 of the Notice of Appeal).
2. Whether by the tenor of Appellant’s extra-judicial statements embodied in exhibits “A” and “B”, the defence of insanity was raised which needed thorough consideration by the trial Court and if in the affirmative, whether the failure to so consider has prejudiced the Appellant and consequently led to a miscarriage of justice”. (Distilled from ground 2 and 3 of the Notice of appeal).
The law is settled in the appellate Courts that issues for determination in an appeal against the decision of a lower Court must inure, arise from and be distilled from the grounds of the appeal which contain the real complaints against the decision of the lower Court. Where any issue submitted to the appellate Court for determination does not arise from and is not reasonably traceable to any of the valid grounds of the appeal, such issue would be invalid and incompetent for the appellate Court to consider and determine on the merit. See Nasiru v. State (1999) 2 NWLR (pt. 569) 87, Akpan v. FRN (2012) 1 NWLR (pt. 1281) 403, Amadi v. NNPC (2000) 6 SC (pt. 1) 66, Nwosu v. Imo State Env. Sanitation Agency (1990) 2 NWLR (pt. 135) 688, Shitta-Bey v. A. G., Federation (1989) 10 NWLR (pt. 570) 392, Garba v. State (2000) 4 SCNJ.
As has been ably demonstrated in the leading judgment, and shown above, the substance of the two (2) issues formulated for the Appellant and indicated to have been distilled from the three (3) grounds of the appeal, are not derivable and traceable to the grounds because they deal with a failure by the two lower Courts to consider a supposed and purported defence of mental disability or insanity of the Appellant at the time of the commission of the offence he was convicted for. From the Record of Appeal, the defence was not raised before the lower Courts and is not reasonably disclosed in the evidence adduced at the trial Court for the duty of the trial Court to have considered same in its judgment or the Court below to have dealt with same in the appeal before it on the basis of the grounds contained on the Notice of Appeal. That being the position, the law does not permit the Appellant to raise and submit at this stage, issue/s not raised before the lower Courts and not pronounced upon by them, not being an issue of jurisdiction, for the first time without the leave of Court. Babalola v. State (1989) 4 NWLR (pt. 115) 264, Uor v. Loko (1988) 2 NWLR (pt. 77) 430, Dagaci of Dere v. Dagaci of Ebwa (2006) 7 NWLR (pt. 979) 382, Friday v. Governor, Ondo State (2012) LPELR-7886, Obiakor v. The State (2002) 10 NWLR (pt. 612) 525, (2002) SCNLR, 193, Oseni v. Bajulu (2009) 18 NWLR (pt. 1172) 164.
In the above premises, I agree that this Court lacks the competence to adjudicate on issue(s) not raised and canvassed before the two (2) lower Courts in respect of which the leave of Court was not obtained to be raised as a new or fresh issue not arising or related to the grounds of an appeal before it.
For the above and the cogent reasons set out in the leading judgment, I too dismiss the appeal being devoid of merit.
Appearances:
MR. PHILLIP K. EMMANUEL, ESQ., with him, U.C. OKANI, ESQ. For Appellant(s)
M.G. CHIROMA, ESQ. (Director of Public Prosecutions, Ministry of Justice, Niger State) with him, J.K. ALFA, ESQ. (Senior State Counsel) For Respondent(s)
