OJOLADE v. STATE
(2022)LCN/5018(SC)
In The Supreme Court
On Friday, May 13, 2022
SC.1133C/2019
Before Our Lordships:
Chima Centus Nweze Justice of the Supreme Court of Nigeria
Amina Adamu Augie Justice of the Supreme Court of Nigeria
Helen Moronkeji Ogunwumiju Justice of the Supreme Court of Nigeria
Adamu Jauro Justice of the Supreme Court of Nigeria
Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria
Between
TUNDE OJOLADE APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
IT IS A CONSTITUTIONAL REQUIREMENT TO SEEK LEAVE OF COURT OF APPEAL NOT BEGN GROUNDS OF LAW
it is a constitutional requirement to seek leave of Court to appeal on grounds of appeal not being grounds of law. It is a condition precedent for invoking the appellate jurisdiction of this Court, Irhabor v Ogaiamien [1999] 8 NWLR (pt 616) 517; Uchendu v Ogboni [1999] 5 NWLR (pt 603) 337; Akpasubi v Umwemi [1982] 11 SC 113; Ukpong and Anor v Commissioner for Finance and Development [2006] 19 NWLR (pt 1013) 187; Opuiyo v Omoniwari [2007] 16 NWLR (pt 1060) 415; Yaro v Arewa Construction Ltd [2007] 17 NWLR (pt 1063) 333; Fasuyi and Ors v PDP and Ors (2017) LPELR-43462 (SC).
The explanation for this prescription is simple. The exercise of the right of appeal before this Court is only on questions of law, Section 233 (2) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In other words, appellant – like the present appellant – has no right to appeal on grounds of mixed law and facts unless leave of this Court or that of the Court of Appeal is first sought and obtained. The exceptional circumstances, where this can be done, have been highlighted in the leading judgment.
Learned counsel for the appellant should be well aware that he cannot just rush into Court with a Notice of Appeal or any other Originating process in any form or manner without exercising due care and diligence in making sure that all the pre-conditions to bringing such an appeal or process of such a nature before the Court are satisfied. CHIMA CENTUS NWEZE, J.S.C
Section 233(2) and (3) of the 1999 Constitution
It is clear from the wordings of Section 233(2) and (3) of the 1999 Constitution that any decision of the Court of Appeal that is not listed in Subsection (2) as appealable as of right cannot be appealed against unless the leave to appeal is obtained from either the Court of Appeal or this Court. HELEN MORONKEJI OGUNWUMIJU, J.S.C.
HELEN MORONKEJI OGUNWUMIJU, J.S.C. (Delivering the Leading Judgment): This is an appeal against the decision of the Court of Appeal, Kaduna Division Coram: M.A. Oredola Daniel O. Kalio and James Gambo Abundaga JJCA. Which affirmed the conviction of the appellant by the High Court of Jigawa State by Ahmed M. Abubakar J. on 3/3/17 for the offence of rape contrary to Section 282(1)(e) of the Penal Code. The judgment of the Court of Appeal being appealed against was delivered on the 18th day of April, 2019. Aggrieved by the judgment affirming his conviction, the appellant has appealed to this Court vide a notice of appeal filed on the 9th of May, 2019.
The facts that led to this appeal are as follows:
The appellant was arraigned before the High Court of Jigawa State for the offence of rape contrary to Section 282(1)(e) which is punishable under Section 283 of the Penal Code. Hajara Sanusi; the Prosecutrix while testifying as PW4 stated that the Appellant lured her with monetary gift to a secluded area around his shop while on her way to school and had carnal knowledge of her. The Prosecution in proof of its case called 5 witnesses and tendered 4 exhibits. The appellant on his part testified for himself and called one witness. At the end of trial, the High Court convicted the appellant and sentenced him to life imprisonment.
Aggrieved by the decision of the trial Court, the appellant appealed to the Court of Appeal which after due consideration of the appeal, allowed the appeal in part by affirming the appellant’s conviction but reduced his sentence from life imprisonment to 15 years’ imprisonment.
The Appellant’s brief was filed by O. Ben-Whyte Esq on 25/11/2019. The Respondent’s brief was filed by Dr. Musa Adamu Aliyu on 19/2/2020. In the Appellant’s brief, the following issues were settled as follows:
i. Was the Court of Appeal right in affirming the appellant’s conviction despite the material contradictions in the prosecution’s case? (This issue is distilled from ground 1)
ii. Was the appellant’s conviction based on his confessional statement, proper? Without a jurat or compelling corroborative evidence. (This issue is distilled from grounds 2 and 3)
The Respondent equally settled two issues for determination as follows:
1. Whether from the available record the Learned Justices of the lower Court were right to have affirmed the trial Court’s conviction of the appellant for the offence of Rape.
2. Whether the confessional statement of the appellant tendered before the trial Court needs a jurat for it to be admissible.
The grounds of appeal herein in the notice filed on 9/5/2019 and the particulars are set out as stated on Pg. 219-222 of the record.
GROUND ONE
The learned Justices of the Court of Appeal erred in law when it affirmed the conviction of the appellant despite the material contradictions that were evident in the testimony of the prosecution witnesses.
PARTICULARS OF ERROR
1. There were material contradictions in the evidence of PW2 and PW3 who were the star prosecution witnesses.
2. The contradiction in the prosecution’s case rendered the evidence unreliable and unworthy of sustaining the conviction of the appellant.
3. The Court of appeal in exercise of its appellate jurisdiction, exceeded its adjudicatory role by attempting to justify the material conflict in the prosecution’s case rather than resolving same in favor of the appellant who was the accused
4. There was material conflict between the 4 Exhibits relied upon by the prosecution i.e. Exhibits R1, R2, R3 and R4 and the testimony of the prosecution witnesses.
5. There was recurring and unexplained contradiction in the prosecution’s evidence as to the exact date when the offence was committed which is sufficient to cast a doubt on the guilt of the accused/appellant
GROUND TWO
The Justices of the Court of Appeal erred in law when it affirmed the conviction of the appellant based on the following findings “the confessional statements Exhibits R1 and R2 were corroborated by the evidence of the medical director (PW5) and the medical report (Exhibit R4)”
PARTICULARS OF ERROR:
1. The confessional statement relied upon by the Court i.e. Exhibits R1 & R2 were made without a jurat, thus disqualifying the confession as deliberate, direct, positive and unequivocal confirmation of the guilt of the appellant.
2. The confessional statement was retracted by the appellant at the earliest opportunity of him being aware of its content.
3. The supposed confessional statement becomes even more suspect as it was made more than 3 weeks before the alleged rape.
4. There was no evidence of an independent witness who translated Exhibit R1 to R2 to confirm that the appellant actually understood the purport of his confession.
5. The medical report relied upon by the Court as a corroborative evidence did not by any stretch confirm the appellant as the rapist.
GROUND THREE
The Justices of the Court of Appeal erred in law when it held as follows “The totality of admissible evidence adduced during the trial at the lower Court has left me in no doubt that the appellant committed the offence of rape”.
PARTICULARS OF ERROR
1. The statement of the prosecutrix i.e. PW4 incriminating the accused was induced by threat and therefore ought to have been viewed with circumspection.
2. The confessional statement that formed the basis of the appellant’s conviction was translated without a jurat nor the evidence of an independent interpreter who translated the contents to the appellant.
3. The confessional statement was retracted by the appellant at the earliest opportunity which makes it pertinent for a compelling corroborative evidence to support it.
- There was no direct nor circumstantial evidence that corroborated the allegation of rape by the victim who testified as PW4.
It is clear from the above that all the grounds of appeal are either of facts or mixed law and facts. From the record it is clear that no leave was sought or obtained from the Court below or this Court to commence this appeal.
The trial Court’s sentence of life imprisonment was considered to be excessive in view of the fact that the appellant was a first time offender and it reduced to 15 years’ imprisonment by the Court of Appeal. Thus this is an appeal against the concurrent findings of fact and conclusions of law of the trial Court and the Court of Appeal. It is only in cases where the ultimate sanction of death sentence is imposed that there is no need to seek and obtain leave to appeal on mixed law and facts. All the grounds of this appeal raise only questions of facts or mixed law and facts, the appellant should have first sought and obtained leave of the Court of Appeal or of this Court to appeal on grounds of facts or mixed law and facts before commencing this appeal by virtue of Section 233(2) and (3) of the 1999 Constitution (as altered) which provides thus:
An appeal shall lie from the decision of the Court of Appeal to the Supreme Court as of right in the following cases.
a) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal.
b) Decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution
c) Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be contravened in relation to any person
d) Decision in any criminal proceedings in which any person has been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by any other Court
e) Decisions on any question-
i) Whether any person has been validly elected to the office of President or Vice-President under this Constitution.
ii) Whether the term of office of President or Vice- President has ceased.
iii) Whether the term of office of President or Vice-President has become vacant.
iv) Whether any person has been validly elected to the office of Governor/or Deputy Governor under this Constitution.
v) Whether the term of office of Governor or Deputy Governor has ceased
vi) Whether the office of Governor or Deputy Governor has become vacant and
f) Such other cases as may be prescribed by an Act of the National Assembly.
(3) subject to the provisions of Subsection (2) of this Section, an appeal shall lie from the decision of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court.
The nature of the decision of the Court of Appeal appealed against is not listed in Section 233(2) as one of the decisions of the Court of Appeal, which is appealable as of right.
It is clear from the wordings of Section 233(2) and (3) of the 1999 Constitution that any decision of the Court of Appeal that is not listed in Subsection (2) as appealable as of right cannot be appealed against unless the leave to appeal is obtained from either the Court of Appeal or this Court.
Since the leave of the Court of Appeal or of this Court was not first sought and obtained before commencing this appeal on grounds of facts or mixed law and facts, the notice of appeal and thus the appeal is unconstitutional and incompetent.
The incompetence of this appeal robs this Court of the jurisdiction to entertain and determine it.
This appeal is hereby struck out.
CHIMA CENTUS NWEZE, J.S.C.: My Lord, Ogunwumiju, JSC, obliged me with the draft of the leading judgment just delivered. I agree with His Lordship that this appeal should be struck out.
My Lords, I have observed that very recently, in the vast number of appeals before this Court, failure, neglect or omission to seek leave of Court has become an almost generic error in appeals on Grounds of mixed law and facts.
I am, therefore, constrained to remind learned counsel who agitate matters before this Court that it is a constitutional requirement to seek leave of Court to appeal on grounds of appeal not being grounds of law. It is a condition precedent for invoking the appellate jurisdiction of this Court, Irhabor v Ogaiamien [1999] 8 NWLR (pt 616) 517; Uchendu v Ogboni [1999] 5 NWLR (pt 603) 337; Akpasubi v Umwemi [1982] 11 SC 113; Ukpong and Anor v Commissioner for Finance and Development [2006] 19 NWLR (pt 1013) 187; Opuiyo v Omoniwari [2007] 16 NWLR (pt 1060) 415; Yaro v Arewa Construction Ltd [2007] 17 NWLR (pt 1063) 333; Fasuyi and Ors v PDP and Ors (2017) LPELR-43462 (SC).
The explanation for this prescription is simple. The exercise of the right of appeal before this Court is only on questions of law, Section 233 (2) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In other words, appellant – like the present appellant – has no right to appeal on grounds of mixed law and facts unless leave of this Court or that of the Court of Appeal is first sought and obtained. The exceptional circumstances, where this can be done, have been highlighted in the leading judgment.
Learned counsel for the appellant should be well aware that he cannot just rush into Court with a Notice of Appeal or any other Originating process in any form or manner without exercising due care and diligence in making sure that all the pre-conditions to bringing such an appeal or process of such a nature before the Court are satisfied.
I have read the instant three Grounds of Appeal as set out in the Notice of Appeal before this Court. My finding is that the issues raised in them are, entirely, issues of mixed law and facts. As it is well known, this Court cannot venture beyond the boundaries circumscribed by the Constitution in Section 233 (2) and (3). It follows that, in the absence of a competent ground of law in the instant appeal, there is no competent appeal before this Court.
Since leave of Court was not sought and obtained, this appeal is incompetent.
I, therefore, agree with the leading judgment that the appeal should be struck out. Appeal is, therefore, struck out accordingly.
AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother, Ogunwumiju, JSC, and I agree with him that this appeal is incompetent and must be struck out. It is settled law that where a ground of appeal involves questions of fact or of mixed law and fact, leave to appeal must be obtained from the Court below or this Court, and the failure to obtain the requisite leave renders the appeal filed incompetent – see Irhabor V. Ogaiamien (1999) 8 NWLR (Pt. 616) 517, Uchendu V. Ogboni (1999) 5 NWLR (Pt. 603) 337 and Akpasubi V. Umweni (1982) 11 SC 113, wherein Eso, “The appellate jurisdiction of this Court on questions of fact only exists where there has been leave of the Court of Appeal or of this Court. No appeal on questions of fact lies to this Court without such leave. In other words, where – question of fact has been brought before this Court without leave, the Court has no jurisdiction.”
So, where an appeal is to be with leave, but none was obtained, the condition precedent to the validity of such an appeal has not been fulfilled, and the appeal is incompetent, and the appellate Court has no jurisdiction to entertain same – Ukpong V. Comm., Finance and Econ. Dev. (2006) 19 NWLR (Pt. 1013) 187. In other words, this Court has no jurisdiction to entertain an appeal on a ground of fact or mixed law and fact unless the leave of Court is sought and obtained.
In this case, all the Grounds of Appeal contained in the Notice of Appeal filed by the appellant in this Court are grounds of fact or mixed law and facts, and he did not obtain the requisite leave of the Court before filing the appeal, therefore, this Appeal No. SC.1133C/2019 is incompetent, and it is struck out.
ADAMU JAURO, J.S.C.: I had the privilege of reading in advance, the lead judgment just delivered by my learned brother, Helen Moronkeji Ogunwumiju, JSC. I am in agreement with the reasoning and conclusion contained therein, to the effect that the appeal is incompetent and ought to be struck out.
Our law reports are replete with decisions of this Court restating the law to the effect that appeals from the lower Court to this Court on grounds of facts or of mixed law and facts do not lie as of right at all times. Where required, leave of the lower Court or of this Court must be sought and obtained before such an appeal can be competent. See Section 233(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as well as MOBIL PRODUCING NIG (UNLTD) V. JOHNSON & ORS (2018) LPELR-44359 (SC); NZEI & ANOR V. UNN & ORS (2016) LPELR-42826 (SC); GARUBA & ORS V. OMOKHODION & ORS (2011); LPELR- 1309 (SC). In criminal matters, it is only where the lower Court has sentenced a person to death or where the Court affirmed a sentence of death imposed by any other Court that an appeal shall lie as of right to this Court.
In the instant appeal, the appellant was sentenced to fifteen (15) years imprisonment, meaning his appeal, not being in respect of a capital offence, does not fall within the exception provided by Section 233(2)(d) of the Constitution. A close scrutiny of all the grounds of appeal together with their particulars shows that they are all grounds of facts or at best, grounds of mixed law and facts. The failure of the appellant to seek leave of the Court below or of this Court renders his appeal incompetent and robs the Court of the jurisdiction to entertain the present appeal.
In conclusion, by reason of the failure of the appellant to obtain the requisite leave to institute the instant appeal, I too hold that the appeal is incompetent and is deserving of being struck out.
Appeal struck out.
EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the judgment of my learned brother, Lord Justice, HELEN MORONKEJI OGUNWUMIJU, JSC. I completely agree with the reasoning, conclusions, decisions, including the orders therein.
Appearances:
O.BEN-WHYTE, ESQ. For Appellant(s)
DR MUSA ADAMU ALIYU (Honourable Attorney-General Jigawa State), with him, MUHAMMAD EL-USMAN (Principal State Counsel) For Respondent(s)
