ZAKARI v. KANO STATE (2022)

ZAKARI v. KANO STATE

(2022)LCN/16657(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Friday, May 20, 2022

CA/K/292B/C/2017

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Usman Alhaji Musale Justice of the Court of Appeal

Between

MUSBAHU ZAKARI APPELANT(S)

And

KANO STATE RESPONDENT(S)

RATIO

THE POSITION OF LAW ON HOW TO COUCH ISSUES FOR DETERMINATION OF APPEAL

Obviously, that is not how to couch issues for determination of appeal, which, like the grounds of appeal, should be concise complaints on law or facts, devoid of judgmental, argumentative or conclusive insinuations, and/or instigations, or narratives.
Order 19 Rule 3(1) of the Court of Appeal Rules, 2021 says:
“The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are in the Appellant’s view, the issues arising in the appeal.”
The issues (or complaints) have to be the focal points of every appeal, as appeals are argued on the Issues in the Appellate Courts. See Orji Vs Anyaso (1999) LPELR–5710 (CQA); Nnolim Vs Nnolim (2017) LPELR–41642 (CA); Ndagimba Vs Bagudu & Ors (2018) LPELR–44500 (CA).
In the case of Igbokwe Vs Edom & Ors (2015) LPELR-25576 (CA), this Court stated how a ground of appeal should be couched, and, I think the same also applies to the couching of issues for determination from the ground of appeal. It was held, therein:
“There are many decided authorities which caution Counsel against verbosity and other defects in the framing of grounds of appeal and issues therefrom, that the same must not be vague, verbose, argumentative, narrative, repetitive or general in terms. See Order 6 Rule 2 (3) and Rule 3 of the Court of Appeal Rules, 2011 and Kalu Vs Uzor (2006) 8 NWLR (pt.981) 66, where this Court (Per Rowland JCA, as he then was) said: “… I am of the strong view that a ground of appeal should contain precise, clear, unequivocal and direct statement of the decision being attacked. It must, in other words, give the exact particulars of the mistake, error or misdirection complained about, and a ground of appeal, without particulars, save the general or omnibus grounds, is defective and incompetent. A ground of Appeal must not be argumentative, or narrative, in compliance with the Provision of Order 3 Rule 2 of the Court of Appeal Rules, 2002, (now Order 6 Rule 2 (3) of the Court of Appeal Rules, 2007). If it is, it ceases to be a ground of appeal but an argument or a narrative, which rightful place is in proceedings before the Tribunal at the hearing of the appeal… Any ground of appeal which is argumentative, unnecessarily lengthy, elaborate, vague and which contains detailed reasoning may be struck out.” See also NNPC Vs Aminu (2014) ALL FWLR (pt. 716) 527; (2013) LPELR-21396 (CA); Olufeagba Vs Abdu-Raheem (2009) 18 NWLR (pt.1173) 384.” PER MBABA, J.C.A.

THE POSITION OF LAW ON GROUNDS OF APPEAL

A ground of appeal is against the decision and it must challenge the ratio decidendi and not the obiter dicta. On no account must there be a disconnect between the grounds of appeal and the controversy between the parties. This also applies to the issues which must arise from the ground since appeals are decided on issues for determination which are formulated from the grounds of appeal. See: Abubakar v. B.O. & A.P. Ltd (2007) 18 NWLR (Pt. 1066) p.319 Adesanya v. President of Nigeria (1981) 12 NSCC p.247.”
In the case of Labim Ltd & Anor Vs The Chairman, Ona Ara Local Government & Anor (2013) LPELR–21115 (CA) my Lord Daniel-Kalio, JCA, said:
“There is every need for counsel to accurately formulate issues. Indeed, the a, b, c, of brief writing that is, accuracy, brevity and clarity should be scrupulously adhered to. Issues for determination should be couched in a manner that they accord with the facts as contended, the party formulating them. See Pele Ogunye & Ors Vs The State (1999) 4 SCNJ 33” PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this appeal against the judgment of Kano State High Court in Charge No. K/137C/2011, delivered on 21st November, 2016 by Hon. Justice R. A. Sadi, wherein the learned trial Judge convicted the Appellant on a two counts charge of criminal conspiracy and offence of abetment to commit murder (culpable homicide), and sentenced him to death, by hanging.

At the lower Court, Appellant (as 3rd Accused person) was charged, with 2 other Accused persons, as follows:
COUNT ONE:
That you, Sani Ibrahim, alias Barmo, ‘M’ adult of Dorayi Quarters, Kano, Garzali Mohammed (Alias Gaza) ‘M’ adult of Dorayi Quarters, Kano and Musbahu Zakari, ‘m’ adult of Dorayi Quarters, Kano, on or about 18th November, 2010 at about 10:50 hours at Dorayi Quarters, within the Kano Judicial Division, conspired to commit criminal acts, to wit: stabbed Baba Umar which resulted to his death, thereby commit an offence punishable under Section 97 of the Penal Code.
COUNT TWO: …
COUNT THREE:
That you Musbahu Zakari (Alias Tuwawu) ‘M’ of Dorayi Quarters Kano, on or about 18th November 2010 at about 1050 hours at Dorayi Quarters, Kano within Kano Judicial Division, committed the offence of culpable homicide punishable with death, in that you helped one Sani Ibrahim, alias Barmo, of Dorayi Quarters, Kano and Garzali Mohammed, alias Gaza in the commission of the said offence of culpable homicide punishable with death by doing an act, to wit: holding one Baba Umar, while the said Sani Ibrahim alias Barmo, and Garzali Mohammed (Alias Gaza) stabbed the said Baba Umar (male) of Dorayi Quarters, with a knife, which resulted to his death, you thereby committed an offence punishable under Sections 85 and 221(b) of the Penal Code Laws. (See pages 1-2 and 165 of the Record of Appeal)

Appellant had pleaded NOT GUILTY to the charge, when the same was read to him (and other accused persons) and interpreted in Hausa Language and he appeared to understand the same.

After hearing the case and considering the evidence and the addresses of counsel, the trial Judge convicted the Appellant (as well as the other accused persons) and sentenced him to death by hanging. The Court said on pages 224 to 227 of the Records, as follows:
“The above quoted statement at CID office Bompai, Kano, amounts to confessional statement, suggesting and disclosing what role the 3rd accused person played in the act that led to or resulted in the death of the deceased in this case. The act of holding Baba Umar by the 3rd Accused person while the 1st and 2nd accused persons/convicts were stabbing him with a knife amount to encouragement of the two other accused persons. That act of holding Baba Umar was very much positive as action speaks louder than voice and I so hold.
From the same confessional statement, the 3rd Accused person was an abettor to the commission of the offence of culpable homicide punishable with death under Section 221(b) against the deceased by the 1st and 2nd accused persons/convicts and I so hold…
The 3rd accused person as DW3 had in his defence stated that, among other things:
“… I did not know any of the 1st and 2nd accused persons before this incident… what I know is that on 21/11/2010 at a place by Kershen Waya, where we used to discuss one of my friends called Yakini came and asked me to escort him to the Gwale Police Station. It was in the night around 9:00pm….my friend came out of the police station. As I put on my motor cycle ready to go, some two people came and switched off my motorcycle. I asked those two people what was the matter. They told me I was invited in the police station. The following morning, that was 22/11/10. (sic) They again asked me my name, my parent’s name and the school I attended. Then told me I was being charged to (sic) abetting/aiding the offenders to escape.
I have been there for 35 days. I learnt that I was not the only one being charged with the same offence but 3 of us were being charged with the same offence. The other two people have been released on my 36th day. One (sic) the same day on (sic) which the other two people were released, the 1st and 2nd accused persons herein were brought. Then myself and these two (1st and 2nd) accused persons were charged with the same offence… Sani Ibrahim asked me why did they join me with them? Sani Ibrahim is the 1st accused person. The 1st accused person asked me where do I live. I told him I live at Dorayi western side. The 1st accused person then said it is because we live in the same area that they joined you with us. I said I did not know…”
This defence of the 3rd accused is in line with the statements of the 3rd accused person at Gwale Police Station which were tendered by the prosecution but were rejected by this Hon. Court. The rejected statements of the 3rd accused person to the police at Gwale Police Station were dated 30/11/2011 and 5/01/2011 (sic) respectively. However, the statement of the 3rd accused person to the police at State CID, Bompai, Kano as contained in exhibit 8 which is English version of exhibit 7 was made to the police thereat on 22/01/2011. The said statement was made at different police, different atmosphere, different date and before different persons.
I am of the humble but firm view that it superceded the tendered but rejected the (sic) statements of the 3rd accused person made to the police at Gwale Police Station and I so hold. The 3rd accused as DW3 failed to offer any reasonable and formidable defence to the amended 3rd count charge against him apart from general denied (sic) to the charge. He only succeeded in narrating what happened to him from his arrest to the date before being transferred to State CID Bompai, Kano.
The evidence adduced by the prosecution against the 3rd accused person as contained on his confessional statement to the police at the State CID Bompai, Kano, prayed and implicated the 3rd accused person as a real and active participant in the commission of offence of culpable homicide punishable under Section 221(b) of the Penal Code Laws of Kano State of Nigeria, 1991. It is confessional statement to the commission of the offence/crime (sic) revealed that this act prevented the victim of the crime (Baba Umar) now deceased from making any move to escape from the brutal and ungodly acts of the 1st and 2nd accused persons convicts, as he the 3rd accused person, held the deceased while being stabbed with a knife by the 1st and 3rd accused persons/convicts.
In my candid opinion, the prosecution in this case has succeeded in proving the offence of abetment under Section 85 of the Penal Code, Laws of Kano State of Nigeria, 1991 beyond reasonable doubt against you Musbahu Zakari, alias Tuwawu…”

That is the decision, Appellant appealed against, as per the Notice and Grounds of Appeal, on page 229 to 234 of the Records, with 4 (four) grounds of appeal. Appellant filed his brief of arguments on 1/6/2017 and distilled 3 (three) issues for the determination of the Appeal, namely:
(1) To succeed in a charge of conspiracy, prosecution, apart from proving criminal intent, must establish the element of agreement to do something which is unlawful, or to do something which is lawful by unlawful means. Will the fact that appellant held the deceased simpliciter, after he was stabbed by a co-accused, correctly amount to agreement to commit murder warranting the conviction of the appellant? (Grounds 2 and 3).
(2) In a charge for abetment under Section 85 of Penal Code, the initial element is instigation or positive act of encouragement to do the act or omission which constitute the offence. There is no shred of evidence that the appellant instigated or encouraged the murder of Baba Umar (deceased). Is it justifiable in law to convict an accused for the offence of abetment in the face of lack of evidence of instigation or encouragement? (Ground 4)
(3) It is settled law that prosecution must prove its case against the accused beyond reasonable doubt. Will prosecution be said to have discharged the burden of proof beyond reasonable doubt when it failed in establishing the elements of the offence charged? (Ground 1)

The Respondent filed its Brief on 10/4/2019, which was deemed duly filed on 11/1/2022 and listed the 3 Issues, by the Appellant for the determination of the appeal, and picked quarrel with the issues.

On Issue 1, Respondent’s Counsel said it is argumentative; he said that an issue for determination should state the complaint and avoid challenging, as challenge should be reserved to the argument of the Brief.

The Counsel for Respondent tried to reformulate the Issue 1 to read:
Whether the learned trial Judge was right in finding that ingredients of the offence of conspiracy had been proven against the Appellant?

On Issue 2, Respondent’s Counsel said that Appellant fell into the error of argument of the issue straightway, and missed the point of raising issue, when he queried – is it justifiable in law to convict an accused for offence of abetment in the face of lack of evidence of instigation or encouragement? Counsel said that that issue should have been:
Whether the learned trial Judge was right when the (sic) convicted Appellant for the offence of abetment?

On Issue 3, Counsel said that Appellant claimed to have distilled the issue from ground one of the appeal, but that a close look at page 229 of the Records of Appeal, shows that Ground One is a complaint against conviction of the Appellant for conspiracy. Therefore, Counsel said it was improper for Appellant to formulate an issue on proof beyond reasonable doubt and purport to submit that as framed from ground one. He asserted that ground one was grievance against conviction for conspiracy and so issue three amounted to duplication of issues. He urged us to strike out Issue 3.

I am not aware of any Reply Brief by Appellant to contest these observations.

RESOLUTION OF THE ISSUES
This appeal was heard on 14/3/2022, and on that date, parties were absent and their Counsel; the Briefs before us were deemed duly argued, since there was evidence of service of hearing notices on the parties, through their Counsel, who also took active part in the case on 11/1/2022, when Respondent’s Counsel moved the Court to deem Respondent’s Brief, filed on 10/4/2019, as duly done.

As rightly observed by the Respondent’s Counsel, I think Appellant’s Counsel blundered, greatly, in the way he formulated issues for the determination of this appeal, as each of the three purported issues distilled by Appellant for determination of the appeal is flawed, and cannot pass the requisite format/standard stipulated for acceptable ground(s) of appeal and issue(s) for determination.

Order 3 Rule 2(3) of the Court of Appeal Act 2021, states:
“The Notice of Appeal shall set forth concisely and under distinct heads, the grounds upon which the Appellant intends to rely at the hearing of the appeal, without any argument or narrative and shall be numbered consecutively”
By Order 3 Rule 3:
“Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence. A ground of appeal or any part thereof, which is not permitted under this Rule may be struck out by the Court suo motu or on application by the Respondent”
And by Order 3 Rule 6 “The Court shall have power to strike out a Notice of Appeal, when an appeal is not competent or for any other sufficient reason, provided that where the incompetence is not a fundamental defect, the Court may direct any party to rectify any defect in the Notice of Appeal and limit the time within which the defect shall be rectified.”

I found some problems with the formulation of the grounds of appeal by the Appellant, and the way he relates them to the issues formulated by him (Appellant) on/from the grounds being offensive, as the issues appear to be strangers to the grounds and/or are dangerous conclusions or augments/submissions, instead of complaints founded on the grounds of Appeal.

I have already reproduced the issues by the Appellant, as follows:
(1) To succeed in a charge of conspiracy, prosecution, apart from proving criminal intent, must establish the element of agreement to do something which is unlawful or to do something which is lawful by unlawful means. Will the fact that the appellant held the deceased simpliciter, after he was stabbed by a co-accused, correctly amount to agreement to commit murder warranting the conviction of the appellant? (Grounds 2 and 3).
(2) In a charge for abetment under Section 85 of Penal Code, the initial element is instigation or positive act of encouragement constitute the offence. There is no shred of evidence that the appellant instigated or encouraged the murder of Baba Umar (deceased). Is it justifiable in law to convict an accused for the offence of abetment in the face of lack of evidence of instigation or encouragement? (Ground 4)
(3) It is settled law that prosecution must prove its case against the accused beyond reasonable doubt. Will prosecution be said to have discharged the burden of proof beyond reasonable doubt when it failed in establishing the elements of the offence, charged? (Ground 1)

Appellant’s grounds of appeal (without their paragraphs) were:
1) The learned trial Judge erred in law when he convicted the Appellant of conspiracy without proof beyond reasonable doubt of the alleged offence.
2) The learned trial Judge erred in law when he held on the issue of conspiracy, thus:
I further hold that the 3rd accused person agreed with the 1st and 2nd accused person to cause the death of the deceased in this case (Baba Umar).
3) The learned trial Judge erred in law when, in convicting the Appellant of conspiracy, he held thus:
“I am equally successfully satisfied that the prosecution has successfully through the confessional statement of the 3rd accused person proved the offence of criminal conspiracy against the 3rd accused person punishable under Section 97 of the Penal Code Laws of Kano State of Nigeria, 1991, beyond reasonable doubt. Thus, I… find you guilty of the said offence as charged under the 1st count charge and hereby do convict you…”
4) The learned trial Judge erred in law when he convicted the Appellant of abetment without prove beyond reasonable doubt.

As seen above, the grounds 1, 2 and 3 of the appeal are all quarrels with the conviction for conspiracy, amounting to proliferation of grounds on the same complaint! Appellant claimed to have distilled his purported Issue One (which is a strong argument and conclusion, rather than complaint) from grounds 2 and 3. Appellant’s purported Issue 2 (which is also a strong argument/submission and conclusion) is said to derive from ground 4. That issue is an indictment of the Court, based on dangerous conclusion, when, after the opening statements, Counsel queried:
“Is it justifiable in law to convict an accused for the offence of abetment in the face of lack of evidence of instigation or encouragement?”

That appeared to be a judgment/ruling which has concluded that there was no evidence of investigation or encouragement to found the decision of the Court, convicting Appellant! Thus, even without arguing the appeal and Issue, Appellant’s Counsel had written his judgment!

And on the Issue 3, said to flow from ground 1 (still on conspiracy) Appellant’s Counsel also made a forceful argument and conclusion, instead of raising a complaint. A close look at the purported Issue 3 also shows that it does not flow from the said ground 1, as it submitted:
“It is settled law that prosecution must prove its case against the accused beyond reasonable doubt. Will prosecution be said to have discharged the burden of proof beyond reasonable doubt, when it failed in establishing the elements of the offence, charged?”

Obviously, that is not how to couch issues for determination of appeal, which, like the grounds of appeal, should be concise complaints on law or facts, devoid of judgmental, argumentative or conclusive insinuations, and/or instigations, or narratives.
Order 19 Rule 3(1) of the Court of Appeal Rules, 2021 says:
“The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are in the Appellant’s view, the issues arising in the appeal.”
The issues (or complaints) have to be the focal points of every appeal, as appeals are argued on the Issues in the Appellate Courts. See Orji Vs Anyaso (1999) LPELR–5710 (CQA); Nnolim Vs Nnolim (2017) LPELR–41642 (CA); Ndagimba Vs Bagudu & Ors (2018) LPELR–44500 (CA).
In the case of Igbokwe Vs Edom & Ors (2015) LPELR-25576 (CA), this Court stated how a ground of appeal should be couched, and, I think the same also applies to the couching of issues for determination from the ground of appeal. It was held, therein:
“There are many decided authorities which caution Counsel against verbosity and other defects in the framing of grounds of appeal and issues therefrom, that the same must not be vague, verbose, argumentative, narrative, repetitive or general in terms. See Order 6 Rule 2 (3) and Rule 3 of the Court of Appeal Rules, 2011 and Kalu Vs Uzor (2006) 8 NWLR (pt.981) 66, where this Court (Per Rowland JCA, as he then was) said: “… I am of the strong view that a ground of appeal should contain precise, clear, unequivocal and direct statement of the decision being attacked. It must, in other words, give the exact particulars of the mistake, error or misdirection complained about, and a ground of appeal, without particulars, save the general or omnibus grounds, is defective and incompetent. A ground of Appeal must not be argumentative, or narrative, in compliance with the Provision of Order 3 Rule 2 of the Court of Appeal Rules, 2002, (now Order 6 Rule 2 (3) of the Court of Appeal Rules, 2007). If it is, it ceases to be a ground of appeal but an argument or a narrative, which rightful place is in proceedings before the Tribunal at the hearing of the appeal… Any ground of appeal which is argumentative, unnecessarily lengthy, elaborate, vague and which contains detailed reasoning may be struck out.” See also NNPC Vs Aminu (2014) ALL FWLR (pt. 716) 527; (2013) LPELR-21396 (CA); Olufeagba Vs Abdu-Raheem (2009) 18 NWLR (pt.1173) 384.”
See also the case of PDP Vs Sherrif & Ors (2017) LPELR–42736 (SC) where my Lord Rhodes-Vivor JSC said:
“Order 8 Rule 2(3) of the Supreme Court Rules state that: “The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.” When a party is not satisfied with a decision he files a Notice of Appeal. The Notice of Appeal contains grounds of appeal. The grounds of appeal represent the appellant’s complaint against the decision which he wants the Court to correct or remedy. A ground of appeal is against the decision and it must challenge the ratio decidendi and not the obiter dicta. On no account must there be a disconnect between the grounds of appeal and the controversy between the parties. This also applies to the issues which must arise from the ground since appeals are decided on issues for determination which are formulated from the grounds of appeal. See: Abubakar v. B.O. & A.P. Ltd (2007) 18 NWLR (Pt. 1066) p.319 Adesanya v. President of Nigeria (1981) 12 NSCC p.247.”
In the case of Labim Ltd & Anor Vs The Chairman, Ona Ara Local Government & Anor (2013) LPELR–21115 (CA) my Lord Daniel-Kalio, JCA, said:
“There is every need for counsel to accurately formulate issues. Indeed, the a, b, c, of brief writing that is, accuracy, brevity and clarity should be scrupulously adhered to. Issues for determination should be couched in a manner that they accord with the facts as contended, the party formulating them. See Pele Ogunye & Ors Vs The State (1999) 4 SCNJ 33”
And in NMCN VS Adesina (2016) LPELR–40610 (CA), my Lord, Ogakwu, JCA said:
“Equally trite is that in order to conduce to clarity for the proper determination of an appeal, the issues for determination have to be concise and ad rem Musa Sha (Jnr) Vs Da Rap Kwan (2005) 5 SCNJ 101 at 127.”
Thus, issue for determination of appeal, as grounds of appeal, should not be verbose, argumentative, vague, legal conclusions or legal submissions, as done by Appellant in this appeal.

There is therefore no competent issue for determination of this appeal, as I strike out the purported Issues 1, 2 and 3 of the appeal, formulated by the Appellant, for being incompetent, as explained above. The appeal is accordingly, struck out.

BOLOUKUROMO MOSES UGO, J.C.A.: I read in advance, the judgment delivered by my learned brother ITA GEORGE MBABA, J. C. A. I am in agreement with his conclusion that the appeal is incompetent; accordingly, I also strike it out.

USMAN ALHAJI MUSALE, J.C.A.: My learned brother ITA G. MBABA, JCA obliged me with a draft of the leading judgment delivered in this appeal. I entirely agree with the judgment and the way the issues were treated by My Lord. I have nothing more to add. I abide by the conclusion reached therein.