Ahmed Saliu V. The State (2018)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

On February 8, 2010, at the Kwara State High Court, Ilorin Judicial Division, the appellant herein, and three others, were arraigned for the offences of Criminal Conspiracy, Rape and Armed Robbery contrary to Sections 97 and 283 of the Penal Code, Laws of Kwara State of Nigeria, and Section 1 (1) and (2) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Volume 14, Laws of the Federation of Nigeria, 2004, respectively. Nine witnesses presented the Prosecution’s case.

Nine exhibits were equally tendered. The appellant testified in an attempt to establish his defence. He, however, did not call any other witness. The third accused person, sequel to his No Case Submission, was acquitted and discharged on July 9, 2010. The other accused persons were however not that lucky as on December 21, 2010, they were convicted and sentenced to two year’s imprisonment for being in possession of stolen items of property under Section 319A of the Penal Code.

This conviction for a lesser offence stemmed from the Courts (hereinafter, simply, referred as “the

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trial Court) conclusion that the offences of conspiracy, Rape and Armed Robbery were not proved beyond reasonable doubt.

The appellant’s appeal at the Court of Appeal, having been dismissed, he proceeded to this Court entreating it to determine the three issues he formulated thus:

1. Whether the affirmation of the appellant’s conviction and sentence by the Court of Appeal was competent in view of the appellant’s invalid arraignment that borders on his right to fair hearing
2. Whether the Lower Court rightly invoked or relied on the doctrine of recent possession in affirming the conviction and sentence of the appellant
3. Whether the ingredients of the lesser offence of being in possession of stolen property, for which the Lower Court affirmed the appellant’s conviction and sentence, were properly subsumed in, or carved out of, the ingredients of conspiracy, rape or armed robbery

Learned counsel for the respondent, on his part, took out a preliminary objection. He formulated only one issue for the determination of the preliminary objection. His issue, in the preliminary objection, was woven around the omission to seek leave to

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raise Ground One and to argue issue one.

ARGUMENTS ON THE OBJECTION

Learned counsel for the respondent, J. M. Mumini, DPP, Kwara State, adopted and relied on the respondent’s brief filed on July 19, 2017. He submitted that where a party seeks to file and argue any fresh issue before this Court, he ought to obtain leave, Order 6 Rule 5 (b), Rules of the Supreme Court, 2008; Obiakor v. State [2002] 10 NWLR (Pt.776) 612, 620.

He pointed out that the appellant filed three Grounds of Appeal, pages 157 -160 of the record. He explained that issue one, which derives from Ground One of the Notice and Grounds of Appeal, neither emanated from the decision of the Lower Court nor from that of the trial Court. In simple terms, the issue of law complained about was not a subject of appeal at the Lower Court; hence, it cannot be canvassed before this Court without the leave of Court.

Worse still, issue one is a fresh issue/point of law not raised and argued in the Lower Courts. It has however, been canvassed in this Court without leave, Jov v. Dom [2001] FWLR (Pt.62) 2026, 2018. He urged the Court to resolve this issue in favour of the respondent and