Onwuchekwa Chukwu & Anor. V. The State (2006)

LawGlobal-Hub Lead Judgment Report

SAULAWA, J.C.A.

At the High Court of Abia State, Umuahia Judicial Division, Coram D. E. Njiribeako, J. the two appellants were charged with the offences of conspiracy and murder of one Nwachukwu Eke contrary to the provisions of sections 516(a) and 319(1) of the Criminal Code, Cap. 30, Laws of Eastern Nigeria, 1963, as amended. At the trial a total of eleven witnesses testified for the prosecution. The appellants testified in their own defence but called no any other witness. At the conclusion of the trial both appellants were convicted and accordingly sentenced to death by hanging. Not unnaturally, being dissatisfied with the said conviction and sentence, the two appellants have caused the records of the trial court to be transmitted to this court urging on us to quash the conviction and sentence passed thereon. It’s instructive that on 26/9/06 when this appeal came up for hearing, learned counsel adopted the briefs of arguments for the appellants and respondent respectively. The appellants have in the brief thereof identified only one issue for determination, to wit:

“i. Whether or not the learned trial Judge was right in convicting the appellants for murder having regard to the facts and circumstances of this case.”

On the other hand, the respondent has in the brief thereof also identified only one issue for determination thus:

“i. Whether the charge of murder preferred against the appellants was proved by the prosecution beyond reasonable doubt.”

Having contrasted the two issues alluded to above; I have no hesitation in coming to the conclusion that the fundamental question that calls for determination is whether the guilt of the two appellants had in fact been proved beyond reasonable doubt by the prosecution. It is trite that issues for determination formulated in briefs of argument must be precise and devoid of irrelevant complexities so as to ease comprehension of the matters to be adjudicated upon. See Guda v. Kitta (1999) 12 NWLR (Pt.629) 21. Hence, for the purpose of determining this appeal, I have deemed it expedient to adopt the issue formulated in the respondent’s brief referred to above.

However, after having painstakingly perused the entire records of this appeal and vis-a-vis the trial court’s record of proceedings, I was unable to trace any notice and grounds of appeal pertaining to the appellants. Thus it’s hardly surprising that the appellant’s learned counsel failed to allude to any ground of-appeal in the brief of argument thereof.

Most undoubtedly, it’s a fundamental principle that an issue for determination must be distilled from a competent ground of appeal. As such, where a ground of appeal is incompetent or non existent at all (as in the instant case), the issue formulated in the brief of argument is ipso jure incompetent. See Ayisa v. Akanji (1995) 7 SCNJ 245, (1995) 7 NWLR (Pt. 406) 129; Ogoyi v. Umagba (1995) 10 SCNJ 55, 62-63: (1995) 9 NWLR (Pt. 419) 283: Tsokwa Motors Nig. Ltd. V. Union Bank of Nig. Ltd. (1996) 9-10 SCNJ 294, 299-300; (1996) 9 NWLR (Pt. 471) 129: Mark Kele v. Nwerebere(l998) 3 SCNJ 84, 89: (1998) 3 NWLR (Pt. 543) 515; Shuaibu v. Nigeria Arab Bank Ltd. (1998) 4 SCNJ 109, 118 – 119: (1998) 5 NWLR (Pt. 551) 582; Agbaka v. Amadi (1998) 7 SCNJ 367, 374; (1998) 11 NWLR (Pt. 572) 16; Bendex Eng. Corp. v. Efficient Petr. (Nig.) Ltd. (2001) FWLR 118, 1208: (2001) 8 NWLR (Pt. 715) 333 respectively.

The above proposition is no doubt predicated on the premise that since an issue ought to be distilled from a ground of appeal representing the broad outline of the complaint against the decision being challenged, correlation between the two thus becomes imperative –

“in the sense that the kernel of complaint in the ground of appeal must be mirrored by the issue formulated from the ground as medium of dissecting and manifesting the entire plenitude of the complaint.”

See Bendex Eng. Corp. ” Efficient Petr: Ltd. (supra) per Olagunji (JCA) at page 1207 – 1208

It’s trite that for any appeal (both Civil and Criminal) to be competent, it must be commenced by the filing in the lower court of a notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which to appeal.

See Order 4 rules 3(1) and 4 (7) of the Court of Appeal Rules, 2002 which arc to the effect that:

3. (1) A person desiring to appeal to the court against any Judgment, sentence or order of the court below, whether in the exercise of its original or of its appellate jurisdiction, shall commence his appeal by sending to the Registrar of the court below a notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given, as the case may be, in the form of such notice respectively set forth as forms 1, 2, 3, 4, 5, or 7 in the second schedule to these Rules.

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