Adamu v. State (2022)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Lead Judgment)

The appellant and one other were charged before the High Court of Jigawa State, Birnin Kudu Judicial Division on a two-count charge of conspiracy and attempted theft contrary to Sections 97 and 288 of the Penal Code.

They pleaded guilty and were summarily convicted and sentenced to 5 years imprisonment each. However, having already spent 5 years in custody from March 1998 when they were first detained, they were deemed to have served their sentence and ordered to be released.

​They were dissatisfied with the judgment and appealed to the Court below vide an undated notice of appeal filed on 23/3/2010 containing 3 grounds of appeal. Both parties formulated issues for determination.

The appellant formulated four issues while the respondent formulated two issues. The respondent’s issues, which were adopted by the Court for the determination of the appeal were:

1. Whether this appeal as constituted is competent and not an academic exercise.
   ​2. Whether in the circumstances of this case the trial Court was right to have convicted the appellants on their plea of guilt?

After consideration of the submissions of learned counsel as argued in their briefs, the Court below dismissed the appeal on the following grounds:

1. That the appeal was an academic exercise having regard to the fact that the appellants had already served and completed their prison sentence,
2. That the notice of appeal jointly filed by both appellants was incurably defective having regard to the provisions of Order 16 Rule 3(1) and (2) of the Court of Appeal Rules.

The appellant is dissatisfied with the judgment and has further appealed to this Court vide his notice of appeal filed on 14/7/2012 containing 3 grounds of appeal. The respondent filed a notice of preliminary objection on 15/12/17 which is argued in its brief.

​At the hearing of the appeal on 24/2/22 NELSON UZUEGBU ESQ., adopted and relied on the appellant’s brief filed on 5/6/2013 and deemed filed on 23/10/2019 and his Reply Brief filed on 23/10/2019 also deemed filed on 23/10/2019 in urging the Court to dismiss the respondent’s preliminary objection and to allow the appeal. SULEH UMAR ESQ. adopted and relied on the Respondent’s brief filed on 15/12/2017 containing arguments in support of his preliminary objection in urging the Court to uphold the preliminary objection and strike out the appeal or alternatively to dismiss the appeal on the merits.

It has always been the practice of the Court to consider and determine first a preliminary objection that seeks to bring the appeal to an end in limine. In the event that the Court finds the notice of appeal to be incompetent, that would sound the death knell of the entire appeal. Being an originating process, if the notice of appeal is incompetent, the Court would be robbed of jurisdiction to entertain the appeal: See: Petgas Resources Ltd. Vs Mbanefo (2018) 1 NWLR (Pt,1601) 442; Galadima vs The State (2017) 3 SC 75; APC vs Nduul (2018) 5 SC (Pt. III) 135.

The grounds of objection are set out in paragraph 5.02 of the respondent’s brief as follows:

1. That the three grounds of appeal in the undated Notice of Appeal initiating the appeal do not arise from or relate to the judgment of the Court of Appeal which is appealed against.
2. The issue complained against in the third ground of appeal (issue of defective charge) was never canvassed beforethe trial Court and the Court of Appeal, and no leave of Court was obtained before fling the said ground of appeal.
3. The Notice of Appeal filed on the 13th day of December was not dated as required by the rules of this Court.

In support of the preliminary objection, learned counsel for the respondent observed that the lower Court, in determining the appeal before it, restricted itself to the preliminary objection raised by the respondent and did not consider the issues raised challenging the merit of the judgment of the trial Court.

He submitted that in the circumstances, the three grounds of appeal have no nexus with the decision appealed against. Relying on the case of Babalola vs The State (1989) 4 NWLR (Pt.115) 264 @ 294 G-H, he submitted that a ground of appeal which is not predicated on the ratio decidendi of the decision appealed against will go to no issue. See also: C.C.B. Plc vs Ekperi (2007) 3 NWLR (Pt.1022) 493 @ 509 C- E.

​Learned counsel submitted further that Ground 3 of the notice of appeal raises a fresh issue not argued before the lower Court and for which leave ought to have been obtained. He submitted that failure to obtain leave renders the ground incompetent. He referred to: Ogundare Vs Ogunlowo (1997) 6 NWLR (Pt. 509) 360 @ 368 E; Kuusu vs Udom (1990) 1 NWLR (Pt.127) 421 @ 431 C – G; Veepee Ind. Ltd vs Cocoa Ind Ltd. (2008) 13 NWLR (Pt.1105) 486 @ 513 A-B.

It is further submitted by learned counsel that Ground 1, which is an omnibus ground of appeal, cannot sustain the instant appeal, as it raises issues of fact, which were not decided by the Court below. He submitted that the position of the law is that an omnibus ground of appeal cannot be used to raise an issue of law. He referred to: Ben vs The State (2006) 16 NWLR (Pt.1006) 582 @ 606 – 603 H -A; F.M.H. vs C.S.A. Ltd (2009) 9 NWLR (Pt.1145) 193 @ 209 F – G; Nwokidu vs Okanu (2010) ALL FWLR (Pt.522) 1633 @ 1648 D- E.