Abolore Isiaka V. The State (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SOTONYE DENTON-WEST, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Kwara State Holden at Ilorin Division and presided over by Hon. Justice M.A. Folayan, which judgment sentenced the appellant to Ten years imprisonment and a fine of N50,000.00. The appellant was arraigned on a one count charge of belonging to, engaging in and associating with secret cult within and outside institution of learning in the state contrary to Section 11 of the Secret Cult and Secret Societies in Educational Institution (Prohibition) Law 2004 of Kwara State.

When the charge was read to the appellant he pleaded not guilty. In proof of their case the prosecutor called three witnesses and tendered six exhibits, this include exhibit 5, (the appellant’s extra judicial statements made to the police in the course of the investigation).

The facts of the case are stated in the judgment of the lower court. At the close of the case of the prosecution, the learned counsel for the appellant opened his defense.

On 11/11/2010 parties however, filed their written addresses which they adopted. Respectively the learned trial Judge found the appellant guilty and sentenced him accordingly.

Dissatisfied with the decision of the learned trial judge, the appellant has appealed to this court on three grounds as can be found on page 87 of the record of Proceedings.

In line with the rules of this court, briefs were exchanged by the respective parties and in the brief settled on behalf of the appellant, three issues were formulated for determination, on the other hand, the learned Director of Public Prosecutions, Ministry of Justice, Kwara State on behalf of the State raised a preliminary objection and deduced two issues.

The three issues adumbrated by the appellant as calling for determination are reproduced hereunder inter-alia.

1. Whether exhibit 5 i.e. the purported confessional statement of the appellant could be a safe plank to have anchored the conviction of the appellant by the trial court. This issue relates to ground 1
2. Whether corroboration of a purported confessional statement can be found in the oral testimony of its maker. This issue relates to Grounds 1, 2 and 3.
3. Whether the prosecution proved its case beyond reasonable doubt against the appellant. The issue relates to Ground 2.

The Respondents on their own deduced two issues in its respondent brief of argument dated 26/7/2009 and deemed properly filed and served on 11/11/2010 as follows:

1. Whether from the circumstance of this case, the trial judge was right to have convicted the appellant based on his confessional statement before the court.
2. Whether the learned trial judge was right to have used the evidence of the accused to corroborate his confessional statement.

The appellant thereafter filed an appellant reply brief dated and filed 27/6/2009.

On 11/11/2010 the appellant and respondent counsel adopted their written addresses accordingly. The learned Counsel to the respondent J. A. MUMINI Esq., made an oral application to deem the respondent brief dated 26/06/2009 the notice of respondent intention to rely upon the preliminary objection dated 12/10/2009 and filed on 14/10/2009 as properly filled and served. Same was granted by the court. The appellant counsel A.B. Edun adopted the brief of argument dated 25/01/2010 and filled on 23/02/2010 but deemed filled on 24/03/2010 and his reply brief dated 29/05/2010 and filed same date, and prayed this court to allow his appeal.

The learned DPP adopted his respondent brief dated and filled 26/06/2010 and the respondent notice of intention to raise the preliminary objection dated on 12/10/2009 and filed 14/10/2009. He prayed the court to dismiss the appeal.

Before delving into the determination of the issues as set out by the parties the respondent’s preliminary objection will be considered. Arguing the preliminary objection, the respondent argued the preliminary objection on the ground that the notice of appeal purportedly filed by the appellant herein was not signed by the appellant but by his counsel in violation of the provision of Section 243 of the 1999 Constitution and order 16 Rule 4(1) of the Court of Appeal Rules 2007.

He argued further that, it is clear that it is only the accused that has the right to sign his Notice of Appeal in person and that this was not complied with by the appellant, he thereafter submitted that, failure of the appellant to sign the Notice of Appeal has rendered it incompetent, he cited the cases of STATE VS. JAMAAL (1998) 2 NWLR (pt 473) 383 & 399 and ADEKANYE Vs FRN (2005) 5 NWLR (pt 949) 433 and IKPASA Vs BENDEL STATE (1981) 9 SC to buttress his position.