Adamu Sheidu V. The State (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

The Appellant was charged with a one (1) count charge of culpable homicide punishable with death in that he was said to have caused the death of one Abdul Angulu by stabbing him with a knife in the chest with the knowledge that death would be the probable consequence of such an act, under Section 221 of the Penal Code. At the end of the trial before the Kogi State High Court sitting at Abegukolo, (hereafter to be called the Lower Court), the Appellant was on 22/5/09 convicted of the offence of culpable homicide not punishable with death under Section 224 of the Penal Code and sentenced to ten (10) years imprisonment.

Being dissatisfied with his conviction, a Notice of Appeal was filed for the Appellant against the decision. The undated Notice of Appeal which appears at pages 121 – 122 of the printed Record of appeal contains two (2) grounds of appeal; ground 1 an error of law and ground 2, the omnibus ground. Without the particulars set out under ground 1, the grounds of appeal are:-

“1. The learned trial Judge erred in law when whilst considering the various defences put forward and available to the Appellant held that the Defence of self-defence is not available to the Appellant.

2. The learned trial Judge’s entire decision is unreasonable, Unwarranted and cannot be supported having regard to the Evidence before the Honourable learned trial Judge.”

In compliance with the Rules of practice in this Court, an Appellant’s brief of argument was filed on the 1/12/09 in support of the appeal. There is no record that the Respondent had filed a brief of argument in the appeal. However in paragraph 4 of the affidavit in support of an application filed on 1/3/10 by the learned Appellant’s Counsel for the appeal to be heard on the Appellant’s brief of argument alone, it was averred that the Respondent was served with the Appellant’s brief on the 25/1/10. The Appellant’s application for the appeal to be heard on his brief alone was granted on 29/6/10 and the appeal accordingly set down for hearing on the 21/19/10.

On the 21/9/10 when the appeal came up for oral hearing in Court, A.R. Fatunde appeared for the Appellant. The affidavit of service of the Hearing Notice of the appeal on the Respondent indicated that the Hearing Notice was served on the Respondent through the Ministry of Justice, Kogi State.

The Respondent was not represented at the hearing and there was no communication from the Ministry of Justice to excuse the absence. For that reason, the Court proceeded with the hearing of the appeal pursuant to the combined provisions of Order 17, Rules 9(4) and 10 of the Court of Appeal Rules, 2007.

The learned Counsel for the Appellant then adopted the Appellant/s brief of argument as his submissions in support of the appeal and urged us to allow it and set aside the conviction of the Appellant. In the absence of the Respondent’s brief to answer or respondent to all the legal points canvassed in the issues submitted for determination in the Appellant’s brief of argument, the appeal remains or is left as an uncontested one. The consequence of that position is that the Respondent is deemed to have conceded to the appeal. See:-

JOHN HOLT VENTURES v. OPUTA (1996) 9 NWLR (470) 10; SALAU v. PARA-KOYI (2001) 13 NWLR (731) 602; AKPAN v. THE STATE (1992) 6 NWLR (248) 439. However even though the Respondent is in law deemed to have conceded to the appeal, that does not translate to an automatic success of the appeal, because the Court still owes the duty to consider and then determine whether the appeal is sustainable.

AKPAN v. STATE (supra); ECHERE v. EZIRIKE (200) ALL FWLR (323) 1597 at 1608; (2006) 12 NWLR (994) 386.

In the above premises, I intend to consider the submissions of the learned Counsel for the Appellant and then determine if the appeal is sustainable in law.

From the two (2) grounds of appeal set out above, the learned Counsel had distilled the following two (2) issues for determination by this Court:-

“1. Whether considering the facts and circumstances of this matter the accused was not entitled to be discharged and acquitted on the one count charge based on the defence of self-defence?

2. Whether having regard to the state of the evidence before the honourable learned trial Judge, the accused was not entitled to be discharged and acquitted on the one court charge?”

I would deal with the issues as formulated by the learned Counsel.