Ali Zaman V. The State (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A.(Delivering The Leading Judgment)

The appellant has appealed against his trial, conviction and sentence to death on 29th June, 2012 under Section 221(b) of the Penal Code by A.Y. Sanya, J., of the Borno State High Court of Justice holden at Maiduguri. The original Notice of Appeal filed on 4th September, 2012 contained three grounds.

Leave was subsequently granted the appellant to amend the Notice and Grounds of Appeal with a deeming order on 21st May, 2014. Appellant filed a brief of argument on 14th March, 2014 with a deeming order on 21st May, 2014. The respondent’s brief was filed on 17th June, 2014. Appellant filed a reply brief on 10th July, 2014. Learned Counsel adopted their respective briefs of argument on 4th March, 2015 when the appeal came up for hearing.

There was a wedding ceremony to which it is alleged the appellant and the deceased attended. The wedding is said to have according to the charge being held at Abaderi village in Damboa Local Government Area of Borno State on or about 29th February, 2008. During merrymaking, a fight ensued between the deceased and the appellant. The appellant stabbed the deceased to death hence his arraignment. The charge under which the appellant was arraigned is couched as follows:

“THE CHARGE: That you Ali Zaman ‘M’ of Chibok Local Government Area of Borno State on or about the 29th day of February, 2008 at about 2:00 hour at Abaderi village of Damboa Local Government Area of Borno State which is within the jurisdiction of this Honourable Court stabbed one Chari Ashiekh ‘M’ of Kombi village, Damboa Local Government with a knife on his chest and abdomen with the knowledge that death would be the probable consequence of your act and you thereby committed an offence punishable under Section 221(b) of the Penal Code Law.”

The prosecution called Pw1-Pw6 and relied on the extra-judicial statements of the appellant tendered through Pw1 (Exhibit “A1”-“A3”) and Pw6 (Exhibit “C1” and “C2”). The post-mortem report was put in and marked Exhibit “C” and the knife used in stabbing the deceased was admitted as Exhibit “D”. The appellant testified as Dw1 but called no witness.

The learned trial Judge convicted and sentenced the appellant to death.

The appellant distilled the following issues for determination to wit:

1. Whether the arraignment, trial, conviction and sentence of the appellant by the learned trial Judge was not a nullity due the fact that there was no evidence on the face of the record that the charge was read to him? (Grounds of Appeal No.5 of the Amended Notice refer).
2. Whether the trial, conviction and sentence of the appellant was not a nullity in view of the learned trial Judge’s earlier disqualification of himself from continuation of the trial, having been full seized of the facts of the case in his home town, thus having his mind biased already? (Ground of Appeal No.4 on the amended Notice refer).
3. Whether the learned trial Judge was right in his judgment not to have considered the defence of self defence put up by the appellant in Exhibit “A1”-“A3” and “C1”-“C2″? (Ground of Appeal No.6 of the amended Notice refer).
4. Whether the learned trial Judge was right in law to convict and sentence the appellant upon the Evidence adduced? (Ground of Appeal No.1, 2, and 3 of the amended Notice of Appeal refers).”

The respondent formulated the following issues for consideration:

“1. Whether having regard to the quality of evidence adduced by the prosecution before the Lower Court, the arraignment, trial, conviction and sentence of the appellant was a nullity? (Distilled from the amended Grounds of Appeal No.5).

2. Whether the attempt to disqualify himself to hear the case by the Court below, at a stage when the 5th prosecution witness testify half way and the Court’s subsequent request to re-assign the case to another Judge for trial, is subject to an approval by the Honourable Chief Judge of Borno State? (Distilled from the amended Grounds of Appeal No.4).
3. Whether having regards to the totality of the evidence adduced before the Lower Court, the appellant can be availed with the defence of self-defence? (Distilled from the amended Grounds of Appeal No.6).

?4. Whether the learned trial Judge was right in law when he convicted and sentenced the appellant to death by hanging upon the evidence adduced? (Distilled from the amended Grounds of Appeal No.1, 2 and 3).”

My humble opinion is that by the provisions of Order 18 Rule 3(4) and 4(1) and (2) of the Court of Appeal Rules, 2011, it is a party aggrieved by the decision of a Lower Court that usually appeals and settles in the brief of argument what he considers to be the issues arising from the judgment, taking into consideration the amended or additional grounds of appeal. The duty of the respondent is to answer all the material points raised by the appellant in his brief of argument. The course of doing so, the respondent will concede some points not in dispute, but show why the appeal should be dismissed.

Without a cross-appeal or a Respondent’s Notice, I do not appreciate respondents or their learned Counsel formulating distinct issues for determination. Respondents will do well if they merely adopt the issues formulated by the appellant for determination. This is to avoid a proliferation of issues for determination by the Appeal Court.

See Ononuju vs. State (2014) 8 NWLR (Pt.1409) 345 at 378 paragraphs “A”-“D”; Akinlagun vs. Oshobajo (2006) 12 NWLR (Pt.993) 60 at 80 paragraphs “D”-“E” and Atanda & Ors. vs. Akanji & Ors. (1989) 2 NSCC 511 at 537. I shall confine myself to the issues formulated for determination by the appellant’s learned Counsel. But before doing so, I shall set out in a nutshell the facts that led to the arraignment, trial and