The State V. Babawuro Usman (2004)

LawGlobal-Hub Lead Judgment Report

IFEYINWA CECILIA NZEAKO, J.C.A.

On the 24th of November, 1995, Oluoti, 1., sitting at the High Court of Justice,  Jalingo, Taraba State, delivered judgment in charge No. GGSJ/10c/90. The accused, the respondent in the main appeal herein, was  found guilty of the offence of culpable homicide pursuant to section 220(b) of the Penal Code punishable under section 224 of the  Code. He was sentenced to 11 years imprisonment. This was not the offence for which he was arraigned. The charge was for the  offence of culpable homicide punishable with death, under section 221(a) of the Penal Code. It related to the accused, causing the  death of his wife, Aminatu Babawuro. Dissatisfied with the judgment of the High Court, the State appealed to this court on four (4)  grounds.

The appellant, that is to say the State, filed its brief of argument on 28/10/96. It took the convict/respondent over six years before  taking any steps towards reacting to the appeal. He obtained leave of this court for extension of time to cross-appeal and to file his  brief of argument on 13/1/2003. His notice of cross-appeal and his cross-appellant’s brief were both filed on 10/2/2003.
In reaction to the cross-respondent’s brief of argument, the appellant/cross-respondent filed a cross-respondent’s brief on  17/4/2003.

When the appeal came up for hearing on 13/1/04, learned Counsel for the appellant, S. Haruna, Esq., Director of Public Prosecution,  (DPP) Taraba State, adopted his brief of argument. He urged this court to allow the appeal. He also adopted his cross-respondent’s  brief and urged the court to dismiss the cross-appeal.

For the respondent/cross-appellant, learned Counsel M. Igbokwe, Esq., adopted his brief of argument and the cross-appellant’s brief  filed on 12/4/2003. He also urged the court to examine paragraphs 5.3 and 5.4 of the cross-respondent’s brief of argument. He  submitted that the contents ought to move the court to allow the cross-appeal and dismiss the main appeal, as they portray an  agreement between the appellant’s and respondent’s submissions regarding miscarriage of justice caused the delay by the trial  court in delivering’ the judgment.

He submitted that the case of Chime v. Chime (2001) 1 SC (Pt.11) 1; (2001) 3 NWLR (Pt. 701) 527, relied on by the appellant’s  Counsel on the issue of jurisdiction is distinguishable and, he urged this court not to follow it. Learned Counsel sought and obtained  leave to cite an additional authority, the case of Emenamaya v. Okoroji (1987) 2 NWLR (Pt. 59) 6 at 15 SC, which should be applied.

Mr. Haruna replied that the miscarriage of justice complained of was not against the respondent and that the similarity in the  submissions of both parties must be viewed against that. In their briefs of argument, learned Counsel for the parties had identified  issues for determination. For the main appeal, the appellant’s two issues are distilled as follows:
(d) Whether or not, the learned trial Judge was justified in law, in holding that “intention to cause death” the mens rea for the offence  of culpable homicide with death under section 221(a) of the Penal Code had not been proved by the prosecution beyond reasonable  doubt to ground a conviction of the accused under the said charge as laid. (From grounds 1 and 4).
(e) Whether or not, the trial court was correct in law, to have veered-off course and to act on speculations and possibilities, rather  than on the concrete evidence before it in arriving at the conclusion as it did that the accused was not guilty of the offence charged,  but guilty of culpable homicide under section 220(b) of the Penal Code punishable under section 224 of the Penal Code, when it  found that none of the exceptions under section 222 of the Penal Code applied. (From grounds 2 and 3).

For the respondent/cross-appellant, the following 2 issues were distilled from the 4 grounds of appeal and the cross-appeal:
1. From the main appeal:-
Did the prosecution prove its case against the accused/respondent, beyond all reasonable doubt to ground a conviction under  section 221(a) of the Penal Code?
2. From the cross-appeal:-
Was the proceedings in this case and the judgment entered therein a nullity?

The appellant/cross-respondent viz the State, which filed its cross-respondent’s brief of argument on 17/4/03 had also identified two  issues from the cross-appeal, thus:-
A. Whether or not, the entire proceedings in this case and the judgment entered on 24th October, 1995, convicting the  cross-appellant was a nullity. (From ground 1 of the cross-appeal).

B. Whether or not, the failure of the learned trial Judge to comply with the provisions of section 258(1) of the 1979 Constitution,  occasioned any miscarriage of justice against the cross-appellant thereby, rendering the entire proceedings a nullity. (From ground 2  of the cross-appeal).
Before taking up the issues, let me recount some of the facts relevant to this matter.

The respondent/cross-appellant, the accused in the court below, was charged under section 221(a) of the Penal Code with the  offence of culpable homicide punishable with death for killing his wife, Aminatu, sometime in 1990, in Jalingo, within Jalingo Judicial  Division. Jalingo, was then in Gongola State. It is now in Taraba State of Nigeria, being its capital. The prosecution called 6  witnesses who testified at the trial. Among the witnesses, PW1, Abubakar Bakari who was the houseboy of the accused, gave  uncontradicted evidence of what transpired. He testified that on a Saturday night, in the month of May, 1990, he heard Aminatu  Babawuro, the wife of the accused crying. The crying later stopped.

The accused later called him, PW1. When he came into the  parlour of the accused’s house, in response, he saw the dead body of Aminatu, the accused’s wife lying there in a pool of blood. The  accused asked him to help him carry the corpse into a grave. The grave already dug was in the compound of the accused. This, he  did. The accused warned him not to tell any one that he had killed his wife and that if he did, whatever happened to him, he would  have himself to blame. He should tell anyone who enquired after his wife that she had gone to the hospital and had not returned.  PW1 further testified that on the 2nd of June, 1990, the accused went out of his house, leaving his little dog. The dog then went to the  grave, where the deceased was buried and started digging and before the accused returned, the dog had reached the hand of the  corpse. Then, the accused went to the Nigeria Police in Jalingo and reported and a policeman came back with him to the house and  looked at the grave. The police came back the next morning with other policemen to the accused’s compound and dug the grave and  found the body which the accused said was that of his wife, Aminatu.
Thereupon, PW1 was taken to the police station with the accused.

PW6, was a medical doctor, who performed a post-mortem examination of the body of the deceased, Aminatu after it was dug out.  This is another vital evidence. The corpse, found in the grave about 2 feet deep, was examined there. When it was taken out, it was in  an advanced state of decomposition. The skin was broken at one spot on the neck, there, being a straight wound, about 5cm deep  and 3cm long and on the right side of the neck. In the doctor’s opinion, death was caused by severe blood loss (hemorrhage) from  the injury on the neck which might have been caused by a sharp object. Other prosecution witnesses, PW2, 3, 4 and 5 also testified.

For the defence, the accused testified for himself and called no witness. His evidence was a denial of the charge. He said nothing  whatsoever about the evidence of PW1 or PW6. His testimony was to the effect that sometime in May, 1990, he reported to the police,  the missing of his wife from home. He could not find her at home, where he left her in the morning, when he went to Dong. Although,  his house boy, PW1 had informed him that she left home saying she was going to get some medicine from the town, she had not  returned. He said he had reported this to her relations, but no one knew her whereabouts. Sometime in June, about 1/6/90, his  attention was drawn by a woman who was in his compound to some digging by his little dog. The dog had been digging out  something which was causing some stench from a spot in his compound. This he reported to the police and when three (3)  policemen came to investigate, what they dug out turned out to be his wife’s dead body.
Under cross-examination, regarding the testimony of PW1, the accused did not address the evidence.

He simply stated that he had a  problem with the witness some months before. Significantly, the accused, while testifying in court, admitted that he was present  while PW1 testified in court. He did not however, try to rebut the so damaging and detailed evidence proffered by that witness against  him.

Parties duly closed their case after their witnesses testified, but their counsel waived their right of final address to the trial court and  the court on 21/3/95 adjourned for judgment to 11/5/95. Judgment was however, not delivered till 24/11/95.

I would adopt the appellant’s issues for determination in the main appeal. It derives from the grounds of appeal. See Labiyi v.  Anretiola (1992) 8 NWLR (Pt. 258) 139, Modupe v. State (1988) 4 NWLR (Pt. 87) 130, Oshoboja v. Amuda (1992) 6 NWLR (Pt.250)  690, Aseimo v. Abraham (2001) 16 NWLR (Pt. 738) 20 at 31.

On the other hand, the respondent’s lone issue does not derive from any of the grounds of appeal, nor even from his cross-appeal.  His lone issue in the main appeal, issue No.1, simply adopted a general system of attack on the whole judgment of the court below  and argued in his brief of argument that the prosecution did not prove its case against the accused/respondent beyond all  reasonable doubt to ground a conviction under section 221(a) or 224 of the Penal Code. The crux of his brief is that the respondent  urged this court to set aside the conviction, as there was complete failure by the prosecution to prove its case. This is not consistent  with the appellant’s grounds of appeal.

The appellant’s grounds of appeal without their particulars are set out hereunder –
“Grounds of appeal
(i) The learned trial Judge erred in law, in holding thus, “if the evidence that the accused had dug the grave prior to the killing of his  wife is believed, one could have inferred that the accused had the intention to cause death of his wife. But I do not believe the PW1,  that accused had dug the grave, before he apparently stabbed his wife … and this occasioned a miscarriage of justice.
(ii) The learned trial Judge erred in law, in convicting and sentencing the accused person under section 220(b) of the Penal Code  punishable under section 224 of the Penal Code, when he held that none of the sub-sections of section 222 of the Penal Code  applied.
(iii) The learned trial Judge misdirected himself in law, in holding that “next for consideration is this – Did the accused know or had  reason to know that death would be a “probable” and not only the ‘likely’ consequence of his act or any bodily injury, which his act was  intended to cause and this occasioned a miscarriage of justice?
(iv) The learned trial Judge erred in law, in holding that intention to cause death under section 221(a) of the Penal Code had not been  proved by the prosecution and this occasioned a miscarriage of justice.”

An issue must be distilled from a ground or grounds of appeal, and where it is not, it becomes a non-issue. For issues derive their  source from grounds of appeal. A respondent must frame his issues for determination from the appellant’s grounds of appeal. He  cannot frame issues not based on any ground of appeal, unless, there is a cross-appeal or respondent’s notice from which such  issues derive their source. See Oshoboja v. Amusa (supra) at 701, para. H. Issues for determination and arguments which suffer the  vice pointed out concerning the respondent’s issue herein ought to be discountenanced, being incompetent. See Modupe v. State  (supra) Labiyi’s case and Aseimo v. Abraham (supra), Asinupebi v. Saibu (1982) 7 SC 101, Elf (Nig.) Ltd. v. Sillo (1994) 6 NWLR (Pt.  350) 258 SC; NNS.C. v. Agricor Incorp. (1994) 3 NWLR (Pt. 332) 329 CA.

It must be pointed out also that the exception in Oshoboja v. Amuda (supra) does not avail the respondent. For not even in his  cross-appeal, did he constitute any ground of appeal from which his lone issue as to whether the prosecution proved its case  beyond all reasonable doubt, and which he argued at length in the main appeal could have been distilled.
This is clearly manifested from the respondent’s two grounds of cross-appeal set out hereunder:
Ground 1: “The entire proceeding is a nullity, illegal, null and void since the judgment was given without jurisdiction.”

Particulars:
1 . The trial Judge was no longer a member of the Taraba State Judiciary at the time of delivering the judgment.
2. As at the time of judgment, the trial Judge was functus officio and has no legal authority to further adjudicate on the matter in view  of the fact that he was no longer in charge of the Jalingo High Court, Taraba State, having been moved to Adamawa State.

Ground 2: The judgment is a nullity for violating section 258(1) of the 1979 Constitution having been delivered outside the statutory  period allowed by the Constitution of the Federal Republic of Nigeria, 1979.

Particulars:
1. Hearing in the case was concluded on 21st March, 1995, and judgment delivered on 24th November, 1995.
2. The court is obliged by section 258(1) of the 1979 Constitution to deliver its judgment within 3 months from the date of closing  hearing.”

The foregoing notwithstanding, I have decided, in the interest of justice that, rather than totally discountenance the respondent’s  issue No.1 relating to the main appeal and automatically his brief of argument thereon, to salvage and consider that part of his brief  of argument, which seem to touch on and are relevant to the matter in issue in the main appeal. Such is the part of the brief dealing  with proof of intention to cause death. This is all to ensure substantial justice, particularly, in a matter which touches on the life of a  citizen.

The issues for determination in the main appeal will now be addressed.

Issue A of the appellant questions the learned trial Judge’s justification in holding that the intention to cause death had not been  proved by the prosecution beyond reasonable doubt to ground a conviction for the offence of culpable homicide punishable with  death as charged. I will consider this with issue 1 of the respondent in the main appeal, which raised the question whether the  prosecution proved its case beyond all reasonable doubt to ground a conviction under section 221(a) of the Penal Code.

For the appellant, the following submission was proffered:- That the learned trial Judge erred in law, when he held that the  prosecution had not proved the intention to kill, the mens rea for the offence of culpable homicide punishable with death under  section 221(a) of the Penal Code to convict the respondent as charged. That the prosecution discharged the burden of proof on it to  prove the guilt of the respondent beyond reasonable doubt, having adduced credible, cogent and convincing evidence. Reviewing the  evidence of PW1, learned Counsel described it as unchallenged and uncontroverted, concluding that he set it out in extenso in order  to show that there was ample evidence to ground a conviction as charged.

Learned Counsel pointed out that the accused did not  rebut the damaging evidence of PW1 that he had dug the grave prior to asking  him to help him carry the corpse to bury, nor did he  say anything concerning the grave in his compound in his statement under caution – exhs. A and A1, or in his testimony in court. The  learned D.P.P. argued that in the face of this, the trial court ought not to have reasoned or indeed gone into speculations as he did  when he held that, “if the evidence that the accused had dug a grave prior to the killing of his wife, one could have inferred that the  accused had the intention to cause the death of his wife, but I did not believe PW1 that accused had dug the grave before he  apparently stabbed his wife”.

He submitted that it was for the accused to rebut the damaging evidence of the prosecution but he did not do so. Counsel cited the  case of lkuomola v. Oniwaya (1990) 4 NWLR (Pt. 146) 617 at 624, showing that where evidence in support of an issue is not  challenged in cross-examination, it is not right to disbelieve such evidence without sufficient reason for so doing. In this case, PW1  testified that the accused killed his wife. He was not challenged.

The learned D.P.P. argued that the trial court proffered no reason to disbelieve the forceful evidence of PW1 the witness, who saw the  body of the deceased with blood on the floor in the respondent’s parlour, when the respondent called him and asked him to help him  carry the corpse to the grave already dug, and which he did and this damaging evidence was not rebutted. Indeed, the accused said  nothing about that or the grave in his compound.

The learned D.P.P. also reviewed the evidence of PW6, the medical doctor who carried out the post-mortem examination on the  exhumed body of the wife of the accused-respondent, who found a serious wound on the right side of the neck and that death was  caused by severe blood loss from that injury which might have been caused by a sharp object. He submitted that there was enough  strong circumstantial evidence before the learned trial Judge to infer that the accused had the intention of killing his wife. This he  itemised.

He cited, The State v. Ironsi (1969) 1 NMLR 20 to show that even though the sharp object was not found, but that it is not in every case  that direct evidence is available to prove a criminal charge. Counsel argued that having found that the accused inflicted the injury  resulting in her death, that the mitigating circumstances provided by law in section 222 of the Penal Code did not apply, rejected the  defence of alibi, and, having found that the accused said nothing about the grave in his compound; that, the accused knew his wife  was not missing, when he reported that to the police, and concluded that the defence was “bogus” the evidence led by the  prosecution was positive and pointed irresistably to the complicity and culpability of the accused, the accused should have been  found guilty as charged.

Learned Counsel relied on the case of The State v. Patrick Njovens (1973) NNLR 93 at 95 and Ikemson v.  The State (1989) 3 NWLR (Pt. 110) 455; (1989) 6 SCNJ 54 at 66, in support of the proposition that the prosecution having adduced  sufficient and accepted evidence to fix the accused at the scene of the crime at the material time of the commission of the offence,  the alibi is logically demolished and the evidence of PW1 and PW6 dislodged same.

In these circumstances, counsel concluded, the learned trial Judge was in grave error after he critically examined positive and cogent  evidence of the accused’s complicity when he disbelieved PW1 on the issue of the grave and thereby arrived at the wrong conclusion  that the prosecution had not proved the mens rea to ground the conviction of the accused as charged. He then urged that the Court of  Appeal is in as good a position as the trial court to draw proper inferences from the facts proved – Akpabio v. The State (1994) 7  NWLR (Pt. 357) 635; (1994) 7-8 SCNJ 429, Woluchem v. Gudi (1981) 5 SC 219 cited. The cause of death was obvious, counsel  added.

The irresistible presumption in the circumstances of this case, counsel concluded, is that the accused, killed her deliberately, being  alone with her in the house and her death can only be explained by him.

For the respondent, his learned Counsel had pointed out that to succeed in a charge of culpable homicide not punishable with  death, the following must be established:
(i) the death of the deceased occurred as a result of the accused’s voluntary act
(ii) the accused had the intention of killing the deceased; and
(iii) the death of the deceased or victim was caused as a result of the accused’s act.
He cited-Igago v. State (1999) 14 NWLR (Pt. 637) 1 at 20, 23-4
Okeke v. State (1999) 2 NWLR (Pt. 590) 246 at 273
Akinyemi v. State (1999) 6 NWLR (Pt. 607) 449 at 464.
I must break off here to state that I agree with counsel on the foregoing.

The burden of proof, he further pointed out is always on the prosecution in criminal cases to prove the guilt of the accused beyond  reasonable doubt, only discharged by adducing credible, cogent and convincing evidence – Okeke v. State (1999) 2 NWLR (Pt. 590)  246, Akinyemi v. State (supra) Ahmed v. State (1999) 7 NWLR (Pt. 612) 641 at 673-4.

Counsel argued that, of the six prosecution witnesses, only PW1 testified to facts relating to the death of the deceased and there was  nothing to show that the death was caused by the accused, that proof that he killed the deceased must be strictly beyond reasonable  doubt, not conjecture. Ahmed v. State (supra) at 372-4, Nasiru v. The State (1999) 2 NWLR (Pt. 589) 87 at 98 & 102, Ifejirika v. State  (1999) 3 NWLR (Pt. 593) 59 at 74-81, Aigbadion v. State (1999) 1 NWLR (Pt. 586) 284 at 300.

Learned Counsel submitted, after referring to the evidence of PW6, the medical doctor who performed the post-mortem examination  on the deceased, that there was complete failure by the prosecution to prove its case beyond reasonable doubt. No weapon was  tendered, nor was the report of the doctor’s finding. In counsel’s view, the conviction must be set aside. He cited in support, the  following cases:
Akinyemi v. State (supra), Onuchukwu v. State (1998) 4 NWLR (Pt. 547) 576 at 592, Haruna v. C.O.P (1998) 7 NWLR (Pt. 557) 215 at  22, paras. D – E.

As to the finding of the learned trial Judge before convicting the respondent, to the effect that the accused must have known that the  blow or the stab was likely to cause death (see page 50 lines 11 of the records) it was submitted that this finding was not supported  by any evidence, and such a finding cannot be allowed to stand citing:-
Ajoke v. Bello (1992) 1 NWLR (Pt. 218) 380 at 402
Okeke v. State (1999) 2 NWLR (Pt. 590) 246 at 259.

It was further submitted that there was no evidence in the entire proceeding that the accused person stabbed the deceased, for, the  principal prosecution witness (PW1) only stated that he saw the deceased lying in her blood, and not what happened to the  deceased. Secondly, even if the evidence of PW6 (Medical Officer) that the deceased was stabbed is to be believed learned Counsel  questioned how this renders the accused liable for that. It was counsel’s further argument and submission that PW1 was not an  eye-witness to the alleged crime, that his evidence was at best circumstantial evidence and that for circumstantial evidence to  support a conviction, it must lead to one conclusion to the effect that an offence had been committed and that it was committed by the  accused person. Okeke v. State (supra) at 256, Adepetu v. State (1998) 9 NWLR (Pt. 565) 185 at 215 (C-E), Lori v. State (1980) 8-11  SC 81 relied upon.

Learned Counsel expressed the view that because of the trial Judge’s consideration of the fact that it was only the accused person,  who was in the house alone, he concluded that the accused person was the killer, and that he was also gravely influenced by the  unsubstantiated evidence of PW1.
There was no evidence on record to support the finding that it was only the accused, who was in the house. He stated that PW1 was  also in the house that night, and then submitted that the finding was baseless and against the evidence on record and this court  ought not to allow it to stand, and since this was the only discernible reason for the learned trial Judge’s conclusion that the accused  had something to do with the death of the deceased that finding also could not stand.

Counsel referred to the trial court’s finding at page 47 lines 31-36 as follows:-
“If the evidence that the accused had dug a grave prior to the killing is believed one could have inferred that the accused had the  intention to cause death of his wife. But I do not believe PW1 that accused had dug a grave before he apparently stabbed his wife.  Why did the PW1 not raise an alarm when he found that the accused had dug a grave?” and also, at page 47 lines 6-7 where the trial  Judge said “I do not find that accused had intention to kill his wife”.

He concluded that, there was no evidence linking the accused with the cause of the death of the deceased, and no proof by the  prosecution that the accused had the intention of killing the deceased or that he actually killed her, that no prosecution witness said  that he saw the accused with any knife or any other instrument before, during or after the incident and no such object was tendered in  evidence and that the totality of the evidence against the accused is to the effect that he was present when PW1 saw the deceased’s  body. He submitted that mere presence at the scene of a crime is not enough to prove guilt. He relied on Azumah v. R (1950) 13  WACA 87.

On appellant’s argument in his brief at page 15 paragraph 5.02 that: the accused offered no explanation on how the deceased met  her death in his oral evidence before the court, and said nothing about the grave which PW1 testified that he dug prior to the killing,  learned Counsel for the respondent, submitted that that was an attempt to shift the burden of proof on an accused person, contrary to  section 138 of the Evidence Act, Cap. 112, LFN, 1990 and Ahmed v. State (1998) 5 NWLR (Pt.550) 493 at 503 (G), that there is no  statutory duty on an accused person to prove the existence or non-existence of any fact alleged by the prosecution. It is the duty of the  prosecution to prove his case beyond all reasonable doubt and the duty cannot be shifted on the accused, he further submitted,  relying on Ibeh v. State (1997) 1 NWLR (Pt. 484) 632 at 649, 667. He argued that this was an attempt at circumscribing the  constitutional rights of the accused under section 33(5) and (11) of the 1979 Constitution Nasiru v. State (1999) (supra) at 102(G) &  106 (B-D).

To secure a conviction in a charge of murder or culpable homicide, a long line of legal authorities show that the prosecution must  proved beyond reasonable doubt that:
(1) the deceased had died
(2) his death was caused by the accused; and
(3) the act of the accused, who caused the death was intentional, having knowledge that death or grievous bodily harm was the  probable consequences of the act. See Ogba v. The State (1992) 2 NWLR (Pt. 222) 164; Gira v. The State (1996) 4 NWLR (Pt. 443)  375; Nwaeze v. The State (1996) 2 NWLR (Pt. 428) 1; Ubani v. The State (2003) 18 NWLR (Pt. 851) 224 etc.

I must state that learned Counsel for the respondent quite rightly set out the applicable principles and authorities in his brief. The  question however is, to what extent do they apply to this case. Section 220(a) of the Penal Code the offence of culpable homicide  punishable with death for which the accused was arraigned, is committed by a person who causes death by “doing an act with the  intention of causing death or such bodily injury as is likely to cause death”.

What the prosecution must prove can be clearly discerned from the words of the provision per se –
(1) the act by which death was caused was done by the accused;
(2) the act was done by the accused with the intention of causing death.
It is the same as in murder charges generally and these are the ingredients which the prosecution has the onus under the law to  prove.

It is indeed trite law that in criminal cases, the prosecution must prove the guilt of the accused beyond reasonable doubt. See section  138(1) and (2) of the Evidence Act, Adamu v. State (1991) 4 NWLR (Pt. 187) 530; Ayub Khan v. State (1991) 2 NWLR (Pt. 172) 127;  Okeke v. State (1999) 2 NWLR (Pt. 590) 246.

The prosecution, in discharging this onus on it, is bound to adduce, not only cogent but credible evidence.

Evidence which could  ground a conviction could be direct or circumstantial. What is crucial is that circumstantial evidence to be relied upon must be so  cogent and compelling as to lead to only one conclusion, viz to the guilt of the accused. See Onah v. State (1985) 3 NWLR (Pt. 12)  236; (1985) 12 SC at 61 – 62, Idighi v. State (1976) 11 SC 31, Ukora v. State (1977) 4 SC 167; Igboji Abeke v. State (1975) 9-11 SC 97;  Onah v. State (supra) is one typical example where it was rightly found that the cumulative value of the circumstantial evidence leaves  one in no doubt as to the guilt of the accused. Said Sir Danley Alexander, CJN (as he then was), in Igboji Abeke v. State (supra)  “Circumstantial evidence should be cogent and compelling as to convince the jury that on no rational basis other than murder can  the facts be accounted for. R v. Onufrejczyk 30 CR App. R1.”

Obaseki, JSC, put it in another way in Onah v. State (supra) at page 63 “Where circumstantial evidence is overwhelming and leads to  no other conclusion than the guilt of the accused, it leaves no room for acquittal”. See also Buba v. State (1994) 7-8 SCNJ 472 at 478  per Belgore, JSC. The courts of law in performing their duty of administering justice are often enjoined to critically examine evidence  adduced before them, in order to protect innocent citizens from being punished or on the other hand to ensure that the guilty is not  set free.

Sometimes, in propagating those basic principles of our criminal jurisprudence relating to the onus of proof and proof beyond  reasonable doubt which are ascribed to the prosecution, parties fail to appreciate that there are circumstances when the onus of  proof may shift to the accused. The courts will continue to affirm those principles that the burden of proof is always on the  prosecution, but the defence must also know that that burden may shift to the accused. A typical example is where the accused may  be required to make some explanation of some facts. See Adeniji v. State (2001) 13 NWLR (Pt.730) 375 SC. Such is the case where  damaging facts have been established by the prosecution against the accused – Adeniji v. State (supra) at 398, per Katsina-Alu, JSC  and at p. 402, per Iguh, JSC. See also Emeka v. State (2001) 14 NWLR (Pt. 734) 666 at 680.

If therefore an accused person, who is misguided, basking in his rights from the principles that the onus of proof is always on the  prosecution, leaves unchallenged and uncontroverted, cogent, compelling and damning evidence placed before the court, the trial  court may have no option except to exercise its liberty to accept and treat the evidence as credible. See Okeke v. State (2001) 2 NWLR  (Pt.697) 397. The case of Odulaja v. Haddad (1973) 11 SC 357; (1973) 1 All NLR 171, Ifeanyichukwu Osondu and Co. Ltd. v. Akhigbe  (1999) 11 NWLR (Pt. 625) 1 at 19, though civil cases convey the principles in a plethora of cases that admissible evidence which  remains uncontroverted becomes part of what will lead to a decision and unless such evidence is palpably incredible, the court is  not only entitled, but has no reason to accept it.
The onus of proof beyond reasonable doubt stamped on the prosecution by law, has been examined by the courts. They have  determined the extent of the duty on the prosecution and held that the “doubt” must be such doubt as arisen from some evidence  before the court and not from the imagination and any conjecture or inference not supported by evidence. See Olalekan v. State  (2001) 18 NWLR (Pt. 746) 793 SC 822 para. G (Per Onu, JSC). See also Kalu v. The State (1988) 4 NWLR (Pt. 90) 503, Iortim v. State  (1997) 2 NWLR (Pt. 490) 711.
Parties are agreed on the applicable principle of burden of proof and proof beyond reasonable doubt placed on the prosecution, set  out above.
Of the six prosecution witnesses, the crucial evidence came from PW1, PW2 and PW6. The evidence of PW1 and PW6 will be set out  hereunder:
Here is what PW1 said in his testimony about the deceased:
“…when she came back about 9pm, my master started to talk to her and on the next Saturday … in the night, when I was sleeping I  heard the wife of my master, Aminatu Babawuro, crying. Later on the cry stopped then my master Babawuro called me. When I came  out I moved inside the parlour of his house. I saw the dead body of his wife, Aminatu Babawuro. The accused has already dug a  grave inside the yard, the accused asked me to help him carry the dead body of his said wife. I helped him in taking the said body  and put same inside the grave. He told me that I should not tell anybody that he had killed his wife. He said that if I told anyone,  whatever happened to me, I have myself to blame. He said to me that anybody who asked me about his wife I should tell him that  she had gone to the hospital and had not come back.
On the 2nd June, 1990, I was in Sabon Line, Jalingo, with the accused in his house. On that day there was one old woman, a relation  to the accused, who started to cook for him. About 6pm, accused left his dog and the dog went to the grave and started digging,  before accused came back home, the dog has reached the hand of a human being then Babawuro went to the Nigeria Police in  Jalingo and reported. A policeman came back with him and looked at the grave. The police went back. In the following morning more  policemen came to the accused’s house. The police dug the grave and found that the body was that of accused’s wife Aminatu…”
In cross-examination, he said:
“I saw blood in the parlour together with the body of the accused’s wife on that Saturday night. The accused did not tell the cause of  the death of the wife. The time interval the cry of the wife stopped and the time the accused called me would be about 30 (thirty)  minutes”.
PW1 is a form 4 student in Teachers College, Jalingo and the house boy of the respondent.
PW6 also testified thus:-
“I accompanied the police to the premises where I entered the premises (a private one) where I entered the premises. There was a  yard and a building therein. I was taken to a site of a corpse. I witnessed the examination of the body by the police, myself and an  assistant from the said General Hospital. The corpse was found about two (2) feet deep and the corpse was totally covered. I  examined the position of the body at the sites and when the body was brought out. The sex of the body was that of female. I  estimated the age of the deceased to be about 20 years. We could not weigh the body. She was naked. She was a fair complexioned  person with woven hair. No physical parts of the body were missing. I found uteral marks sign of pregnancy, which I estimated to be  about 16 (sixteen) weeks. The corpse was in an advanced stage of decomposition but was grossly intact. The skin was broken at  one spot on the neck. There was a lineal or straight wound which was about 5 (five) centimeters deep and 3cm of length. The edges  were of any pattern because of the advanced stage of decomposition. The position of the wound is on the right side of the neck. The  air ways were spared or untouched. There were great vessels which had injuries.
In my opinion the death was caused by severe blood loss (hemorrhage) from the said injury.”
Cause of death was unequivocally established and the burden of proof on the prosecution was adequately discharged as required in  Rex v. Abengowe (1936) 3 WACA 85, R v. Olederima (1940) 6 WACA 202 and Lori v. The State (supra).
What other inference as to who caused the death of the deceased is there in the face of the evidence on record other than that the  appellant killed her? None, is the answer, when all the foregoing is placed against the evidence of the defence at the trial. The  testimony of the accused who elected to testify on his own behalf and called no other evidence goes thus:-
” … at 9.00am I was to go to one village market … in Numan Local Government … called Dong. I left my house boy at home, Abubakar  … I did not return till about 7.00pm that same day. I asked Abubakar where is my wife? He told me she has gone to the hospital … I  left home to check her at the General Hospital, Jalingo. On my way, I met one friend Tijani, a staff of that hospital. He too had looked  for the wife but no trace as he had earlier called on Abubakar above mentioned. We went back to the hospital to check for her. We  came back.”
“I did not see her and I came home and went to bed.
On the following day as I was sitting in front of my house I wanted to go to Mutum-Biu where her parents are. I saw her uncle and I  told him the position of things about the wife. The uncle asked me to hold on. He told me he too would check with relations. I  continued to check for her.”
“On the third day, the uncle mentioned above, said he had received no information about her whereabout. Then I reported at the  Police Station and the Radio Station all in Jalingo. I came home. I travelled to Jada and Mayo-Belwa to check for her as I learnt that  her relations are there.
After about 19 days, my small dog I had in the house, started to dig a certain point within the compound. A certain old woman, who  was looking after the house informed me about the activities of the dog and I reported to the police in the night. The police asked me  to come back the following morning (7.00). I reported there. Three policemen were assigned to go with me including an ASP. At my  house, the ASP asked me to take one of the policemen to their office which I did on my motorcycle.
At the Police Station, I was asked to make a statement which I did. The police asked me to sit somewhere, until the policeman I had  known there before came, who told me that what they found in my compound was the dead body of my wife. I was detained. Later,  6pm, a L.G. vehicle came to the police station and conveyed me to the C.I.D. office in Yola. I saw my house boy, Abubakar, in the  vehicle and we were taken to Yola. I told the Yola Police the same thing.
Before I left home for the market, my relationship with my wife was good. On my return from Dong market, I did not see my wife dead  or alive.”
In cross-examination, all the accused said was as follows:-
“I returned from the market at about 8pm. I saw my neighbour when I returned from the hospital. I was finding that my wife was  nowhere to be found, I was in court, when PW1 Abubakar testified in this court in respect of this matter. I had a problem with that  Abubakar about 2 to 3 months preceding the event I have narrated. My wife did not come back that night.”
The foregoing is all there is to the defence of the accused in the court below against whom PW1 gave such clear and damaging  testimony. Placed against the uncontroverted evidence of the prosecution witnesses, particularly PW1, PW2 and PW6, what inference  could any reasonable person draw?
The decision of the learned trial Judge that mens rea or intent to kill was not established which dictated his findings that the  accused/respondent was not guilty of culpable homicide punishable with death under section 221(a) of the Penal Code but guilty  under section 220(b) of the Penal Code does not appear to be borne out by substantial reasons and by applicable legal authorities.  Here is an accused whom the same court below itself had decided, was responsible for the death of his wife. This was for good  reason, as set out in his judgment. Both the testimony of PW1 and PW6 in my view provide sufficient and substantial reason for  identifying the intention to kill and the killing. The intention to kill is clearly manifest from the nature of the instrument, (“a sharp  object”) testified to by PW6, the medical doctor, and the wound inflicted on the neck (a most delicate part of the body), manifest from  the testimony of PW6, and by what followed when PW1 saw the deceased in a pool of her blood in circumstances from which it is  inferable that the respondent was responsible for it. PW6 found deep wound caused on her neck with a sharp object and that it was  the cause of her death. The accused was the one, as uncontroverted evidence of PW1 shows, who called PW1 into his parlour on the  fateful night, after the deceased’s cries which PW1 was hearing ceased, requesting him to help him carry her corpse into a grave  already in existence when he was called. PW1 helped him as requested. He was warned by the accused not to tell.
I hold the view that in this case, intent to kill has been adequately established, just as the killing was. Legal authorities abound which  show that intent to kill can be ascertained or inferred from the nature of instrument and the wound inflicted and circumstantial  evidence. Ehiot v. The State (1993) 4 NWLR (Pt. 290) 644 at 663 – 664 and 671.
The learned trial Judge himself had observed in his judgment thus:
“While there were “few discrepancies in the evidence of PW1 in respect of his seeing the dead body of the deceased in the  accused’s sitting room, I have no doubt that he told the truth. I also believe his evidence that he helped the accused in putting his  wife’s body inside the grave”.
The learned trial Judge in regard to the discrepancy only referred to the date of the incident testified to by PW1 and effectively  resolved. There was no other.
The evidence of PW1 is so crucial, so clear and so damaging to the accused remains unchallenged. The authorities which I earlier  referred to firmly establish that the court is bound to use it unless it is palpably incredible. I see nothing whatsoever incredible about  the evidence. I should add that it is not in my view not even incredible that the accused did absolutely nothing to challenge or rebut it –  the reason being that he could not and did not dare.
The inference is obvious. The learned trial Judge had no reason to disbelieve the evidence.
That there was an existing grave when PW1 arrived at the parlour of the accused to answer him when the accused called him, is not  in doubt from the evidence. The accused did not deny it. Why should the trial court help him to wriggle out? When the accused  himself did not try in his testimony and cross-examination to challenge and rebut the evidence. This clearly does not tally with the  function of a court of justice.
It is significant that a piece of evidence such as that concerning the grave in the compound of the accused into which accused was  said to have asked PW1 to help him to put the corpse of his wife did not move him to challenge it. PW1 said he had heard crying and  about 30 minutes after the crying ceased, he was called by the accused, to do that hair-raising chore of helping him to put the corpse  in the grave. The accused did not deny any of it or even mention any thing concerning it, either in exhs. A and A1, his cautioned  statement or in his evidence in court. The court below, on the authorities ought to accept and use the evidence and gave no legal  reason for not doing so. It was clearly in error therefore, when it decided that: if that evidence was believed, one would have inferred  that the accused had the intention to cause the death of his wife. Why not? That was the unchallenged evidence. He was in grave  error when he veeredoff course to state that he did not believe PW1 on the issue of the pre-existence of the grave “before he  apparently stabbed his wife”.
Let me add this. As it is clear from the evidence that the deceased died from bleeding from injuries on her neck caused with a sharp  instrument or object, it stands to reason that whoever caused the injury to so delicate a part of the body, the neck with such force that  death did occur must have intended the victim dead. For he must have intended the natural and probable consequences of his act.  He is guilty of homicide punishable with death. See R v. Nungu (1953) 14 WACA 379, R  v. Adi (1955) 15 WACA 6.
The foregoing is a presumption which is rebuttable or to be negatived by evidence only.
It is to be noted that proof of “intention” does not connote that a previous thought or determination to commit the offence must of  necessity be proved. Intention can be inferred. For the law presumes that a person intends the natural consequences of his act. In  determining whether the accused could be held to have known or had reason to know that death was the natural or probable  consequence of his action, the weapon, the amount of force applied and the part of the body affected are taken into account. The  State v. Abdulmumini Garba (1980) 1 NCR 358.
In this case before us, there can be no doubt that these matters when taken into account clearly reveal the intent to kill, manifest in  cutting the neck of this 20 year old pregnant girl. With the pool of blood in which the deceased was seen by PW1 and loss of blood  identified and sharp instrument, used highlighted by the doctor, PW6 as the caused of death, the amount of force applied is easily  identified. It is so much as caused instant death of the victim whose crying PW1 was hearing and about 30 minutes after the crying  stopped, he was invited by the accused to come and help him carry to a waiting grave in his enclosed compound, the body of the  deceased then lying in a pool of her own blood.
In summary, the intention to kill her or the mens rea of the killer is without doubt clearly proved, so also the cause and her death. One  thing I must state firmly is that the evidence before the court below and on record support and warrant a conviction under section  221(a) of the Penal Code.
There is no evidence to support the trial court’s finding. It is indeed, an error in law which calls for interference from this court. See  Rabiu v. The State (1980) 8-11 SC 130 at 172, Agbeyegbe v. I.G. Police (1955) 15 WACA 37.
The law is that if there was evidence before the trial Judge from which he could reasonably have come to the conclusion to which he  did, the verdict must stand. R v. Omisade (1964) NMLR 67 also in (1964) All NLR 233, R v. The State (1976) 11 SC 81.
If it is a verdict, which no reasonable jury could have come to, and I believe taking into account the evidence before the trial court, the  Court of Appeal may reverse it – see R v. Olagunju (1961) 1 SCNLR 32; (1961) All NLR 21. It is in my view the case, in this matter.
I see nothing obviously or even inherently improbable about the evidence of PW1, to warrant the speculation gone into by the trial  court. In taking it upon himself to raise points which could cause doubts as to the credibility of the witness and proceed to use them,  the trial court has only given cause for a miscarriage of justice fatal to the prosecution.
Although, it is not the function of the Court of Appeal to retry the case based on the record of proceedings before it, yet it has a duty not  to allow a verdict which is entirely unwarranted as herein to stand.
I will now deal with the issue of onus of proof shifting, raised by the respondent.
I am of the firm view that the onus had shifted to the accused, who ought to lead evidence to rebut so cogent, so compelling and  damaging an evidence from prosecution witnesses against him. See Adeniji v. State (supra), also Emeka v. State (supra) and other  authorities. He did not lead that evidence. All that he said that may be relevant in challenging the evidence was that he had some  problem with PW1, his house boy 2 – 3 months before the events.
He did not tell the court the problem or its nature. It must be known that where evidence led is true, the fact that the witness has or  might have a grudge does not weaken the validity of the evidence. In particular, evidence which is clear and unassailable, and  remains unrebutted as in this case, must, in my view, stand and the court is obliged to use it, notwithstanding that the witness is  shown to be a bitter enemy of the accused. See Oteki v. The State (1986) 4 SC 222 at 251.
Over with this error on the part of the trial court, other material evidence was tendered by the prosecution which the learned trial  Judge accepted which should earn the accused conviction as charged. After he carefully evaluated the testimonies of PW1 and PW6,  he made these findings:-
“I find that the accused caused the injury on the neck of the deceased, which injury caused her death.”
The accused did not appeal against this. It stands. On the issue raised for the respondent that the sharp object or instrument used  was not tendered, the short answer is that it is not always that failure to tender such an object is fatal to the case of the prosecution.  There is sufficient evidence in the testimony of PW1 and PW6 from which inferences can be drawn. See The state v. Ironsi (supra).
The learned trial Judge on this issue of knife or other weapon not produced, believed and accepted the evidence of PW6 and from  the evidence of PW1 that “the accused caused the injury to the neck which caused her death”.
With respect to the learned trial Judge, I believe he was merely equivocating, when he veered round inspite of his above set out  findings. One would ask how the court would not be certain that “death was the probable result of that stabbing”, when in the first  place, the victim was dead, PW6 the doctor said she died of loss of blood from the only stab wound on the right side of her neck  caused by a sharp object and PW1 saw her in a pool of her blood when the accused called him to help him bury her? Clearly, the  court can ascertain the cause of death from all the circumstances of the case. If he cannot, this court can, from the evidence on  record.
As earlier stated, on the authorities, circumstantial evidence can ground a charge of murder, since it is not in all cases direct  evidence is available. It is apt in this case. The findings must arise from both the direct evidence of the witnesses and circumstantial  evidence. It stands to reason to infer and conclude that the respondent caused the death of the wife with a sharp object when the  testimony of PW1, PW5 and PW6 are considered together. Here is a man, who invited PW1 his house boy in the night to help him  carry to a grave the corpse of his wife, whom about 30 minutes before, the house boy heard her crying stop. The boy immediately  saw the wife lying in a pool of her own blood in the respondent’s parlour. From the evidence, it is inferable that the grave was already  there, in his compound, where he lived with PW1 and the wife. The grave received the corpse, which the house boy, PW1, helped this  man the accused to carry and put into it. The grave was in his enclosed compound. It was this same respondent who told the police  after the body was exhumed from the same grave when he was asked, that it was the body of his wife. (See the evidence of PW5, the  police corporal).
In simple language and without mincing words, I see no other inference to be drawn from the sequence of events, the testimony of  the witnesses and the conduct of the respondent other than that drawn by the court, that he killed his wife, by causing injury to her  neck. He left her lying in the pool of blood, and the loss of blood from the injury on her neck caused her death.
It is significant that the over-whelming evidence of the witnesses, which he listened to in open court, was not contradicted at all. It  was never challenged by cross-examination. Where the facts accepted by the court calls for an explanation and none is forthcoming,  circumstantial evidence ought to be sufficient proof of guilt. See Igho v. The State (1978) 3 SC 87, Teteh Lawson v. The State (1975) 4  SC 115.
It is not the duty of the court to speculate on a possible defence for an accused person where there is no evidence before the court  suggesting such a defence. See Ojo v. The State (1972) 12 SC 147 at 150, Paul Oboh v. The State (1987) 1 NWLR (Pt. 47) 26, (1987)  1 SC 118 at 124 (per Karibi-Whyte, JSC).
If an accused has a defence, he is obliged to proffer it before the court. For the prosecution, its own duty is to prove its case beyond  reasonable doubt.
A case could turn on circumstantial evidence, where the circumstances point irresistably to the guilt of the accused – Ukora v. The  State (1977) SC 167, R v. Tepper (1952) AC 480, David Aganmwanyi v. A.-G., Bendel State (1987) 1 NWLR (Pt. 47) 26; (1987) 1 SC  77.
In this case, on the records there is such direct and strong, convincing circumstantial evidence which point irresistably to the  accused’s guilt. What was he doing with the corpse of his wife in a pool of her own blood in his own parlour, or her corpse buried in a  grave in his compound? PW1 testified to facts which undoubtedly pinned the accused to the injury on and death of his wife. What was  his reaction – None. Section 149 of the Evidence Act permits, the court to presume or draw inferences from facts which it thinks are  likely, bearing in mind the course of natural events etc.
The section provides thus:-
“The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of  natural events, human conduct, and public and private business, in relation to the facts of the particular case.”
The court below only drew such inferences as the law permits. The learned trial Judge stated that he believed that the accused  reported the matter of his wife missing to the police but posed the question, “but was the accused’s wife actually missing?” Then he  considered the evidence and conceded that she was not. He added,
“The accused testified, but said nothing about the grave in his compound. I have looked at the statement exh. A that he made to the  police, he said nothing about the grave. Could there be a grave in his compound and the accused would not notice it for two or three  weeks? Certainly, the accused knew that his wife was not missing.
I have considered the whole evidence and the accused’s defence of partial alibi and I conclude that that defence is bogus”.
It was his finding that the accused set up the defence to hide what took place in his house that fateful night as described vividly by  PW1. The trial court declared, “I reject the accused’s evidence that he knew nothing about the killing of his wife”.
On the evidence of PW1, he found that while there were a few discrepancies regarding his seeing the dead body of accused’s wife in  accused’s sitting room, he concluded thus:-
“I have no doubt in my mind, that he told the truth. I also believe his evidence that he helped the accused in putting his wife’s body  inside the grave”. The trial court also identified that although the accused said under cross-examination that he had a problem with  PW1, 2 or 3 months before the event, the nature was not disclosed. He concluded:”
I do not agree that there was any problem”.
On the nature of injury suffered by the deceased and who caused it, the court below accepted the evidence of PW6 and PW1. He  said, “I find that the accused caused the injury to the neck of the deceased, which injury caused her death”.
On whether culpable homicide was proved, the trial court set out the definition in section 220 of the Penal Code, identified the  ingredients of the offence, considered whether the accused caused the death, considering the testimony of PW1. He found that the  accused had something to do with the death of the wife. He called PW1 to come and he helped him to bury the deceased. Although,  PW1 did not witness the actual killing, the court decided that it was entitled “to draw such inferences from the evidence as appear  proper, taking into account the nature of the weapon used, the number of injuries and whether or not the blows were inflicted on vital  part of the body…”
It is my humble view that to the foregoing extent, the findings of the court below could not be assailed.
Let me say a few more words concerning other issues raised by the respondent in his brief.
On the respondent’s grouse that there is nothing to show that the death of the deceased was caused by the accused. The answer is  that there are the unchallenged, unrebutted evidence of the prosecution witnesses and the defence of the accused as weak as it was  and which in my view the learned trial Judge rightly described as “bogus”, considered together with all the surrounding  circumstances of the case, lead to no other conclusion than that the accused was the killer. The court below found so, and rightly too.
Although, I do agree with learned Counsel for the respondent and it is indeed, the law that proof that an accused is the killer in a  charge of homicide must never be left to conjecture or speculation, but must be proved beyond reasonable doubt, yet, I see no such  conjecture or speculation by the trial Judge in this matter as determined in Ahmed v. The State (1999) 7 NWLR (Pt. 612) 641, 672;  Nasiru v. The State (1999) 2 NWLR (Pt. 589) 87 at 98 and 102. In Ahmed v. The State (supra), the Supreme Court did find that the  conclusion of the trial court in that case which was affirmed by the Court of Appeal on what transpired in the compound where the  commission of the offence in question took place, was highly speculative.
That of course, cannot be said of the clear, unchallenged evidence of the prosecution witnesses, PW1 and PW6. I think that the  evidence is incapable of any other reasonable conclusion than that the respondent killed his wife. It cannot be described as being in  the realm of conjecture and speculation as argued for the respondent.
The learned trial Judge, rightly in my view made findings that the mitigating circumstances provided under section 222 of the Penal  Code did not avail the accused, that the story of the accused about his missing wife and alibi “is bogus” and rejected it. Death and  the cause of death were established and accepted by the court below.
Only this issue of mens rea raised by the court and the conviction of the accused for the offence as charged under section 221 (a) of  the Penal Code. I have said that mens rea can be inferred from the circumstances of this case. The evidence is cogent and  unrebutted leading to the firm belief that the accused caused the death of his wife intentionally. It seems to me that counsel for the  respondent in his submission was labouring under a misapprehension, when he submitted in the face of the other evidence that  assuming, but not conceding that PW1 actually saw the body in the parlour, does not show that her death was caused by the  accused.
That the prosecution might prove its case beyond reasonable doubt, does not mean beyond any shadow of doubt – See Oteki v. A.-G.,  Bendel State (1996) 2 NWLR (Pt. 24) 648. It is only when there are inconsistencies in the prosecution’s evidence such that it casts  reasonable doubt on the guilt of the accused that such an accused can be given the benefit of the doubt – see Onubogu v. Queen  (1974) 9 SC 1. Although, the respondent kept harping on the onus of proof beyond reasonable doubt, no such doubt has amply been  raised, and this, where the facts accepted by the court, supporting the case of the prosecution called for explanation from the  accused and none was forthcoming. See Peter Igho v. State (1978) 11 NSCC 166, per Eso, JSC. The submission for the respondent  that there was a complete failure on the part of the prosecution in proving his case beyond all reasonable doubt is therefore entirely  baseless and clearly misconceived.
This issue is determined in the light of the foregoing in favour of the appellant. The corresponding grounds of appeal, grounds 1 and  4 succeed.
Issue B of the appellant, arising from grounds 2 and 3 of the grounds of appeal complains that the learned trial Judge veered-off  course and acted on speculations and possibilities, rather than on concrete evidence before arriving at the conclusion that the  accused was not guilty of the offence of homicide punishable with death, charged under section 221(a) punishable with death, but  guilty of culpable homicide simpliciter under section 220(b), punishable under section 224 of the Penal Code, despite its finding that  none of the exceptions under section 222 of the Code applied to the accused. As earlier stated, the respondent did not raise any  issue on these two grounds of appeal. He did not adopt the appellant’s issues and made just general submissions in his brief of  argument. As earlier stated, I will salvage from his argument on issue No.1 those arguments which deal with the issues herein and  the points raised in the appellant’s submissions for the sake of justice.
The appellant’s counsel had argued as follows:-
That it is not the function of a court of law to speculate on possibilities not supported by evidence. Findings of fact and conclusion  should be based on evidence not on speculation and possibilities. Counsel then submitted that the learned trial Judge was not  correct in law, when he veered-off course evidence before him in drawing the conclusion that the accused was not guilty of the  offence charged but guilty of the offence under section 220(b) of the Penal Code. He misdirected himself in law. He was in breach of  section 208 of the Criminal Procedure Code.
The prosecution had proved the guilt of the accused beyond reasonable doubt to get him convicted on the charge as laid. Mens rea,  or the intention to kill was inferable from the overwhelming direct and circumstantial evidence from PW1 and PW6 which remained  unchallenged and uncontroverted.
The court itself had rightly rejected the defence of alibi and held that none of the exceptions under section 222 of the Penal Code  applied to the accused in mitigation of the penalty for the offence charged; the court ought to have found the accused guilty as  charged and sentenced him in accordance with the applicable law. Its not doing so occasioned a miscarriage of justice. Reliance is  placed on Akpabio v. State (1994) 7 NWLR (Pt. 357) 635; (1994) 7 – 8 SCNJ 429 at 464-465.
I believe that the learned trial Judge was only speculating and equivocating and not applying the evidence before him or the  applicable law when at pages 49-50 of the records he stated thus:
“Next for consideration is this, did the accused know or had reason to know that death would be a probable and not a likely  consequence of his act or any bodily injury which his act is intended to cause? What then must be decided is whether on the  evidence the accused knew or had reason to know that the blow he struck on the neck of the deceased was not only likely to cause  death, but probably to cause death …
If the act is known to the accused person as “likely” within the definition to cause death, he is guilty of culpable homicide not  punishable with death – see Penal Code, section 220(b). If death is known to the accused to be the probable result, the is guilty of  culpable homicide punishable with death, whether death is ‘likely’ or ‘probable’ is a question of degree … If a weapon is used the  question will generally resolve itself by a consideration of the weapon used, the part of the deceased’s body where it was struck and  the amount of force used”.
The learned trial Judge continued in what looks to me like some illogical and then logical “thinking aloud” –
“As I have observed earlier the weapon was not produced. The stab injury was on the neck and the amount of force used cannot be  determined. I have to decide that on the evidence I cannot be certain with the degree of certainty demanded by a criminal charge of  such seriousness that death was the probable result of that stabbing. On the other hand, that it was likely there can be no doubt at all  and in all the circumstances I cannot doubt that a man of accused’s intellect and background must have known it. The accused must  have known that the blow or the stab was likely to cause death”.
I must state that what findings the learned trial Judge made before and after the foregoing clearly manifest the illogicality of the  thinking and the error in the conclusions which he came to and which are indeed “non-sequitur”.
Before the above statement, the learned trial Judge had answered ‘yes’ to the question whether the accused had caused the death.  He relied on the evidence of PW1. He had found that the injury was on the neck, relying on the evidence of the doctor, PW6 and that  “the neck is an important part of the body”. After this, the learned trial Judge citing an Indian case, which to my mind could have  helped him steady his thoughts, veered-off into what did not follow from the decision in that case. In the case, it was held that when  death was caused instantaneously by a blow on the neck with a formidable weapon cutting through the windpipe etc, intention to  cause death was proved.
Rather than following up on his earlier findings and drawing the obvious inference from the testimony of PW1 and PW6 that the  Edeceased died instantaneously, he did not. Recall that PW1 heard the crying. Then about 30 minutes after the crying stopped the  accused called him to his parlour, where he saw the body of the wife in a pool of blood. The accused asked him to help him carry her  to a grave which he did. The accused warned him not to tell that he killed his wife otherwise whatever happened to him, he would  have himself to blame.
Recall also that PW6 the doctor testified that a deep wound caused by a sharp object … on the right side of her neck and loss of  blood therefrom caused her death. He also testified that:
“There were great vessels which had injuries … death was used by severe blood loss (hemorrhage) from the said injury”.
None of the evidence of PW1 or PW6 was denied, challenged or rebutted by the accused.
Yet, hear the reason why the trial Judge who heard evidence of the stab on the neck would not follow the Indian case to find the  intention to cause death – He said,
“In the case before me, death was caused instantaneously by a stabbing on the neck. The weapon whether formidable or not was  not produced. The windpipe, veins and the arteries were not reported by the medical officer”.
He then concluded thus:-
“In the circumstances of this case, I hold that intention to cause death has not been proved.”
I hold the view, that the learned trial Judge was in error in his view of the evidence – and application of the Indian case. That the injury  in the present case is on the neck, that the great vessels had injuries and that in the Indian case, there were injuries reported on the  windpipe, veins etc., or that the doctor PW6 in this case did not report on the wind pipe etc., ought not to make the difference, causing  the trial Judge to decide that intention to cause death was not proved as in the Indian case. I am of the firm view that intention to  cause death was proved, discernible from the evidence and all the circumstances of the case as previously and clearly shown under  issue A. It is reiterated with respect that the reasoning and finding of the learned trial Judge is illogically and not borne out by the  evidence before him. This is even more implicit in what I would refer to as the “equivocation” on pages 49-50 reproduced above. The  learned trial Judge then said he had considered the exceptions under section 222 of the Penal Code and held that none of them  applied. He ought thereafter to have found the charge in section 221(a) to which 222 forms exception definitely proved. One would  ask where and from what evidence or legal proposition then did he derive his conclusion not to “find the accused guilty of the offence  charged but guilty of culpable homicide under section 220(b) of the Penal Code punishable under section 224 of the Code.”
There is in my humble view, no evidence and no legal principles supporting his determination of the matter.
The law is settled that every Judge has a duty to direct himself correctly on every aspect of a case before him, having due regard to  the evidence adduced by witnesses who testified before him. A trial Judge would be said to have misdirected himself in law, should  he fail to do so and fail to avail himself of the right decision. See Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141 at 162 per  Nnaemeka-Agu, JSC.
Determination of cases is based on law and evidence, any determination based on sentiment, or speculation rather than evidence  and the law does not ever meet the legal criteria for justice and the ends of justice.A court must therefore not permit itself to speculate. See Aiguoreghian v. State (2004) 3 NWLR (Pt. 860) 367 at 407 SC (Per Uwaifo,  JSC), Oladele v. State (1993) 1 NWLR (Pt.269) 294, Ahmed v. State (2001) 18 NWLR (Pt. 746) 622.
Considering the provisions in sections 221 and 222 of the Penal Code, in relation to the evidence before the court below, a person  who causes such injury as the one testified to by the prosecution witnesses particularly PW6 in the circumstances described in  PW1’s evidence in court must be seen or deemed by any reasonable person to have had the intention to cause the death of this  young 20 year old, 16 month pregnant girl. And what about the grave, the waiting grave, into which the accused got her buried  instantly with the help of PW1 and the warning and threat not to tell?
Section 222 of the Penal Code sets out what constitute those defences which the law recognises as open to an accused charged  with homicide punishable with death under section 221 of the Penal Code.
I will set out both sections:
Section 221
“Except in the circumstances mentioned in section 222 culpable homicide shall be punished with death –
(a) If the act by which death is caused is done with the intention of causing death; or
(b) If the doer of the act knew or had reason to know that death would be the probable and not only likely consequences of the act or  of any bodily injury which the act was intended to cause”.
I should think that whether death was the probable or likely consequence of the act or of any bodily injury is a question of fact  derivable from the evidence before the court. In this case, the evidence of PW1 and PW6 provide adequately for this as will be shown  presently. Nothing came from the accused in rebuttal.
Section 222:
“222(1) Culpable homicide is not punishable with death, if the offender whilst deprived of the power of self control by grave and  sudden provocation causes the death of the person, who gave the provocation or causes the death of any other person by mistake or  accident.
(2) Culpable homicide is not punishable with death if the offender, in the exercise in good faith of the right of private defence of  person or property, exceeds the power given to him by law and causes the death of the person against whom, he is exercising such  right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such  defence.
(3) Culpable homicide is not punishable with death if the offender, being a public servant acting for the advancement of public justice  or being a person aiding a public servant so acting exceeds the powers given to him by law and causes death by doing an act, which  he in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant or for assisting such  public servant in the due discharge of such duty and without ill-will towards the person whose death is caused.
(4) Culpable homicide is not punishable with death, if it is committed without premeditation in a sudden fight in the heat of passion  upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.
(5) Culpable homicide is not punishable with death, when the person whose death is caused, being above the age of eighteen  years, suffers death or takes the risk of death with his own consent.
(6) Culpable homicide is not punishable with death, where a woman intentionally causes the death of her child being a child under  the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having  fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child.
(7) Culpable homicide is not punishable with death, when a person causes the death of another by doing any rash or negligent act.”
The learned trial Judge having determined that after his findings that these exceptions did not avail the accused, I see no other  provision of the law or evidence before the court to propel the court to the conclusions it reached.
It is also trite law that where the trial court has failed to appreciate, appraise and evaluate the evidence before it and as a result,  arrived at the wrong decision, that the Appeal Court may intervene, revisit the evidence and draw the appropriate inferences and  conclusions. See Woluchem v. Gudi (1981) 5 SC 291, also reported in (1991) NSCC 214, Balogun v.Agboola (1974) 1 All NLR (Pt. 2)  66, (1974) 10 SC 111.
In particular, if the issue on appeal is a question of inference to be drawn from established facts or evidence on record which does  not depend on credibility of witnesses and on their demeanour in he trial court, or that that court’s impression of them, the appellate  court usually would regard itself as in as good a position as the trial court to evaluate the evidence and to draw relevant inferences  from the proved facts on record. See Okafor v. Idigo III (1984) 1 SCNLR 481; (1984) 5 SC 1 at 36, Registered Trustees of Apostolic  Faith Mission v. James (1987) 3 NWLR (Pt. 61) 556 at 567, Nnorodim v. Ezeani (2001) 5 NWLR (Pt. 706) 203 at 210.
This is an appropriate case for this court to apply these principles.
We bear in mind always and in this matter that fundamentally, findings of fact and conclusions of the court should be based on  evidence adduced before the court, never on speculations.
It is upon the application of the foregoing principles and the law, that one must rely to come to a just decision in this matter.
The court below has powers under sections 217 and 218 of the Criminal Procedure Code, to convict the accused of a lesser offence,  than the one charged. See Ogu v. The Queen 1963, 2 SCNLR 74; (1963) 1 All NLR 234, where the Supreme Court substituted a  conviction for obtaining by false pretences with one for theft. See also Garba Zonkwa v. Police (1968) NMLR 11.Yet, it would appear to me that this power of substitution is not arbitrary but subject to certain principles expounded by the courts.
In order to lawfully substitute, the lesser offence must be a combination of some of several particulars of the offence charged and  together with the evidence establishing them, are such that they can be carved out of the offence charged with the relevant evidence  in place. See Queen v. Agumadu (1963) 1 SCNLR 379. In effect, if all the particulars of the offence charged have been present and  proved by the prosecution, then substitution of a lesser offence is not tenable.
The prosecution in the present matter had proved all the particulars of the offence charged as shown in this judgment.
There was therefore no basis for the substitution of the lesser offence.
Of further profound importance is the finding of the court below itself that after he considered the exceptions under section 222 of the  Penal Code, that none of the subsections applies. These are defences available to the accused, cognisant to the law in a charge of  culpable homicide punishable with death, such as the respondent was charged under section 220(a) of the Penal Code. An accused  person who is able to reap the benefit of any of the seven subsections of section 222 could, by law, be either discharged or have the  charge reduced to the lesser offence of homicide not punishable with death or manslaughter.
As the accused/respondent herein has not come into the foregoing privileges, and the higher offence for which he was charged has  been proved, he must reap the verdict and sentence assigned to the offence for which he was charged.
As far as one is concerned, the evidence against the accused is overwhelming, not challenged or controverted and clearly grounds  the charge. The doubt which the trial court purports to exist is purely conjured up by it without recourse to the law. The thought is  riddled with error. I have come to the conclusion that it cannot stand.
I would therefore, determine this issue in favour of the appellant and so grounds 2 and 3 of the grounds of appeal succeed.
The end result of this main appeal will await the decision of the cross-appeal which raises an issue that seeks to nullify the whole  proceedings and the judgment of the court below.
I will now consider the cross-appeal addressed by the cross-appellant in his issue No.2.
This complaint took its root from what the learned trial Judge stated in his judgment at page 40 lines 20-21 of the record of  proceedings, when he tried to explain his delay in delivering the judgment after parties closed their case. He said:
“The judgment was slightly delayed because of my transfer or deployment from Taraba to Adamawa.”
Background information relevant to this matter which is not in dispute, is that in 1991, one of the Nigerian States known as Gongola  State, was divided into two States, namely Taraba and Adamawa.
The charge, GGSJ/10c/90 against the cross-appellant had been brought and being tried by Oluoti, J., at the Jalingo Judicial Division  of the then Gongola State. Jalingo was the capital of Gongola State. It remained that of Taraba State after the creation of the new  state.
The learned trial Judge, Oluoti, J., was later, on a date not shown on the records and to which the parties herein have not drawn our  attention or referred to in their submissions, transferred to Adamawa State. He continued with the hearing of the matter and  concluded the hearing.
Final address was waived by counsel for the parties. As the records before us show, this was on 21/3/95, and on that date, judgment  was reserved for 11/5/95, but was later delivered on 24/11/95.
Learned Counsel for the cross-appellant has now raised two issues of law. Under the first which he titled “Territorial Jurisdiction”, he  argues that with the subsequent transfer of the learned trial Judge to Adamawa State, he ceased to have jurisdiction over the charge  in Taraba State, not then being a Judge of the High Court of Taraba State sitting in Jalingo. Citing Bello v. Usman (1999) 4 NWLR  (Pt.599) 389 at 389 and Onyema v. Oputa (1987) 3 NWLR (Pt. 60) 259, to show that where a court lacks jurisdiction in a matter,  subsequent proceedings no matter how ably conducted will be a nullity, counsel urged us to hold that the entire proceedings in the  court below is a nullity.
In reply, learned Counsel for the cross-respondent cited section 6 of the States (Creation and Transitional) Provisions Decree No. 41  of 1991, to show that the cross-appellant was in error in making the foregoing submissions. For he did not state the date of the  Judge’s deployment, and, by virtue of the Decree, the learned trial Judge had the territorial jurisdiction to continue with the  proceedings after his deployment to Adamawa State. He relied on the case of Augusta Chime & 4 Ors. v. Moses Chime & 4 Ors.  (2001) 3 NWLR (Pt. 701) 527; (2001) 1 SC (Pt. 11) 1 at 13 lines 5-30.
Counsel pointed out that no miscarriage of justice has been alleged by the cross-appellant. He urged this court to hold that section 6  of Decree 41 (supra) nullifies every adverse effect of the deployment of the learned trial Judge.
The issue in this appeal once more brings to the fore, one of the constitutional fall-outs and challenges from the ever-changing legal  and geographical status of the various components and constituents of this great nation of Nigeria. To meet these challenges, some  statutes have from time to time been put in place. One such statute is Decree 41 of 1991 (supra), cited by learned Counsel for the  cross-respondent. It was enacted to meet issues arising from the creation of states and applies throughout those States created  and/or affected. Section 6 of Decree 41, known as the States (Creation and Transitional) Provisions Decree, provides thus:
“Any proceedings pending before any court of a State immediately before the commencement of this Decree may after  commencement be continued before that court and shall not adversely be affected by the provisions of this Decree.”
The words of the foregoing provision are clear and unambiguous. The provision confers on a Judge or court in a State jurisdiction to  continue to hear any case pending before it immediately before the Decree came into force. From the facts of this case, there is no  doubt that the charge was pending before Oluoti, J., before Decree 41 came into force. He was vested with jurisdiction to continue  with the hearing of the matter.
The decision of the Supreme Court in Chime v. Chime (supra), also reported in (2001) 3 NWLR (Pt. 701) 527 particularly at 552 puts  this matter to rest, when it interpreted the application of section 6 of Decree 41 in circumstances similar to those in this matter. In that  case, a matter was pending in a court presided over by Ubaezuonu, J, then in old Anambra State with its capital in Enugu. From  Anambra State, two States, Enugu State and Anambra State were carved out also in 1991. The learned trial Judge, Ubaezuonu, J.,  (as he then was) deployed to new Anambra State (with the capital at Awka) proceeded to determine the suit which had been pending  before him before the creation of the new States. The question whether the court in new Anambra State could continue to entertain  the suit was answered in the positive by virtue of section 6 (supra).
This is what the Apex Court stated, (per Iguh, JSC) at p. 552:
“…Ubaezuonu, .J, as he then was, before whom the case was pending before the commencement of the relevant Decree was vested  with ample jurisdiction to continue with the hearing of the suit in his court after the commencement of the Decree. I entirely agree with  the submission of learned Counsel for the respondents, Chief Ugolo, that if it was intendment of section 5 of Decree No. 41 of 1991,  that pending cases shall be tried de novo by another Judge of Enugu State origin, the expression that the trial of such cases may,  after the commencement of the Decree, “be continued before that court and shall not be adversely affected by the provisions of this  Decree” should not have been used. This is because, the hearing of a part-heard case taken over by another Judge is not “continued  before the new Judge” but shall be started de novo by such new Judge in accordance with the basic principles of our law. It is my  view, therefore, that the hearing of the present suit which was pending before Ubaezuonu, J., as he then was, immediately before the  commencement of Decree No. 41 of 1991, may after such commencement be continued before that court, quite rightly, pursuant to  the provisions of section 6 of that Decree.”
Mr. Igbokwe, learned Counsel for the cross-appellant sought to distinguish this case from Chime v. Chime (supra). I find no such  distinguishing features relevant hereto.
In the light of the foregoing, it is the decision of this court that Oluoti, J, was vested with jurisdiction and the proceedings are not a  nullity.
The second arm of the cross-appellant’s submission on his lone issue relates to the date of the judgment vis-a-vis the conclusion of  hearing earlier pointed out. He titles this in his brief as “non- compliance” with section 258(1) of the 1979 Constitution.
Learned Counsel for the cross-appellant referred to the case of Ogundele v. Fasu (1999) 12 NWLR (Pt. 632) 662 at 676 and 689,  where it was decided that a judgment must be delivered not later than 3 months after conclusion of evidence and final addresses,  otherwise, the judgment must be treated as a nullity where the court is satisfied that the party complaining of non-compliance has  suffered, by reason thereof, a miscarriage of justice.
He added that from the record of proceedings, it was clear that hearing in the case and address were concluded on 21st March,  1995 and judgment delivered on 24th November, 1995, according to him over one year from the date parties closed their case. (Let  me stop here briefly to state that from 21/3/95 to 24/11/95 is 8 months, not over one year as stated for the cross-appellant).
Be that as it may, learned Counsel for the cross-appellant then submitted that the question which calls for an answer is whether the  accused person suffered miscarriage of justice by reason of the noncompliance with the law. In my view, this is the correct issue in  law. His submission on this is that the time lag between the conclusion of hearing and date of the judgment was too long, making  the trial Judge loose touch with the evidence before him and the demeanour of the witnesses while testifying. He pointed out on  page 50 line 11, 47 line 12, 47 line 34, page 48 line 9 findings leading to such miscarriage of justice. He then submitted that the  finding of the court that the accused stabbed the deceased without any evidence in support or any weapon tendered is a conjecture  of the court not based on any evidence, thus occasioning a miscarriage of justice.
The cross-respondent treated this matter in his issue B, distilled from ground 2 of the cross-appeal. His submission is that it must  be answered in the negative. In his view, the judgment delivered 8 months after final address did not occasion any miscarriage of  justice and was not a nullity and the cross-appellant ought to have been convicted under section 221(a) of the Penal Code as  charged. For, the evidence of PW1 the principal prosecution witness unequivocally pinned him to the scene of the crime and with the  murder, referring to page 17 lines 5-20 of the records.
Learned Counsel pointed out that that evidence remained unshaken and uncontradicted, under cross-examination, and that the  learned trial Judge’s findings show that he believed PW1 inspite of “a few discrepancies” in his evidence showing that he saw the  dead body of the wife in his sitting room and that he helped him to put it in the grave, and unequivocally, that the cross-appellant  killed his wife.
Learned Counsel argued that although the sharp object used was not tendered by the prosecution there was strong circumstantial  evidence to infer that the accused had the intention to kill his wife referring to Akinfe v. The State (1988) 3 NWLR (Pt. 85) 729, The  State v. Ironsi (1969) 1 NMLR 20. Counsel further submitted that there was sufficient evidence of the object used and the fact that it  was not tendered did not render the case of the prosecution unreliable – Nkuwem Miri v. The State (1968) All NLR 56 at 59-60.
Counsel contended that the learned trial Judge having believed the uncontroverted evidence of PW1 and PW6 as to who inflicted the  injury culminating in her death, he should have convicted him under section 220(a) of the Penal Code.
Significantly, counsel expressed the view that the 8 months delay in delivering the judgment caused the Judge to proceed on a  voyage of speculations culminating, in his conviction of the accused under section 220(b) even though the trial court had found that  the exceptions in section 222 did not apply and he had rejected the accused’s defence of alibi as a sham. The State v. Patrick  Njovens (1973) NMLR 93 at 95 and Ikemson v. The State (1989) 3 NWLR (Pt.110) 455; (1989) 6 SCNJ 54 at 66, were cited to support  the proposition that if the prosecution adduced sufficient and accepted evidence to fix the accused at the scene of the crime at the  material time of the commission of the offence, his alibi is logically and physically demolished.
Learned Counsel argued in conclusion that this occasioned a serious error in law and a miscarriage of justice against the  cross-respondent, not against the cross-appellant and where, by virtue of section 258(4) of the 1979 Constitution (as amended), no  miscarriage of justice is suffered by a party complaining of such non-compliance, the judgment cannot be set aside.
I have considered the submission of counsel for both parties, and noted that judgment was delivered on 24/11/95. Time begins to  run for the 3 months required under section 258(1) of the 1979 Constitution for delivery of judgment from the date the court adjourns  for judgment. See Igwe v. Kalu (2002) 5 NWLR (Pt. 761) 678. In this case, the court below adjourned for judgment on 21/3/95.  Judgment was given 8 months later instead of 3 months. That there was delay in the delivery of the judgment which is in breach of  section 258(1) of the 1979 Constitution as amended by the Constitution (Suspension and Modification) Act, 1990, is therefore without  doubt. What the effect is, is the matter in issue and would that nullify the judgment? Section 258(1) and (4) which are relevant in the  determination of this provides –
Section 258(1):”Every court established under this Constitution shall deliver its decision in writing not later than three months after the conclusion of  evidence and final addresses, and furnish all parties to the cause or matter determined with duly authenticated copies of the  decision on the date of the delivered thereof. Section 258(4):
“The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of  this section, unless the court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party  complaining of such non-compliance has suffered a miscarriage of justice by reason thereof.”
In the light of the provision in 258(4) above, the party complaining of non-compliance with section 258(1) is the cross-appellant  herein who made this a ground of his cross-appeal. It is now trite law that for a party to reap the benefit of section 258(4), that is for  the judgment complained of to be treated as a nullity, the appellate court has to be satisfied that the party complaining has suffered a  miscarriage of justice by reason of the delay in delivering the judgment. The burden is on that party to prove miscarriage of justice.  See Ogundele v. Fasu (1999) 12 NWLR (Pt. 632) 662 at 633, 676 & 689 SC. See also Walter v. Skyll (Nig.) Ltd. (2001) 3 NWLR (Pt.  701) 438, S.B.N. Ltd. v. S.I.O. Corporation (2001) 1 NWLR (Pt. 693) 194, Igwe v. Kalu (2002) 5 NWLR (Pt. 761) 678 SC; B.C.C. Plc. v.  Sky Insp. (Nig.) Ltd. (2002) 17 NWLR (Pt.795) 86.
The kind of miscarriage of justice required by law to be established by the party complaining in accordance with section 258(4)  (supra) is the type suffered by that party, by reason of the delay in the delivery of the judgment, by the trial court causing the Judge to  either forget or get mixed up with the evidence. It is not miscarriage of justice which may have arisen or occurred due to some  irregularities in the course of the proceedings. See Ogundele v. Fasu (1999) (supra) (per Ayoola, JSC).
As to the submission for the cross-appellant that the gap between the conclusion of hearing and date of judgment was too long,  making the trial Judge loose touch with the evidence and the demeanour of the witnesses, I hold the view that nothing has been  shown to establish this. The learned Counsel for the cross-appellant has only mounted a criticism on the findings of the learned trial  Judge, without showing how the time lag influenced the evidence enabling him to make the findings.
He referred to three excerpts in the judgment. There the trial court stated thus:
“(1) What inference may reasonably be drawn from the circumstances of this case? The court is entitled to draw such inferences  from the evidence as appear proper, taking into account the nature of the weapon used, the number of injuries …” (Page 47 line 12).
“(2) But I do not believe PW1 that accused had dug the grave before he apparently stabbed his wife.” (Page 47 line 12) but later went  on to state:
‘The nature of the weapon used cannot be considered in this case. No knife or other weapon was produced.”
“(3) The accused must have known that the blow or stab was likely to cause death” (Page 50 line 11).
I hold the view that these excerpts were taken out of con and that when all the evidence before the court below, shown on the  records are taken and considered together, there is nothing showing that the trial Judge lost touch with the evidence or the  demeanour of the witnesses or reveal miscarriage of justice to the cross-appellant.
It is not in every aspect in a criminal trial that direct evidence is available. Of necessity, inferences are often drawn. This is because of  the very nature and furtive behaviour of man when doing anything he knows to be wrong, particularly when committing an offence.  The courts know this and have over the years placed reliance on circumstantial evidence in appropriate cases to determine the guilt  or otherwise of persons charged with crimes, not less those charged with the offence of murder.
The Supreme Court in the case of Joseph Lori v. The State (1980) FNLR 475; (1980) 8 – 11 SC 81, had held that in murder cases  circumstantial evidence may sometimes be the best evidence. It is sometimes considered faultless. There is nothing derogatory  about circumstantial evidence. See Onah v. The State (1985) (supra) (per Obaseki, JSC).
I should think that this is understandable in view of the fact that in criminal matters, the action of an offender is hardly in the open and  he may only be pinned to the act by looking at surrounding circumstances and drawing sensible inferences. Once the circumstantial  evidence is cogent and compelling, leading to the irresistible conclusion that the accused is the one and no other who committed the  offence, it is sufficient to support a conviction. See Onah v. The State (supra), Obasi v. The State (1965) NMLR 119. R v. Tepper  (1952) AC 480 at 489, R v. Weaver & Anor. 21 Cr. App. R20 at 21.
As one reads through the evidence of PW1 and PW6 on record, there is not only a compelling but unequivocal feeling that the  cross-appellant was the one who murdered his wife. The evidence is cogent and compelling. Starting with PW6, the medical doctor,  his evidence established unequivocally the cause of death. The clear, unchallenged, unshaken, evidence of PW1 who heard her cry  and shortly afterwards saw the dead body in a pool of her blood that fateful night in the parlour of the cross-appellant into which he  was called by him and requested to help him carry her corpse to a grave already in existence at the time, and who warned him not to  tell that he had killed his wife, together with the PW6’s evidence is even most cogent and unequivocal.
Excerpts from the trial court’s decision set out hereunder in their con from pages 47 and 50 of the records which the  cross-appellant complains and took out of con, show no misconception of the evidence by the trial Judge due to the said delay.
On page 45 of the records, the learned trial Judge asked: “What was the nature of the injury the deceased suffered?
He set out the evidence of PW6 (supra). He then proceeded to reason, review and evaluate the evidence of PW1 and PW6 before  him. He said:-
“In this case, no knife or object of instrument was tendered. I believe and accept the evidence of the PW6 and find that the deceased  died from a neck injury. And who caused that neck injury? From the evidence of PW1 he heard the cry of the accused’s wife in the  room where only the accused was. The cry stopped later. PW1 under cross-examination said he saw blood in the parlour and on the  body of the accused’s wife. I find that the accused caused the injury to the neck of the deceased which injury caused her death.
Section 220 of the Penal Code reads:
“220. Whoever causes death;
(a) by doing an act with the intention of causing death or such bodily injury as is likely to cause death; or
(b) by doing an act with the knowledge that he is likely by such act to cause death; or
(c) by doing a rash or negligent act commits the offence of culpable homicide.”
That is the definition of culpable homicide. On a charge of culpable homicide the prosecution has to prove several elements or  ingredients of the offence. One is:
“that the death of a human being has actually taken place.”
In this case, there is abundant proof that the death of Aminatu Babawuro has taken place. PW1 saw the dead body of the deceased.  He knew her before her death. PW6, the Medical Officer, performed a post-mortem examination on the body of the deceased which  was identified to him by a member of deceased’s family one Umaru Manu.
The next element for the prosecution to prove is whether or not such death has been caused by the accused. Has the accused  anything to do with the death of the deceased? I think the answer is yes. PW1 testified that he was sleeping when he heard the wife  of the accused crying and later the cry seized (sic). He later found the dead body of the deceased in the parlour of the accused.
It was only the accused who was in the house. He helped the accused in burying the deceased. The PW1 did not witness the actual  killing, but the part he played goes to show that the accused had something to do with the death of the deceased. The third element  the prosecution has to prove is as follows:
“that the act was done with the intention of causing death, or that it was done with the intention of causing such bodily injury as;
(i) the accused knew or had reason to know that death would be the probable and not only the likely consequence of his act; or
(ii) that the accused knew or had reason to know that death would be the probable and not only the likely consequence of any bodily  injury which the act was intended to cause.”
What inference may reasonably be drawn from the circumstances of this case? The court is entitled to draw such inference from the  evidence as appear proper, taking into account the nature of the weapon used, the number of injuries and whether or not, the blows  were inflicted on a vital part of the body of the deceased.”
The learned trial Judge cannot be faulted in stating the foregoing. The learned trial Judge also set out a part of the evidence of PW1,  as he re-examined the evidence before him. Thereafter, he continued his appraisal. He said:
“If the evidence that the accused had dug a grave prior to the killing of his wife is believed one could have inferred that the accused  had the intention to cause death to his wife. But I do not believe the PW1 that accused had dug the grave before he apparently  stabbed his wife. Why did the PW1 not raise an alarm when he found that the accused had dug a grave. When was the grave dug?  There are several questions to ask about that grave coupled with my finding that the stabbing took place on a certain Sunday, but  PW1 informed this court that the wife of the accused died on one Saturday. I do not believe him that the accused had dug a grave  prior to his stabbing the deceased. I do not find that accused had an intention to kill his wife.”
I must stop here to identify and express that one can see some confused reasoning from this later part of the judgment. It does  portray a misperception not of the evidence but the law. This is where the learned trial Judge hinged his decision not to convict the  respondent. It is my firm view and I must with respect say so unequivocally that the learned trial Judge was in error as argued for the  appellant in the main appeal. What followed after the foregoing in the judgment, is however well articulated. The court said:
“The nature of the weapon used cannot be considered in this case. No knife or other weapon was produced. In respect of the  number of injuries PW6, the medical doctor, testified that the skin was broken at one point on the neck and there was lineal or  straight wound which was about 5 centimetres deep and 3 centimetres in length. The wound was on the right side of the neck. From  the evidence of the medical officer, there was only one point which had injury so the number of injuries could be said to be one. Was  the blow inflicted in a vital part of the body? The neck is an important part of the body.”
With respect to the learned trial Judge, I see some confused reasoning, which is not logical with his earlier findings, and later ones  in the following, which again relates to his appreciation of the law, not the evidence or relating to the demean our of witnesses.
At page 50, the learned trial Judge said:-
“As I have observed earlier the weapon was not produced. The stab injury was on the neck and the amount of force used cannot be  determined. I have to decide that on the evidence I cannot be certain with the degree of certainty demanded by a criminal charge of  such seriousness that death was the probable result of that stabbing. On the other hand, that it was likely there can be no doubt that  a man of accused’s intellect and background must have known it. The accused must have known that the blow or the stab was likely  to cause death.
I have considered the exceptions under section 222 of the Penal Code and I hold that none of the sub-sections applies.”
I am clearly of the view that the foregoing, considered against the evidence on record, shows no misperception or confusion  regarding the evidence or the demeanour of witnesses before the court.
There is the argument for the cross-appellant that there was complete failure to prove the case of the prosecution beyond  reasonable doubt and that the conviction must be set aside. This is the issue in the main appeal already addressed. Be that as it  may, I would not agree with this. The argument is clearly misconceived. Let me at this point further address the issue wherein  learned Counsel for the cross-appellant referred to the part of the judgment, where the learned trial Judge said he did not believe  PW1 that the accused dug the grave before he apparently stabbed his wife.
This is one element on which he based his claim that the learned trial Judge lost touch with the evidence before him due to the delay  in delivering his judgment after parties closed their case. I hold the firm view that the delay had no such effect. The court below was  simply in error, and it is one, in law.
With much respect to the learned trial Judge and learned Counsel, the evidence of PW1 regarding the grave has to be set out here  again and seen within its con, risking repetition. PW1 said,
” …When I was sleeping, I heard the wife of my master Aminatu Babawuro crying. Later on, the cry stopped then my master Babawuro  called me. When I came out, I moved into the parlour of his house. I saw the dead body of his wife Aminatu Babawuro. The accused  has (sic) already dug a grave inside the yard, the accused asked me to help him carry the dead body of his said wife. I helped him in  taking the said body and put same inside the grave …”
From the scenatio created by the foregoing, I do not think it is in any way far-fetched, to infer that the grave was in existence when the  accused called in PW1 to help him. Obviously, it was into an existing grave the accused with the help of PW1 carried the corpse of the  deceased at the request of the cross-appellant. The uncontradicted, and rather damaging testimony of PW1 concerning the time lag  between the events narrated in his evidence, and other pieces of evidence could only lead to that conclusion about the grave. The  learned trial Judge had not proffered justifiable reason to refuse to believe it. I must however firmly identify that the issue as to when  the grave was dug does not diminish from the conclusion as to how the deceased met her death and by whom, which the court  below clearly identified and believed from the evidence of PW1 and PW6. (See page 45 lines 20-25).
In refusing to believe the evidence regarding the pre-existence of the grave, the learned trial Judge has only created a lever to enable  the accused escape from a crime so heinous as the one charged. The finding is not supported by the evidence. It has not caused  miscarriage of justice to the accused as argued for the cross-appellant, but to the cross- respondent.
In the course of his oral argument at the hearing of this appeal, learned Counsel for the cross-appellant, Mr. Igbokwe had referred us  to the submission of the cross-respondent in paragraphs 5.3 and 5.4 of his brief of argument regarding the issue of delay in  delivering the judgment by the lower court. Counsel argued that this portrayed an agreement between the parties that the delay by the  trial court in delivering the judgment within the 3 month period required by the Constitution had caused a miscarriage of justice and  that this ought to move this court to allow the cross-appeal and dismiss the main appeal.
I hold the view that Mr. Haruna, learned D.P.P. of Taraba State’s reply to this submission of the cross-appellant is appropriate, when  he drew our attention to the fact the miscarriage of justice referred to by the appellant in his brief affected the State, i.e. the appellant.  It was not against the respondent/cross-appellant. What was the gist of learned Counsel’s argument in paragraph 5.3 of his brief  and also paragraph 5.4? It was simply that a trial Judge who believed the uncontroverted evidence of PW1 and PW6 as to who and  what caused the injury on the neck of the deceased leading to her death, ought to have convicted the accused under section 221 (a)  of the Penal Code as charged. He then added (what I consider an opinion), based on speculation which does not advance the case  in any way.
“Rather because of the 8 months delay in the delivering of the judgment, sympathy started setting in on the mind of the court  culminating in some legal gymnastics and subsequent conviction under section 220(6) …”
He did not say as the cross-appellant, that confusion arose as to the evidence as a result of the delay.
Learned Counsel then identified other findings of the court, the law and further evidence, expatiating on why the court below ought to  have convicted the accused as charged and concluded however that the delay, did not occasion any miscarriage of justice against  the cross-appellant.
I agree there was some “legal gymnastic” – for as earlier stated, it was an error in law committed by the court below which led to  miscarriage of justice, not against the cross-appellant, but against the appellant/cross-respondent.
The foregoing clearly, does not show that the cross-respondent’s counsel’s submission supports the cross-appellant to the effect  that the delay in delivering judgment caused the court to lose touch with the evidence before him and the demean our of witnesses  as claimed by his learned Counsel.
Let me summarise finally, the principles upon which the courts have built proceedings and judgments on the issue of delay in  delivering judgment after the conclusion of trial. It is helpful to use as a point of reference, the principles in Emenimaya v. Okoroji  (1987) 3 NWLR (Pt. 59) 6, which learned Counsel for the appellant/cross-respondent has persuaded us in his oral submission to  apply in this matter. Even if we apply it, it still does not help the cross-appellant unless he satisfies the condition laid down therein  and in section 258(4) of the 1979 Constitution. In the Emenimaya’s case, the Supreme Court held that section 258(1) of the 1979  Constitution which came into force on October 1, 1979 did not apply. For although the section was in force at the time of the appeal to  the Court of Appeal, it was not, at the time of the final addresses of the parties before the trial High Court on 2/11/78.
The Supreme Court, however considered the issue of delay which it thought indeed inordinate. Based on principles which had  evolved in the courts before the enactment of the 1979 Constitution, it upheld the complaint of undue delay in the conduct of the  proceedings and delivery of judgment by the trial High Court.
The principles are built around findings of fact, credibility of witnesses and evaluation of evidence which are within the province of a  trial court. It was then reasoned that an appellate court will not ordinarily disturb the findings of fact by a trial court relating to credibility  of witnesses, etc, since they are matters falling within the knowledge of the trial court on account of having seen and heard the  witnesses who gave evidence before it. But, where the trial court held up its judgment for such an unreasonable long period of time,  an appellate court will not hesitate in a proper case to intervene and when necessary, set aside such findings – Chief Yakubu  Kakarah v. Chief Okere Imonikhe (1974) 4 SC 51, and Onosiaherhorwe Ekori & Ors. v. Edo Kimisede & Ors. (1976) 9-10 SC 61 relied  on. (Per Kawu, JSC) at page 15).
From what the learned Justice of the Supreme Court said, the reason for setting aside such findings due to undue delay in delivering  judgment is the contention that the trial Judge had lost all the impressions which the trial in court could have accorded him as a  result of the long lapse in time.
This is what the learned Justice said:
“In this case, in view of the many long intervals of delay in taking the evidence of the parties and their witnesses and the long lapse of  time between the conclusion of the hearing and the delivery of the judgment, can it be seriously contended that the trial Judge had  not lost all the impressions which the opportunity of a court of trial could afford him? A perusal of the judgment in this case clearly  shows that the trial Judge was unable to make specific findings on several crucial issues which were in controversy between the  parties, and this was no doubt due to the fact that he had completely lost his impression of the case.”
In that case, the records showed that there was indeed, undue delay following several adjournments, some spanning several  months. Hearing of the case which commenced on 29/3/76 with the evidence of the plaintiff and ended on 31/3/76, dragged on till  2/11/78. For, when the defence closed on 20/7/78, final addresses did not take place till 2/11/78, when it was adjourned for judgment  to 30/11/78. Judgment was however, not delivered till 5/11/79, over one year after the conclusion of hearing in the case and infact  three years seven months after trial commenced.
As a result the Justice of the Supreme Court held thus:
“In this case, it is my view that owing to the long interval between the conclusion of evidence and final addresses and the delivery of  judgment the trial Judge ought to be regarded as having lost the advantage of seeing and hearing the witnesses, who had given  evidence before him. In the circumstances, it would have been almost impossible for him to come to a right decision in his  judgment”.
To this, Bello, CJN (as he then was), Eso, JSC, Aniagolu, JSC and Kazeem, JSC concurred.
Obviously, the applicable principles are not predicated merely on proof of delay, but on the effect on the ability of the trial court to carry  out its primary duty of appraisal and evaluation of evidence of the witnesses before him.
Clearly, section 258(4) of the 1979 Constitution is in that spirit. Until the cross-appellant establishes these elements enunciated by  the courts and section 258(4) of the Constitution, he will not succeed in moving this court to nullify the proceedings and judgment of  Oluoti, J.,-as he seeks to do.
On the whole, there is nothing shown by the cross-appellant who complains about the delay in delivering the judgment and its effect  on him to satisfy this court that he has suffered any miscarriage of justice as prescribed by section 258(4) of the 1979 Constitution. I  would therefore, also determine this second part of his issue against the cross-appellant. In the premises, both grounds 1 and 2 of  the cross-appeal fail. The cross-appeal is hereby, dismissed.
I will recap, in conclusion regarding the main appeal thus:
The appellant’s 4 grounds of appeal having succeeded, I would in exercise of the powers of this court allow the main appeal, set  aside the verdict and sentence of the court below, presided over by Oluoti, J. I set the same aside and substitute the following:-
The accused is hereby found guilty of the offence of culpable homicide punishable with death under section 221(a) of the Penal  Code as charged. He shall be hanged by the neck until he is dead.

Mrs. Irene Fubara Manuel V. Chief O. O. Oruwari & Anor (2004)

LawGlobal-Hub Lead Judgment Report

EJEMBI EKO, J.C.A.

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment):

The suit the subject of this appeal was commenced at the High Court of Rivers State with the following parties –

BETWEEN:
CHIEF OWITUBO O. ORUWARI-   PLAINTIFF
(By his Attorney Chief Kenneth I. Briggs)
v.
1. ATTORNEY-GENERAL, RIVERS STATE
2. RIVERS STATE HOUSING & PROPERTY DEVELOPMENT AUTHORITY –  DEFENDANTS
3. MRS. IRENE FUBARA MANUEL

On 14th July, 1988 the plaintiff filed motion on notice praying for leave to discontinue the suit against the Attorney-General of Rivers State. The court below accordingly struck out the Attorney-General of Rivers State from the suit.

On 10th September, 1990 an application was brought by Senibo Oruwari praying that “the name of Chief Owitubo O. Oruwari in the suit no. PHC/526/86 be substituted with that of his son, Senibo Oruwari and that the suit be prosecuted in the name of Senibo Oruwari as the plaintiff”. The application was granted unopposed on 28th January, 1991 and it was “ordered that in the suit no. PHC/526/86 the name of Chief O. O. Oruwari, now deceased be dropped and substituted with the name of his son, Senibo Oruwari, as the plaintiff”.

From thence Senibo Oruwari prosecuted the case as the plaintiff against only the Rivers State Housing and Property Development Authority, and Mrs. Irene Fubara Manuel, the Attorney-General of Rivers State having already been struck off as a defendant in the suit. Judgment in the suit was delivered on 30th July, 1997 between the Senibo Oruwari, as plaintiff, and Rivers State Housing and Property Development Authority, and Mrs. Irene Fubara Manuel, as defendants. The substitution of Senibo Oruwari, as the plaintiff, for Chief O. O. Oruwari (by his attorney K. I. Briggs) was on the footing that Chief O. O. Oruwari, erstwhile plaintiff, had since died on 14th May, 1990 – see pages 183 – 187 of the Record of Appeal.

As between the parties this fact is notorious. The testimony of PW.1 at page 206 of the Record bears this fact out.

The 1st Respondent has brought a notice of preliminary objection on 19th September, 2007, which he argued in his brief filed on 12th June, 2010 vide order made on 24th May, 2010. The preliminary objection is on three grounds, namely:

a. That the notice of appeal filed at pages 403 – 405 of the Records, is fundamentally defective and void ab initio having been filed against Chief O. O. Oruwari (by his attorney K. I. Briggs) – both deceased.

b. That the purported interlocutory appeal, argued together with this appeal, is incompetent, its notice of appeal having not been filed in the Registry of the lower court or at all.

c. That the argument of both appeals together by the Appellant renders the brief of argument filed by the Appellant also incompetent and void.

The preliminary objection of the 1st Respondent was argued in paragraphs 3.02 – 3.06 of the 1st Respondent’s Brief. The arguments of the 1st Respondent on the preliminary objection and the appeal, contained in the 1st Respondent’s Brief filed on 12th June 2012 vide order made on 24th May, 2012 were adopted by E. B. Ukiri of counsel to the 1st Respondent on 25th February, 2014 when this appeal was heard. The Appellant’s Brief filed on 8th March, 2005 was deemed argued in the absence of the Appellant and his counsel. The hearing notice for the appeal was on 10th January, 2014 served on the Appellant through her counsel.

Mrs. Irene Fubara Manuel, as the 2nd defendant in the suit of Senibo Oruwari, who was substituted for the deceased Chief O. O. Oruwari, was aggrieved by the decision of Rivers State High Court (coram: F. N. N. Ichoku, CJ) delivered on 30th July, 1997 in the suit no PHC/526/86. The said Mrs. Irene Fubara Manuel, as the appellant, brought this appeal vide the notice of appeal filed on 22nd August, 1997. The notice of appeal at pages 403 – 405 of the Record, settled by O. Ben-Whyte of counsel for the appellant has Mrs. Irene Fubara Manuel as the appellant, and two respondents named as Chief O. O. Oruwari (by his attorney, K. I. Briggs) and the Rivers State Housing and Property Development Authority.

The parties directly affected by this appeal are, at page 405 of the record, stated to be
1. CHIEF O. O. ORUWARI (By his Attorney, K. I. Briggs)
2. RIVERS STATE HOUSING & PROPERTY DEVELOPMENT AUTHORITY
3. MRS. IRENE FUBAM MANUEL

There is an undisputed proof, at page 187 of the Records that Chief O. O. Oruwari died on 14th May, 1990. The order of court made on 28th January, 1991 that “in the suit no. PHC526/86 the name of Chief O. O. Oruwari, now deceased, be dropped and substituted with the name of his son, Senibo Oruwari, as the plaintiff” bears eloquent testimony that not only that Chief O. O. Oruwari had died since 1990 but also that he had ceased to be a plaintiff on the record in the said suit from 28th January, 1991. Mr. Ukiri submits and I agree that a deceased person ceases to have legal or juristic personality.

Accordingly an originating process, as the notice of appeal, issued either in the name of or against a deceased party or non-juristic personality is void ab initio. A deceased person, as Chief O. O. Oruwari, having no legal personality from the moment of his death can neither be an appellant nor a respondent in an appeal. The notice of appeal at pages 403 – 405 of the records of appeal is null and void and of no effect, the appeal thereby having been brought against a deceased party as one of the respondents. See CHIEF PETER AJAKAYE & ANOR v. CHIEF A. EDEHAI & ANOR (1994) 8 NWLR (Pt. 346) 504 at 533.

See also in RE: OSIBAKORO D. OTUEDON (1995) 4 NWLR (Pt. 392) 655 where the Supreme Court further affirmed this principle of law. In the said matter, the apex court cited with approval CLEMENT EZENWOSU v. PETER NGONADI (1988) 3 NWLR (Pt. 81) 163 and LAZARD BROTHERS v. MIDLAND BANK (1932) 1 KB 617 at 624 (CA) and held that where a notice of appeal is incompetent, null and void there can be no valid appeal pending before the appellate court. Such notice of appeal can not even be amended by substituting a living person for the dead litigant. See CLEMENT EZENWOSU v. PETER NGONADI (supra). The defect is not a mere procedural defect or irregularity but a radical and fundamental error bordering on issue of jurisdiction. See IN RE: OTUEDON (supra).

I am satisfied that the purported notice of appeal at pages 403-405 of the Records is incompetent, null and void, and of no effect. The notice of appeal can not kick-start the jurisdiction of this Court. That is the effect of the incompetence of the notice of appeal. The jurisdiction of this Court can only be properly invoked by a notice of appeal initiated by due process of law. See MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 587 at 594; SKENCONSULT (NIG) LTD v. UKEY (1981) 1 SC (Reprint) 4.

As we lack jurisdiction, my Lords, to entertain this appeal, including the additional grounds of appeal, the appropriate order to make is an order striking it out, and it is hereby struck out. See ONWE & ORS v. OKE & ORS (2001) 3 NWLR (Pt. 701) 406 at 417; MOBIL PRODUCING (NIG) UNLTD v. LASEPA & ORS (2001) 8 NWLR (Pt. 715) 489 at 504.

The records before me show that the appellant filed a motion on notice on 9th February, 2004 wherein he sought inter alia order extending time within which to apply for leave to appeal against the interlocutory ruling delivered on 28th January, 1991, leave to appeal the said ruling and extension of time to file the notice and grounds of appeal. The application was granted on 1st March, 2005. The application was brought against the deceased Chief O. O. Oruwari as one of the respondents. The application has the same fundamental errors that vitiated the notice of appeal at pages 403 – 405 of the Records of Appeal. Accordingly, the notice of interlocutory appeal brought in that fundamental error is also incompetent.

The law is settled that where an order is made granting the appellant extension of time within which to appeal and leave to appeal when in fact there was either no living appellant or respondent, or when one of the litigants was dead before the order was made, such an order would be null and void, and of no effect whatsoever. See IN RE: OTUEDON (supra) in which the Supreme Court cited with approval this principle of law espoused in LAZARD BROTHERS v. MIDLAND BANK (1932) (supra) and CLEMENT EZENWOSU v. PETER NGONADI (supra). The interlocutory appeal against the ruling of 28th January, 1991 being also incompetent is hereby struck out.

The Appellant’s Brief filed on 8th March, 2005 is apparently founded on the incompetent original and interlocutory appeals. The brief is also liable to be struck out as something can not be placed on nothing. It will collapse, as stated by Lord Denning MR in U.A.C. LTD v. MACFOY (1961) 3 ALL E.R 1160. The Appellant’s Brief of Argument can not be valid when the appeal it purports to argue is incompetent. Accordingly, the Appellant’s Brief of Argumen B t filed on 8th March, 2005 is hereby struck out.

There is substance in the preliminary objection. I accordingly allow it. The original notice of appeal filed on 22nd August, 1997 at pages 403-405 of the Records, the interlocutory appeal, the additional grounds of appeal and the Appellant’s Brief of Argument filed on 8th March, 2005 being all incompetent processes are all hereby struck out.

I notice also that in the Appellant’s Brief filed on 8th March, 2005 she had also unilaterally altered the parties to her appeal. Ex facie the brief Senibo Oruwari (by his attorney, Chief Ken I. Briggs) is the 1st Respondent in the appeal. The 1st Respondent in both substantive and interlocutory appeals was Chief O. O. Oruwari (by his Attorney, K. I. Briggs).

No party is allowed to unilaterally alter or amend the notice of appeal. By dint of Order 6 rule 15 of the Court of Appeal Rules a notice of appeal can only be amended by or with leave of court. By this unilateral alteration the Appellant’s Brief filed on 8th March, 2005 is not a brief of argument filed in any existing appeal. The consequence of this is that the appellant will be deemed not to have filed any brief of argument in this appeal. That being so, the appeal would be liable to be dismissed for want of prosecution.

The substantive appeal and the interlocutory appeal being incompetent are hereby struck out. There is, therefore, no basis for me to disturb the decision and orders made in the suit no PHC/526/86 on 30th July, 1997. The parties shall bear their respective costs.

---

Other Citations: (2004)LCN/1546(CA)

CPL. Segun Oladele V. The Nigerian Army (2004)

LawGlobal-Hub Lead Judgment Report

PIUS OLAYIWOLA ADEREMI, J.C.A.

The appeal is against the judgment of the General Court Martial delivered on the 22nd of December, 2000 whereby the appellants were convicted and sentenced to terms of imprisonment ranging from life imprisonment to some years of imprisonment. The General Court Martial sat at the Cantonment Officers Mess, Ikeja, Lagos. The said appellants had been court martialed for the following offences the counts of which run into 3(three):

1. Mutiny, punishable under section 52 (2) of the Armed Forces Decree No. 105, 1993 (as amended).

2. Conduct to the prejudice of good order and service, discipline, punishable under section 103(1) of the Armed Forces Decree No. 105, 1993 (as amended).

3. , Disobeying a particular order, punishable under section 56(1) of the Armed Forces Decree No. 105, 1993 (as amended).

Briefly, the facts leading to this appeal are as follows:
The appellants were part of the Nigerian Army personnel serving ECOMOG PEACE KEEPING FORCES in Liberia and Sierra Leone. In the course of their service, they sustained wounds and injuries consequent upon which they were flown back to Nigeria and kept at the Yaba Military Hospital, Lagos where they contended that the medical treatment given to them was inadequate and indeed worsened their already deteriorating health conditions.

They were, therefore, referred to Hassabo International Hospital, Cairo, Egypt for further treatment from specialist doctors. Again they claimed that the medical treatment which they received in Egypt was grossly inadequate and that they were not given their estacode. It was their further contention that they were subjected to untold hardship which prompted them into protesting. Some top senior military army officers amongst them used their position in the military to order the immediate return of the appellants against all medical advice and thereafter ordered that the appellants be arrested, detained and court-martialed; hence the offences charged.

As I have earlier said, they were tried convicted and sentenced after the prosecution had called 9 (nine) witnesses and tendered 32 (thirty-two) exhibits while the accused persons called 10 (ten) witnesses and tendered 18 (eighteen) exhibits.

Being dissatisfied with the judgment of the General Court Martial, the appellants have appealed to this court and have identified four issues for determination; they are in the following terms:
1. Whether the conviction of the appellants by the General Court Martial was not wrong when it held upon the totality of the evidence adduced at the trial that the charges of mutiny, conduct to the prejudice of good order and service discipline and disobeying a particular order have been established against each of the appellants beyond reasonable doubt.
2. Whether from the totality of the evidence and materials placed before the General Court Martial, the prosecution had proved its case beyond reasonable doubt.
3. Whether the General Court Martial or any Court Martial as a court established by a decree and recognized by the Constitution is not expected to write its judgment and make the findings in any case known with reasons adduced to that effect.
4. Whether the Constitutional right of fair hearing of the appellants were not breached by the composition of the General Court Martial and the entire trial.

The respondent, in their brief of argument, expressed their approval of and adoption of the four issues identified by the appellants for determination.

On issue No. 1 the appellants submitted in their brief of argument that no legal reason had been adduced by the prosecution, the respondent, to justify the sustenance of the charges the ingredients of mutiny as contemplated under section 52 (2) of the Armed Forces Decree No. 105 of 1993 or any other offence beyond reasonable doubt and which ingredients were clearly spelt out in section 52 (1) of the Decree were never shown from the records to have reflected the conduct of the appellants.

Indeed, it was their further submission that they lacked the capacity to carry out mutiny given the circumstances of their traveling and the condition of their health. The court martial, it was again argued failed to ascertain critically whether the acts of the accused persons came within the purview of the offences of mutiny, conduct to the prejudice of good order and service discipline and disobeying a particular order. The offences as charged were not proved beyond reasonable doubt, it was again argued adding that the appellants merely demanded for what was due to them, thus the defence of bona fide claim of right would avail them, reliance was placed on the decisions in Amadi v. The State (1993) 8 NWLR (Pt.314) 644; Nwuzoke v. The State (1988) 1 NWLR (Pt.72) 529; Tonga v. COP (2000) 2 NWLR (Pt.645) 485; and Ahmed v. The State (1999) 7 NWLR (Pt.612) 641.

Having failed to establish or show an existing written or oral order which the appellants allegedly disobeyed; it was submitted that no person shall be charged or convicted for an offence which he is incapable of committing at the time it was alleged to have been committed. No reasons were given for the judgment it was again argued; and all defences available to the appellants were never or thoroughly considered; it was finally submitted on this issue that the appeal be allowed. For their part, the respondent have argued that the court martial was right in convicting the appellants going by the evidence adduced.

The trial before a court martial is a jury trial and therefore the court was not bound to give reasons to justify the sentences imposed; Rules 67 of the Rules of Procedure (Army) was cited in support. The duty of the court martial is to comply with section 141 of the Armed Forces Decree No. 105 of 1993 (as amended) and there was compliance, it was submitted. Disobedience or resistance to lawful authority is sufficient to sustain the charge of mutiny.

It is axiomatic, indeed it is well settled in our criminal jurisprudence that proof beyond reasonable doubt is sine qua non to securing a conviction in any criminal proceedings. The onus of discharging that duty generally rests on the prosecution – the person or body asserting. On count 1, the appellants were charged for mutiny punishable under section 52(2) of the Armed Forces Decree No. 105 of 1993 (as amended); the provisions of which are as follows:

A person subject to service law under this Decree who in a case not falling within sub-section (1) of this section, takes part in a mutiny, or incites any person subject to service law to take part in any mutiny, whether actual or intended, is guilty of an offence under this sub-section and liable, on conviction by a court martial, to life imprisonment.

I think it is appropriate at this stage to reproduce the provisions of section 52(1) of AFD referred to in section 52(2) reproduced supra; they are as follows:

A person subject to service law under this decree who:
(a) takes part in a mutiny involving the use of violence or the threat of the use of violence or having as its object or one of its objects the refusal or avoidance of any duty or service against or in connection with operations against the enemy, or the impeding of the performance of that duty or service; or
(b) incites any other person subject to service law under this Decree to take part in a mutiny, whether actual or intended, is guilty of an offence under this sub-section and liable on conviction by a court martial, to suffer death.

I have had a careful study of the ingredients of the offence of mutiny as encapsulated in the appellant’s brief of argument; they are acceptable to me; and they are:
1. that the accused persons are subject to service law;
2. that the accused persons were given an order to carry out a military act; that the accused persons deliberately and by collusion disobeyed the order; that the disobedience and the acts strike at the foundation of discipline in the Army; that the accused persons used violence or threat of violence; that such act or acts were deliberately designed to put the Nigerian Army in imminent danger.

In criminal jurisprudence it is generally the duty of the prosecution to prove, beyond any reasonable doubt, that the accused person or persons have committed the crime. Where the ingredients are ascertainable as in the instant case, the prosecution must prove beyond any reasonable doubt that the accused person or persons envisaged by the law creating the offence and their acts are in tune with the ingredients of the offence. It must however be said that the phrase, proof beyond reasonable doubt, in the realm of criminal justice, connotes such proof as precludes every reasonable hypothesis except that which he tends to support. Certainly, it is not a proof beyond shadow of doubt. See Dimlong v. Dimlong & Ors. (1998) 2 NWLR (Pt.538) 381.

What is the evidence proffered by the prosecution that did sustain the conviction of the appellants, in law? The 5th PW – Col. E.C.N. Azodoh the Commanding Officer of the ECOMOG Task Force testifying said the whole episode started with the appellants shouting that their estacode received from home had been stolen by the officials leading them to Cairo for medical treatment. Despite all entreaties by him to go into the bus at the Airport in Cairo, they refused to move insisting that their estacode be paid. However, some of them left in the bus. He had said that some of the appellants demanded to meet the Nigerian Ambassador to Egypt. Although the Nigerian Ambassador to Egypt was not invited by:PW5 despite the seemingly riotous scene at the Airport in Cairo, that Ambassador came on his own volition.

Although it was alleged that some of the accused/appellants went out of the hospital in Cairo to other hospitals for medical attention in protest that they were not receiving good medical attention in Hassado International Hospital to which they were taken to PW5 said he never kept the record of such appellants. This was a vital piece of allegation calling for strict proof or proof beyond reasonable doubt. The suspicion expressed by PW3 that some of the appellants went out of the hospital on their own volition will not suffice.

To a suggestion put to him as to whether he met all these people that flouted his order and did not ascertain them; what would be his reason for not so doing, the PW5 said he did not see them commit the offence and it was only reported to him. Mutiny is a criminal offence of a serious dimension. The pieces of evidence that I have reviewed supra have not shown that the appellants disobeyed any order deliberately nor did they use any violence. If any thing at all, all they did was to protest the non-payment of their estacode.

Such a protest finds justification on the admission of PW4 that he had paid some soldiers who earlier traveled with some estacode and was emphatic that the appellants were not prohibited but there was no express provision for the payment of estacode to them. There was also the evidence of secretive investigation and selective trial which by itself vitiates the entire proceedings. Issue No. 1 must be answered in the negative. And I so answer it for similar reasons; I also answer issue No.2 in the negative:

On issue No.3, the appellants had argued in their brief that failure of the General Court Martial to give reasons upon which its oral judgment was founded was fatal to the entire proceedings and the judgment itself. The judgment of the court martial had not demonstrated a dispassionate consideration of the issues which reflect the result of the exercise leading to the decision. It was urged that the appeal be allowed and the judgment of the court martial set aside, reliance was placed on a number of decisions the likes of (1) Oro v. Falade (1995) 5 NWLR (Pt.396) 385 at 391; (2) C.C.B. (Nig.) Ltd. v. Onwuchekwa (2000) 3 NWLR (Pt.647) 65; (3) Akujinwa v. Nwaonuma (1998) 13 NWLR (Pt.583) 632; (4) Akibu v. Race Auto Supply Ltd. (2000) 14NWLR (Pt.686) 190; and (5) Ezeakabekwe v. .Emenike (1998) 11NWLR (Pt.575) 529.

In response to the arguments canvassed by the appellants, the respondent, through his brief .had likened the trial before a court martial to that of a jury trial and so there is no need to give reasons for its findings and need not write judgment; it is sufficient for the court martial to just announce its findings in the open court; support for these submissions was found in rules 67 (1) Rules of Procedure (Army) and section 141 (1) of the AFD No. 105 of 1993 (as amended). The General Court Martial, it was further argued, is not bound to give reasons or make findings for its conclusion before giving the verdict under the AFD 105 (as amended).

It is not only the prosecution and the accused persons that are stakeholders who should be interested in the out-come of criminal proceedings. Let it be well known that the general society are equally stakeholders if not the greatest stakeholders who are more interested in the result of any criminal proceedings. The outcome of any criminal trial not only touches on the conscience of the society, it affects or controls its psyche. If it were not so barbaric or Kangaroo criminal system of justice which was applied or operated in the dark days of mankind would have still been prevalent till the present day.

It was the sustained and concerted societal efforts that got the primitive and absolute backward system modified at every stage of human development until we got to the present evolution of our criminal justice system. The society is still not at rest in working out improvement of this system. Criminal justice system in a country that upholds the rule of law as a way of life, cannot but conform with the acceptable standard prevailing in all civilized countries of the world. I make bold to say that Nigeria is not an exception ,we are in democracy and the rule of law must prevail. Some of the counts under which the appellants were charged, carry death penalty, the highest punishment under the law and long-term imprisonment.

Let it be said that members of the armed forces in this country have not denounced their membership of the Nigerian society and it seems to me that they cannot do so in a manner calculated to jettison the provisions of the Nigerian Constitution the groundnorm.

Indeed section 1 (1) of the 1999 Constitution provides:
This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.

The offences for which the appellants were tried were alleged to have been committed sometimes in August 2000. The commencement date of the present Constitution is 29th May, 1999.

The members of the Armed forces are not excluded from the application of the provisions of Fundamental Rights the likes of right to life, right to personal liberty, right to fair hearing, right to freedom from discrimination etc. I have looked carefully at the records of proceedings nowhere was it shown that the court martial evaluated the evidence led before it nor had a dispassionate consideration of the issues in controversy. The judgment is bare. In Anyankpele v. Nigerian Army (2000) 13 NWLR (Pt.684) 209, it was observed at page 214:

The judgment of any court or tribunal must be based … in criminal matters, on the evidence adduced in court and the findings of the Judge which are based on the issues raised …
No court or tribunal can negotiate a non-compliance with the above requirements. In the instant case, no reasons were given as to how the conviction of the appellant was arrived at. The court just simply pronounced him guilty on the two charges.

Again in C.C.B (Nig.) Ltd. v. Onwuchekwa (2000) 3 NWLR (Pt.647) 65 at 68 it was held:

The decisions of court must be related to the facts which informed such decisions. Confusion is inevitable whenever pronouncements are made not on the basis of the facts which should influence the pronouncements.

Also in Sagay v. Sajere (2000) 6 NWLR (Pt.661) 360 on the same point it was reasoned at pages 364 and 365 thus:
The requirement that a judgment must clearly demonstrate that the conclusions arrived at in the case were not based on intuition and whim of the Judge but on evidence properly evaluated, and the law is not an insistence on mere form, but derives from the need to ensure and demonstrate that substantial justice has been done in the case.

When a Judge has in his judgment failed to give a fair summary of the cases presented by the parties, and to summarize the evidence and make findings of facts on the various material issues raised in the pleadings, he cannot be seen to have discharged his judicial function properly.

The records of appeal before this court have not shown a resolution of issues presented to the court martial for resolution let alone a clear resolution in the case. The whole proceedings have thus been bedeviled with fundamental vice such that the verdict or judgment of guilt must not be allowed to stand. Issue No.3 is therefore resolved in favour of the appellants.

On issue No.4 for all I have been saying I cannot but resolve it in favour of the appellants. The whole proceedings have been characterized by breach of the principle of fair hearing. See Yekini v. Nigerian Army (2002) 11NWLR (Pt.777) 127.

In sum, having regard to all I have been saying supra, it is my judgment that this appeal is meritorious, the decision of the General Court Martial together with the sentences are set aside and the appellants are discharged and acquitted of all the offences preferred against him.

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Other Citations: (2004)LCN/1544(CA)

Alhaji Sadu Saliu Kayaoja V. Alhaji Ibraheem a. Bello & Ors (2004)

LawGlobal-Hub Lead Judgment Report

D. MUHAMMAD, J.C.A.

Sometime, in September, 1981, while on the Muslim’s pilgrimage to Mecca, Alhaja Sabalemotu Alarape Adekayaoja, died intestate. She was survived by the parties to the suit that brought about the instant appeal. The appellant who at the trial court was the plaintiff, is the deceased’s half brother on the paternal side. The defendants, now respondents, are late Sabalemotu’s half-brothers and sister, on the maternal side. On Sabalemotu’s death, the respondents took over her estate and subsequently, applied for a letter of administration.

A caveat thereat was entered by the appellant, who also instituted an action seeking the following reliefs:-
“(a) A declaration that the plaintiff is entitled to administer and inherit the real property (sic) namely 11 Ogunjobi Street and 16 Ereko Street Mushin, belonging to Alhaja Sabalemotu Alarape Adekayaoja and also, the rents accruing therefrom from the time of the intestate’s death.
(b) A declaration that the plaintiff is entitled to share in the personal estate namely gold, and/or silver jewelry, other personal effects and money in the savings account of the said deceased, with the Union Bank Ltd. at Balogun Square Branch, Lagos, or at any other branch of the bank.
(c) A declaration that the plaintiff is entitled to join in the administration of the estate of the late Alhaja Sabalemotu Alarape Adekayaoja.
(d) Injunction restraining the defendants from taking out letter of administration to the estate of the said Alhaja Sabalemotu Alarape Adekayaoja to the exclusion of the plaintiff’s family.”

Pleadings were ordered, filed and exchanged. From the pleadings and evidence adduced by the appellant, the plaintiff’s case is that appellant and the deceased were of the same father: Salu Kayaoja. On the death of their father, the appellant and all other surviving children of Salu Kayaoja agreed to partition the land owned by their father and which by Yoruba customary rule, had devolved collectively on heirs; that the deed of partition exhibit D was declared invalid in suit No. 1/273/55 between Alahaji Lasisi Onasanya v. J. O. Shiwoniku; this fact was accepted by the members of the Adekayaoja’s family. It is also their case that all lands dealt with pursuant to the invalid deed of partition, being family land, consequently, reverted to the estate of their late father. Such land cannot, by virtue of the death of Alhaja Sabalemotu intestate, devolve on the respondents.

On the part of the respondents, the case made is that beyond the decision of Duffus J, in suit No. 1/273/55, evidence abound that the estate of late Salu Adekayaoja had been partitioned. Resulting from the subsisting partition, the properties in controversy had legitimately devolved on the deceased Alhaja Sabalemotu and that same on the death of the said Alhaja should by Yoruba custom, devolve on them.

Plaintiff/appellant’s claim was dismissed by the Lagos State High Court whereat the suit was tried.
Being dissatisfied, the appellant has brought the instant appeal, against the lower court’s decision, dated 18th July, 1998.

From the three grounds of appeal in his notice, appellant has formulated three issues as having arisen for the determination of the appeal. The issues are:-
“(1) Whether on the state of the pleadings, the Judge ought not to have found that the plaintiff had proved his case?
(2) Whether the trial Judge was right in not holding the deed of partition invalid?
(3) Whether a person where (sic) is not a member of a family, can inherit property from that family under Yoruba Native Law and Custom?

At the hearing of this appeal, the respondents who had formulated six issues in their brief of argument, withdrew issues (III), (IV) and (V) thereto.

Same are hereby, accordingly struck out. Resultantly respondents’ live issues are:-
(1) Whether or not, the deed of partition signed by the beneficiaries, dated 17/12/49 is still subsisting?
(2) Whether or not, the judgment of Dagfus J. could bind a person who was not a party to the suit and have retrospective effect on transactions made six years before the delivery of the judgment exhibit “D” (Judgment delivered in 1955)?

(IV) Who as between the appellant, being Alhaja Sabalemotu’s half brother (from he father’s side) and the respondent’s been her half sister and brothers (from her mother’s side) is entitled to inherit the properties of Late Alhaja Sabalemotu Alarape Kayaoja?

Under his first issue, appellant argues that from the state of pleadings of parties, respondents have admitted that Alhaja Sabalemotu Kayaoja was detailed by the family to collect rent on property No. 46 Kayaoja layout and that the rents that had been so collected was in possession of the deceased. The rent accruing from this family property, cannot be inherited by the respondents who, being related to the deceased only on the material side, are not members of the very family in respect of whom the money was collected.

Failure of the court to make a specific finding as to what should happen to rents so collected by the life time of the deceased was fatal to the court’s decision.

In arguing his 2nd and 3rd issues, appellant argued that the trial Court has relied heavily on the judgment in suit No. 1/273/55 to invalidate the deed of partition, exhibit R. Consequently, the court decided and wrongly too that ownership of Houses No. 11 Ogunjobi Street and No. 16 Ereko Street Mushin were vested in late Alhaja Sabalemotu in her personal capacity. The correct position is that being family property same had reverted to the family.

Appellant argued further that given the unchallenged evidence of PW2 at line 14 of page 36 of the record that Salu Kayaoja, their ancester, has seven children, and only four of whom signed exhibit R, the exhibit could not have been valid as found by the trial court. Appellant relies on the decisions in Okene v. Orianwo (1998) 9 NWLR (Pt. 566) 408 at 428 and Baruwa v. Ogunshola (1938) 4 WACA 159, to the effect that the respondent could only inherit, if the ownership of the properties in question by the family had come to an end by virtue of its being partitioned. The court was wrong to have relied on the testimonies of the witnesses called by the respondents instead of exhibit R, the very document which validity was being contested. Exhibit R was incapable of conferring any individual beneficial interest on any descendant of the Kayaoja.

On the whole, appellant has argued that the appellant be allowed.

In arguing their 1st and 2nd issues for the determination of the appeal, respondents argued that neither of the parties to the instant appeal made exhibit R, the deed of partition, the subject of the controversy between them. Only signatories to or beneficiaties of the deed or such persons whose right have been adversely affected by the deed are in position to invalidate the deed. Respondents contend that the lower court is correct to have stated that since neither party was a party to suit No. 1/273/55, Alhaji A. Onasanya v. J. O. Shinwoniku, the deed of partition cannot be invoked to decide the rights of parties in the instant case.

As to their issue IV and the last, the others having been withdrawn and struck out, respondents argued that property situate at No. 16, Ereko Street Mushin, Lagos, known as plot No. 47 as well, had been shown to have been sold by the Kayaoja family to Alhaja Ramotu, the mother of the deceased. Exhibit V conveyed the property as sold. The other property, No. 11 Ogunjobi Street had also been duly established to have been owned by the deceased. The two properties as well as the personal property of the deceased on the authority of Alase & Ors. v. Sanya Olori-Ilu & Ors. (1965) NMLR 66; (1982) Vol. 3 NSCC 294 at 296 and Bolajoko and Another v. Layeni 19 NLR 99, devolve on respondents under the Yoruba Customary Law.

Respondents urge that lower court’s decision be affirmed as same cannot be faulted.

The principal question to be answered in the course of determining the appeal would be whether or not, appellant had proved his case, given the pleadings and evidence before the court. Invariably attention has to be gleaned at the existence or otherwise of the partition of the estate of late Salu Kayaoja, a fact that will determine consequentially, if indeed the landed properties left behind by the late Sabalemotu had ceased to be family property and by operation of the Yoruba Customary Law, the respondents rather than the appellant were the lawful heirs thereto.

It must be stressed at once that both parties in the instant appeal, are one as to what the Yoruba customary law provide on the effect of partition on a family land. The trial court was right to have restated the principle in the same vein. It is a trite Yoruba customary law principle that family land is communally held and that title or ownership remains in the family unless and until partition of the property had been effected. Once proved, therefore, partition has the effect of division of the communal or group ownership characteristic of family lands.

In the instant case, where the appellant institutes an action claiming a right on the basis that the land in controversy belongs to the family, he succeeds if at the end of trial the land has remained the family property he claims it to be. Conversely, evidence to the effect that the property in contention is erected on family land that has been partitioned certainly takes the bottom off the appellant’s case.

It is a basic requirement of our adversarial system of justice that a claimant must prove that which he asserts. Where the appellant claims that the estate of his late sister, Alhaja Sabalemotu, is part of family property and the respondents join issue with the appellant to the effect that the estate was acquired after a partitioning of the family property, the trial court must decide if indeed a partition had occurred and state the effect of its occurrence. The logic is that property that devolves on another pursuant to a partition of family land can be alienated without restriction: see Johnson v. Macaulay (1961) 1 All NLR 743; Ogunmefun v. Ogunmefun (1931) 10 NLR 82; Caulcrick v. Harding (1926) 7 NLR 48 and Adesanya v. Otuewu (1993) 1 NWLR (Pt. 270) 414.

Whether or not, a partition of family property had taken place is always a question of fact to be resolved by reference to the pleadings and evidence available to the court. Arguments pertaining to the proof or otherwise of the fact of the partition of the real estate of late Salu Kayaoja boils down to the evaluation of the evidence undertaken by the trial court as to this contested fact.

It has been emphasized in a seemingly endless chain of authorities that evaluation of evidence is the primary function of the trial court. An appellate court would only intervene where such evaluation is shown to be perverse. The appellate court is very slow and hesitant to interfere with the trial court’s evaluation of evidence, if the exercise borders chiefly on the credibility of the witnesses and the choice of whose testimony was to be preferred. This is so because, the trial court is, having had the opportunity of seeing the witnesses, in a better position to draw the correct inferences. Where, I however, the quarrel is simply that the trial court’s evaluation is wrongly done either wholly or partly, and injustice has resulted from the exercise, the appellate court intervenes. See Lado v. State (1999) 9 NWLR (Pt. 619) 369, see; Olufosoye v. Olorunfemi (1989) 1 NWLR (Pt.95) 26 and Nwankpu v. Ewulu (1995) 7 NWLR (Pt. 407) 269 SC.

Appellant’s amended statement of claim is to be found at pages 50-54 of the record of appeal of significance are paragraphs 3, 4, 5, 9, and 12. The combined effect of these paragraphs is that subsequent to the death of Salu Adekayaoja intestate his children sought to partition their father’s land among themselves; the said vast area of land included No. 11 Ogunjobi Street and No. 16 Ereko Street Mushin respectively; that the deed of partition which was executed in 1949, was nullified following the judgment in suit No. 1/273/55 of 6/10/60; that in between 1949, when the deed of partition was executed and 1960, when same was nullified, plots of land from the estate of the late Sule Kayaoja were allotted to the deceased’s heirs to develop as private residence; that on the nullification of the shortlived deed of partition, however, the heirs who never had any deed of conveyance in respect of the plots of land allotted to them, henceforth, held their individual plots in trust for the whole family.

Plots 11 Ogunjobi Street, and 16 Ereko Street were allotted to, held and developed by Alhaja Sabalemotu, before her death and are the properties in controversy; that after the judgment in suit No. 1/273/55 in 1960, the entire heirs to the estate of late Salu Kayaoja, including the late Sabalemotu accepted the fact of nullification and dealt with the land owned by their father as family property; that following this acceptance, principal members of the family were authorised to and executed conveyance in favour of purchasers of portions of the estate of their father late Sabalemotu was one such principal donated the power of attorney.

The relevant averments in the pleadings of the respondents are paragraphs 4, 5, 6 and 9, reflected at pages 80-82 of the record. It is averred therein that heirs of the late Salu Kayaoja, apart from executing a deed of partition in 1949, pursuant to which they allotted to themselves parcels of land, they also sold the remaining unallotted parcels under a power of attorney donated to principal members among them; that plot No. 16 Ereko Street was sold and conveyed to Ramotu Ashabi, the mother of the respondents and the late Sabalemotu, and that the conveyance thereto was registered as No. 23/23/411; that No. 11 Ogunjobi was allotted to the late Sabalemotu consequent to the deed of partition of the estate of the plaintiff’s late father; that the parcel was registered in the land registry with late Sabalemotu as the beneficial owner; that the mother of Sabalemotu was on death buried on No. 11 Ogunjobi Street.

Parties led evidence in proof or refutal of the claim. From the pleadings and evidence of both sides is the fact that none of the heirs to the estate of late Salu Kayaoja was a party to suit 1/273/55 pursuant to which Duffus J. invalidated the deed of partition, exhibit D, in his judgment, exhibit R of 6110/60.
After its review of the evidence in proof of the pleadings of the parties, the lower court at pages 151 – 152 of the record judged the matter thus:
“From the above review of my evidence can it be said I that, the deed of partition is not substituting? I am of the view that the deed of partition of 1949, exhibit R is still very much alive and substituting. The decision in suit No. IK/273/55 delivered on the 6th of October, 1960, has no effect on the partition of Kayaoja family. The parties in that suit are not the same parties in this suit…I say the deed of Partition of 1949 is still subsisting having regard to the evidence of the 1st defendant, the 1st DW, the 2nd DW, 3rd and 4th PW and the inconsistence in the plaintiff’s evidence. I am satisfied that the power of attorney made in ex. E appointing 5 attorneys was executed to deal with the unalloted plots of land in the Kayaoja family land.

The plaintiff is still at No. 25 Ereko Street. He sold 7B Ayonuga Street, Mushin. The conveyed plots 16 and 17 of the layout. When he sold No. 7B, Ayonuga Street for N70,000.00, he did not tell the 2nd PW who is one of the 2 surviving attorneys including the plaintiff.

However, the 4th PW told the court that he was told, but he gave the purchase price as N37,000.00. I hold that ex. H to H2 are in respect of unallotted plots. Ex. H1 and H2 were silent on the deed of partition being set aside, it was only exh.H which made mention of the judgment of Justice Duffus. The evidence of the 3rd and 4th PWs that No. 7B, Ayonuga Street was sold on behalf of the family can never be correct having regard to the evidence of the 1st DW and exhs P and Q. I am satisfied that there was partition and that it is still subsisting.

Having so held the 4 plots given to each child of Kayaoja became his/her personal property. Having become personal property to any person of his/her choice, to the exclusion of Kayaoja family.”
The court concluded at page 156 thus:-
“On the evaluation of the 1st defendant evidence and that of his witnesses, I have no iota of doubt that they were speaking the truth. What they say in their evidence corroborated that of the 2nd DW. I am satisfied that there is abundance of evidence of partition both oral and documentary exh ‘R’ and once there is evidence of partition the land ceases to be family land to buttress this view of mine, I refer to the following cases:-
(i) Abike v.Adedokun (1986) 3 NWLR (Pt. 30) 548 at 556
(ii) Kalio and Anor. v. Woluchem and Anor. (1985) 1 NWLR (Pt. 4) 610 at 624
(iii) Taiwo v. Taiwo (1958) SCNLR 244; (1958) 3 FSC p. 80 at 82.

A partition can be effected orally in accordance with native law and custom, once the land has been partitioned, it becomes personal property of the allottee and can be disposed by the allottee in any form he/she may choose. The mother of the Alhaja Alarape Kayaoja was buried at No. 11, Ogunjobi Street.

The plaintiff raised no objection. This is evidence of ownership by the deceased.

Finally, the court asked:
“Who now becomes entitled to inherit and succeed to the estate of late Alhaja Sabalemotu: Is it the half brother/ sister on the paternal line or the half sister/brother on the maternal line?”

On the various judicial authorities it reviewed through pages 157 – 160 of the record, the court decided that respondents were the ones entitled by the operation of Yorub a native law and custom to so inherit and accordingly dismissed the appellant’s claim family property had taken place, the person to whom a particular portion of the hitherto family property was allotted becomes its owner. Where such a person dies intestate as in the case at hand, by operation of Yoruba customary law, deceased’s maternal relations inherit the estate.

So be it. The authorities applied by the trial court are apposite. It must be stressed that it was appellant’s burden to prove all the facts he averred to in his pleadings. It is an elementary principle of law that failure to lead evidence on pleaded facts is fatal to a claimant’s case. It was lawful for the trial court to refuse to find that appellant was entitled to the rent collected by the late Sabalemotu in respect of property N. 46 Kayaoja Estate, when evidence in proof of the pleaded facts remained lacking. See Iseru v. Catholic Bishop, Warri Dioceses (1997) 3 NWLR (Pt. 495) 517 SC and Insurance Brokers of Nigeria v. ATM Co. Ltd. (1996) 8 NWLR (Pt. 466) 316 SC.

Appellant is emphatic that the trial court was wrong to have allowed the respondents re-litigate an issue, already decided by a competent court. He argued that exhibit D the judgment of Duffus, J. had invalidated exhibit R, the deed of partition by virtue of which No. 11 Ogunjobi Street devolved on late Salemotu. The issue of partition having been determined, it is argued cannot be reopened again. It might well be so.

Where a plea of issue estoppel has succeeded, parties must certainly be bound by the raised issue as determined in a previous case. See Fidelity Shipping Co. Ltd. v. Exportchleb (1965) 2 ER 5 and Samuel Fadiora & Anor. v. Festus Gbadebo & Anor. (1978) 3 SC 219.The lower court in its judgment rejected the appellant’s plea on the basis that both the parties and the subject matter in the earlier suit had differed from those in the subsequent matter before it. The differences are more apparent than real. Firstly, all claimants to the property, part of the estate of late Salu Kayaoja, had a common root of title making them either parties directly or privies.

Secondly, although the suit before the trial court seemed to have been founded on the question of inheritance. The issue however, could only be resolved consequent upon the determination of the question of title. Appellant is on a firm terrain in his submission that the court was wrong to have relied on the very deed of partition that had been previously adjudicated upon in its decision as to the fact of partition pertaining to the property in contention. The proper course open to the trial court was to strike out all the paragraphs in the pleadings of parties wherein the issue of the deed of partition was raised and to determine the suit on the basis of the outstanding pleadings of parties. See William Ladega & Ors v. Shittu Durosimi & Ors. (1978) 3 SC 91 at 102. This, in practical terms, meant that neither the appellant, not the respondents would be allowed to reopen an issue that was determined all over again. The court was accordingly wrong to have allowed parties before it prove whether or not the property at No. 11 Ogunjobi Street was part of family property on the basis of exhibit ‘R’. It does not mean, however, that the estate of Salu Kayaoja cannot be shown to have been partitioned by means other than exhibit ‘R’. If the aspect of parties pleadings that dwelt on exhibit ‘R’ and the evidence in proof of same are expunged from the record of the trial court, will the decision arrived at endure? Undoubtedly.

The trial court found the fact of partition from two perspectives: exhibit ‘R’ and the manner in which heirs dealt with the estate of Salu Kayaoja even post the invalidation of exhibit ‘R’. The court found and relied on the uncontroverted evidence that plot No. 16 Ereko Street was sold and conveyed to Ramotu Ashabi the mother of the respondents. The fact that Ramotu Ashabi was, on death, buried at No. 11 Ogunjobi Street, has equally not been disputed. And no protest from any heir too as to this burial. There is the added fact that appellant also dealt with some parcels of land from the estate of his father in a manner inconsistent with family ownership. The trial court had acted on sufficient evidence and correctly concluded that the estate of Kayaoja, beyond the fact of exhibit ‘R’, had in fact been partitioned. Alhaja Sabalemotu was an allottee of No. 11 Ogunjobi after the partition of the estate of her father. The fact of sale of No. 16 Ereko Street to respondents’ mother still persists. By the applicable law, appellant does not inherit Sabalemotu.

The court decided this much inspite of the initial lapse in its judgment. The decision is not perverse. It cannot be tempered with now. I affirm same. From the foregoing, the three issues formulated by the appellant are resolved against him. The appeal lacks merits. It is dismissed with N7,000 cost to the respondents.

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Other Citations: (2004)LCN/1543(CA)

Alhaji Ibrahim Idris & Ors V. Prince Abubakar Audu (2004)

LawGlobal-Hub Lead Judgment Report

T. MUHAMMAD, J.C.A.

The applicants herein prayed for the following reliefs:

“(a) Extension of time within which to apply for leave to appeal;

(b) Leave to appeal;

(c) Extension of time to file the notice and grounds of appeal;

(d) An order deeming the attached notice and grounds of appeal as properly filed and served;

(e) An order staying further proceedings of the suit in the lower court pending the determination of this appeal;

(f) An order directing a departure from the rules of this Hon. Court so that the appeal can be heard on the bundle of documents attached to the affidavit in support and marked exhibit ‘J’.

(g) An order accelerating the hearing of this appeal by reducing the time limits specified for filing of briefs of argument.”

The application was brought pursuant to section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999. Section 25(1- 4) of the Court of Appeal Act, 1976, Orders 3(4), 6(11), 7(2) of the Court of Appeal Rules and the inherent jurisdiction of the court.

The grounds for the application are as follows:

“1. The decision being appealed against is an interlocutory one.

2. Some of the grounds of appeal are of mixed law and fact.
3. The appellants/applicants’ application for leave to appeal filed at the lower court was set-down for hearing on 23rd February, 2004 by which date, time within which to appeal had lapsed.
4. The said appellants/applicants’ application to appeal which was set down for hearing on 2nd February, 2004, was dismissed on the same date by the lower court for being out of time.
5. Leave of this Honourable Court is now necessary for the appellants/applicants’ appeal to be competently filed.
6. The substantive suit at the lower court has been fixed for March 11, 2004, for hearing.
7. Taking further proceedings in this matter at the lower court would prejudice the appellants/applicants as they would not have a fair hearing.
8. Taking further proceedings in this matter would foist a situation of helplessness on the Court of Appeal and render the appeal nugatory.
9. It will take a very long time for records to be compiled at the lower court and briefs of argument filed by the parties.”

While moving the motion, learned Senior Counsel for the applicants, Chief Bayo Ojo said that the motion was supported by a Six paragraph affidavit sworn to by Toyin Aladegbami and accompanied by Seven exhibits (Exh. ‘A’ – ‘G’). Two further affidavits in support of the motion were also filed by learned SAN for the applicants.

Learned SAN relied on all the depositions in the affidavits and the accompanying exhibits. The learned SAN submitted that it became necessary for the applicant to seek leave of Court of Appeal as the appeal is on mixed law and fact. Learned SAN said that they complied with the provision of Order 3 rule 3(4) of the Court of Appeal Rules, 2002, which makes it mandatory to apply to the lower court first. The lower court dismissed their application and he now seeks for the leave from this court.

Learned Senior Counsel refined this court to paragraphs (K) and (L) of the affidavit in support. On the reasons for the delay, the learned SAN referred us to paragraph 4(O) and (P) of the affidavit in support. He cited also section 25(3) of the Court of Appeal Act; paragraphs 4(e) – (j) and (p). Learned SAN argued that exhibit ‘A’ attached to the affidavit in support contains arguable grounds of appeal among which is a ground challenging the competence and jurisdiction of the lower court. He cited and relied on Re: Alase (2002) 10 NWLR (Pt.776) 553 at 565. Learned SAN urged us to grant his prayers (a) – (d) of the motion.

On prayer (e) – stay of further proceeding by the lower court, learned SAN cited the cases of Owena Bank (Nig.) Plc. v. Olatunji (1999) 13 NWLR (Pt.634) 218 and Eze v. Okolonji (1997) 7 NWLR (Pt.513) 515, where conditions for granting a stay of proceedings have been discussed. There are arguable grounds of appeal and exhibit 4(g) clearly contains such grounds. He referred to paragraphs 4(1) of the affidavit in support. There are special circumstances i.e. the lower court did not hear the applicants’ application for leave to appeal. If the lower court is allowed to proceed with the case a situation of hopelessness will be foisted on the Court of Appeal. He urged this court to grant this prayer.

Prayer (f) is for an order directing for a departure from the rules of court so that the appeal can be heard and determined on the bundle of documents attached to the affidavit as exhibit ‘J’. Learned Senior Counsel referred to paragraph 4(bb) and 4(cc) of the affidavit in support. The documents are relevant and sufficient to enable the court to determine the issues in controversy between the parties. Learned (SAN) cited the case of Soleye v. Sonibare (2002) 10 NWLR (Pt.775) 380 at page 394.

Finally, the learned SAN applied to withdraw his prayers (f) and (g) and urged this court to grant his prayers (a)-(e).

As for the respondent, Mr. Ogundele, of counsel, said he was opposing the motion. He said he filed a counter affidavit on 8/3/04. He relied on all the averments in the counter affidavit. In making his submissions, learned Counsel for the respondent argued that on prayers (a) – (d), there is no indication as to which ruling or decision of the trial court this application had to do with. The grounds of appeal did not help matters either. Again, the prayers themselves are not clear and unambiguous. Learned Counsel referred to Nwankwo v. Nwankwo (1995) 5 NWLR (Pt. 394) 153 and Order 3, rule 3(1) of the Court of Appeal Rules.

The argument that the applicant could not secure a Certified True Copy of the lower court’s ruling could not be a reason for not appealing in time. Learned Counsel referred to the case of Federal Housing Authority v. Abosede (1998) 2 NWLR (Pt.537) 177, particularly at page 187. On the substantiality of the grounds of appeal, learned Counsel submitted that it is not sufficient to merely raise an issue bordering on competence and jurisdiction of the trial court – Eze v. Okolonji (1997) 7 NWLR (Pt.513) 515 at 530. Further, the grounds filed by the applicant are frivolous, vexatious and have no substance vis-a-vis the reference made to the Court of Appeal.

Learned Counsel referred to paragraph 6(1) and (2) of the counter affidavit where it was deposed that what was adjourned for hearing was the application for reference to the Court of Appeal on the originating summons and the substantive originating process. He referred to: Savannah Bank Ltd. v. Abdulkadir (1996) 4 NWLR (Pt.443) 460 at 468; Obikoya v. Wema Bank Ltd. (1989) 1 NWLR (Pt.96) 156.

On the issue of stay of proceeding, learned Counsel submitted that as no leave has been granted by this court to appeal, the application is premature and has no basis as there can never be an application for stay unless there is a subsisting appeal. He referred to Koku v. Koku (1999) 8 NWLR (Pt.616) 672 at 683; Consolidated Oil Ltd. v. Sumeroidd (Nig.) Ltd. (1998) 8 NWLR (Pt.561) 184 at 192; Order 3 r. 3(4) of the Court of Appeal rules. The earlier application by the applicant before the lower court was abandoned. Learned Counsel for the respondent finally urged this court to refuse the application in its entirety.

In his reply on points of law, learned Senior Counsel for the applicants replied that the lower court refused to hear the application and this makes for a special circumstance. In the case cited by learned Counsel for the respondent, i.e. Federal Housing Authority v. Abosede (supra), learned Counsel for the applicant in that case did not appeal timeously for the ruling of the trial court whereas in this case, applicant applied for the ruling timeously on the very day the ruling was delivered. Let me say from the start that prayers (f) and (g) of the applicants’ motion, withdrawn by the applicants, are hereby struck out.

In an application of this nature where the reliefs sought include, among others:-

(a) extension of time to seek leave to appeal;

(b) leave to appeal; and

(c) extension of time to file notice and grounds of appeal, the time honoured principle of law is that two conditions must simultaneously be satisfied. These are:-

1. good and substantial reasons for failure to appeal within the prescribed period; and
2. grounds of appeal which prima facie show good cause why the appeal should be heard.

See: Order 3 rules 4(1) & (2) of the Court of Appeal Rules 2002; Ibodo & Ors. v. Enarofia & Ors. (1980) NSCC ‘Vol. 12 at 195; (1980) 5-7 SC 42 at 51; Mobil Oil (Nig.) Ltd. v. Agadaigho (1988) 2 NWLR (Pt.77) 383; Doherty v. Doherty (1964) 1 All NLR 299; (1964) NMLR 144.

In considering the first requirement, let me look at the depositions made in the supporting affidavits in respect of the motion. Learned SAN argued that they acted timeously. Reference was made to paragraph 4(e), (j), (o) and (p) of the affidavit in support and section 25(3) of the Court of Appeal Act. The paragraphs referred to above read as follows:

“4. …

(e) That the application for leave made to the lower court was filed on 16th February, 2004, which is clearly five days before 20th February, 2004, which is the time limited to file same. A copy of the said application dated 13th February, 2004 is attached hereto and marked exhibit ‘B’.

(j) That effort to persuade the court to bring t\:1isdate forward proved abortive.

(o) That it was on Monday 23rd February, 2004, when the application for leave was heard that a certified true copy of the ruling of 6th February, 2004, was released to the appellant/applicants’ counsel. A copy of the said certified true copy of the ruling and the revenue collector’s receipt dated 23rd February, 2004 for the sum of N80 paid for the said ruling are attached hereto and marked exhibit ‘E’ and ‘F’ respectively.

(p) That it is not through any fault of the appellants/applicants that leave was not filed and obtained at the lower court within the 14 days limited by the rules and Act of this Honourable Court.”

Section 25 of the Court of Appeal Act, 1976 (the ‘Act’ for short) and now contained in Cap. 75 of the Laws of the Federation, 1990 (LFN) provides:

“25(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of court within the period prescribed by the provision of sub-section (2) of this section that is applicable to the case.

(2) The periods for giving of notice of appeal or notice of application for leave to appeal are:

(a) In an appeal in a civil cause or matter, Fourteen days where the appeal is against an Interlocutory decision and Three months where the appeal is against final judgment.

(b) …(Italics supplied by me)

Therefore, for the purpose of an appeal emanating from the Federal High Court, the High Court of a State or any other court tribunal of coordinate jurisdiction with the High Court, the period within which to appeal to this court, but excluding the day when judgment/ruling was delivered, depending on the nature of the appeal, is broadly classified into two:

(a) Three months (90 days) in case of appeal on FINAL decision of the court;

(b) Fourteen (14) days in case of appeal on Interlocutory (decisions which do not settle the issue in controversy finally) and those decisions which by the requirement of the constitution must be filed by leave of the High Court or of this court (appeal with leave, i.e. appeal not as of right).

See: Akeredolu & Ors. v. Akinremi (1988) 11 SC 74; (1989) 3 NWLR (Pt. 108) 164.

Thus, by the provisions of section 242(1) of the Constitution, an appeal lies with the leave of the High Court or of the Court of Appeal from any decision in which there is no appeal as of right under section 241(1). And for the avoidance of doubt, any decision which does not fall within any of the cases listed in section 241 (1) is only appeacable with leave of court. In the case of Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt.91) 622, the Supreme Court held that section 242(1) is meant to cover the following situations:

(i) appeals in interlocutory decisions of the High Court involving facts or mixed law and facts.

(ii) appeals in final decisions of the High Court in “double appeals” involving facts or mixed law and fact.

Another set of cases in which an appeal lies with leave is where the decision of the High Court was made with the consent of the parties or decision as to costs only. Where the High Court exercised its appellate jurisdiction, i.e. “double appeal”, appeal to this court, by the combined effect of sections 241(1)(a) and 242(2) of the Constitution, is by leave. See Aqua Ltd. v. Ondo State Sports Council (supra); Nasiru v. Chanji (1999) 1 NWLR (Pt.588) 605; Ifeajuna v. Ifeajuna (1999) 1 NWLR (Pt.587) 492.

In the instant matter, the decision for which leave is being sought to appeal is premised on grounds involving some questions of mixed law and fact. See paragraph 6(4) of the affidavit in support. The decision as per the submission of learned SAN is a ruling (see paragraph 4(a), (f) of the affidavit in support). See also exhibit A, the draft notice and grounds of appeal. This makes the decision to be interlocutory. This has thus been caught up by section 242(1) of the Constitution and section 25(a) of the Act.

As this court is now seised of the documents placed before it for the purposes of determining this application, the court is entitled to have a look and closer examination of such documents. On pages 203-204 of exhibit ‘H’ which is the bundle of documents intended to form the record of appeal, there was filed a motion on notice before the lower court for “leave to appeal against the ruling” of the lower court delivered on the 6th day of February, 2004. The motion was dated 13th of February, 2004 and filed at the lower court’s registry on the 16th of February, 2004. The motion was heard and determined on the 23/2/04. The learned trial Judge dismissed the motion.

Now, considering the constitutional provisions and the rules of court cited earlier, the affidavit evidence placed before the lower court, which the learned trial Judge also cited as well, it surprises me to note how tactfully the learned trial Judge shut out the applicants from exercising their constitutional right to appeal against his ruling. It was clearly deposed to in the affidavit in support of motion for leave to appeal, by one Gabriel Ocheni Salihu, an Assistant Director, Civil Litigation, Ministry of Justice, Lokoja, as follows:

“4. That the 2nd defendant/applicant informed me in his Chambers at Lokoja at about 3.30 pm on the 6th February, 2004 and I verily believe:

(i) That the defendants/applicants are all dissatisfied with the ruling of this Honourable Court dated the 6th February, 2004, whereby his Lordship S.O. Ochimana, J. refused to disqualify himself from adjudicating over the case. A certified true copy of the ruling is hereby annexed and marked exhibit ‘A’.

(ii) That the defendants/applicants have instructed their leading counsel Chief Bayo Ojo, SAN to file an appeal against the decision of this Honourable Court.

5. That Chief Bayo Ojo, SAN leading Counsel for the defendants/applicants informed me the following day at his Chambers situate at No. 10, Ahmadu Bello Way, GRA, Ilorin on the 7th day of February, 2004, at about 11.00 am and I verily believe:

(i) That the notice of appeal has been formulated. A copy of the draft of notice of appeal is hereto annexed and marked exhibit ‘B’.

(ii) That some of the grounds of appeal involved issues of mixed law and fact.

(iii) That leave of this Honourable (sic) must be sought and obtained before the grounds of mixed law and fact can be competently filed.

6. That it will be in the interest of justice that this application be granted to enable the applicants exercise their constitutional right of appeal.”

Below is the finding of the learned trial Judge on the application:

“The respondents/applicants brought a motion dated 13th February, 2004 and filed on the 16th February, 2004, praying for leave of the Honourable Court to appeal against the ruling of this Honourable Court delivered on the 6th February, 2004 to the Court of Appeal. The said motion was fixed by the court for hearing today, being 23/2/2004.”

In dismissing the application, the learned trial Judge stated, among his reasons, the following:

“The learned Senior Advocate for the defendants/appellants should know and ought to know that in the present circumstance, the application for leave to appeal to the Court of Appeal should have been filed early enough, instead of waiting for ten days before filing it, knowing very well that the file may not get to me on the date of filing and that the opposite party must be served with a copy of the application and has at least twenty-four hours to respond by way of filing counter-affidavit. From the above, it can be seen that the remaining four days left are not enough for this court to have disposed of the present application within the remaining four days left after the filing, It is worthy of note that the two leading Senior Advocate of Nigeria are not residing in Kogi State, but in Plateau and Kwara State respectively and the processes have to reach them at their addresses. This is why Chief Ojo, SAN’s blame on this Honourable Court is uncalled for. He is the architect of the present laxity which is being used against him.”

Yes, it is correct, as rightly observed by the learned trial Judge that learned Counsel for the applicants filed on behalf of the applicants their notice of appeal on the 16th of February, 2004. It is also correct that the learned trial Judge delivered his ruling sought to be appealed against, on the 6th day of February, 2004. Thus, the applicants had already taken 10 days out of the 14 days permitted for the request for leave to file the appeal. Four more days were clearly left for the applicants within which to seek leave to appeal. The applicants filed within time, their application for leave to appeal. In my view, the applicants did what they were required to do by the law. The lower court ought to have heard the motion on its merits as it had no cogent reason for refusing to hear the application.

I think that once a statute has set out a time limit for the performance of an act, the act must be taken to be fully performed, if it is carried out within the last second of the time limited by the statute.

It is not within the contemplation of the law, what happens thereafter. In this appeal, it was not for the lower court to reason that it would not know when the file on the subject matter would be brought for its consideration. It is always the duty of the court to exercise control over all matters brought for its attention. Again, as an umpire, it is not its duty to be in the defence of the other party (i.e. respondent). A number of correspondences have indicated that the learned SAN for the applicants took all the steps necessary, including writing to the registrar of the lower court reminding the court of the non-availability of the certified true copy of its ruling of 6/2/04. (See pages 202 and 247 of exhibit H).

Although, inability to secure a copy of a judgment or ruling, generally, cannot be a reason for failure to file an appeal within the time prescribed by law, the applicants in this case did file their application for leave to appeal within time. And by the provision of our Order 1 rule 2 of our Rules, an appeal includes an application for leave to appeal. The lower court should have heard the motion for leave to appeal as all conditions for filing in the motion had been complied with by the applicants. Refusing to hear such validly filed applications will tantamount to refusing the applicants right to appeal.

This is a very serious obstacle for the applicants and potential appellants. Such dismissal is as good as dismissal of the appeal if it were before an appeal court. See Agu v. NICON Insurance Plc. (2000) 11 NWLR (Pt.677) 187. Furthermore, granted that the learned SAN for the applicants was to blame, as the lower court found him to be the “architect of the present laxity which is being used against him,” it has been stated on several occasions by the Supreme Court and this court that a client or litigant should not suffer for the fault, negligence or inadvertence of his counsel.

A court does not, in a matter where the fault is traceable to the counsel and not to the litigant, punish the latter for a fault committed by the former, i.e. the sin of a counsel cannot be visited on his client. See: Iyalabani Co. Ltd. v. Bank of Baroda (1995) 4 NWLR (Pt.387) 20; Bowaje v. Adediwura (1976) 6 SC 143; Alagbe v. Oluwo of Iwo & Ors. (1978) 1 LRN, 55; Akinyede v. Appraiser (1971) 1 All NLR 162; Doherty v. Doherty (supra); Ojora v. Odunsi (1964) 1 All NLR 55; (1964) NMLR 12; Ahmadu v. Salawu (1974) 1 All NLR (Pt.II) 318.

Accordingly, reliefs (a) – (c) of the application are hereby granted in the following terms;

(i) Time is extended for the applicants to today to apply for leave to appeal against the ruling of High Court of Justice, Kogi State, holden at Lokoja in Suit No. HCC/01/04, delivered on the 6th day of February, 2004.

(ii) Leave is granted hereby to the applicants to appeal against the ruling stated in (i) above.

(iii) Time is extended by 7 days from today for the applicants within which to file the notice and grounds of appeal.

Prayers (d) and (e) of the application are hereby refused for the following reasons:

(a) There is no dispute that there was no leave, no extension of time, etc, granted by the lower court to the applicants to file their notice and grounds of appeal. So, no notice or grounds of appeal were filed before the lower court.

(b) Here in our court, the notice and grounds of appeal annexed to the affidavit in support were tagged ‘exhibit A’. In paragraph 4(b) of the affidavit in support, it was deposed to as follows:-

‘That the notice of appeal has been formulated. A copy of the draft of notice and grounds of appeal is hereto attached and marked exhibit ‘A’.”

The notice of appeal and the grounds contained therein, remained as exhibits. No evidence that they were filed. The notice of appeal still remains to be an exhibit. Courts of law do not deem exhibits except where they were initially, validly filed, but exhibited only to show the court that such exhibits were separately filed. It is general knowledge within the legal circle that notice of appeal is filed in the registry of the court below. An appeal is deemed to have been brought upon filing of the notice of appeal in the registry of the court below. See IBWA v. Pavex International Co. (Nig.) Ltd. (2000) 7 NWLR (Pt. 663) 105; (2000) 4 SCNJ 200 at 227.

This is also the provision of our court’s rules, Order 3 rule 5. Also, the Supreme Court has stated in the case of Incar (Nig.) Plc. v. Bolex Ent. (Nig.) Ltd. (1997) 10 NWLR (Pt.526) 530 at 538 E-F that:

“A notice of appeal filed out of time will require a prayer for enlargement of time within which to file such notice of appeal. It is only after that prayer is granted that the court may deem the notice of appeal already filed as duly and properly filed. See Odofin & Ors. v. Agu & Or. (1992) 3 NWLR (Pt.229) 350 and Akeredolu & Ors. v. Akinremi (1986) 1 NSCC (Pt.1) 581 at 592; (No.2) (1986) 2 NWLR (Pt.25) 710.

This is the position even if the appellants’ notices of appeal already filed were filed within time and contained some grounds of law.”

The predicament of the applicants in this application in relation to this issue of deeming is that they have nothing on ground to be deemed yet.

(c) The effect of the provisions of Order 3 rules 2, 4 and 5 of the Court of Appeal rules is that whether a notice of appeal is filed within time or in pursuance of an extension of time granted by the court, the filing must be in the court below, which is defined in Order 1 rule 2 of the Rules of any court or tribunal from which the appeal emanates and not in the Court of Appeal. An appeal is only deemed brought by virtue of Order 3 rule 5 of the rules, when the notice of appeal is filed in the registry of the court below. Thereafter, the notice of appeal is served on the other party/parties to the appeal by the registry of the relevant court below.

See the case of Muhammed v. Kayode (1997) 11 NWLR (Pt.530) 584 at 595, where the applicant after obtaining an extension of time within which to appeal filed his notices of appeal in the Court of Appeal instead of filing same in the court below. My learned brother, Salami, JCA, took pains to expatiate at length the proper position of the law. See also: Akinsipe v. Adetoroye (1999) 9 NWLR (Pt.617) 162. This is why I find it difficult to accede to the relief sought by the learned SAN for the applicants in his relief No. (d) which asked for a deeming order.

(d) Relief(e) asks for stay of further proceedings of the suit in the lower court pending the determination of this appeal. This is yet another area where the discretion of the court is invoked. Such judicial discretion is only exercisable when conditions laid for the consideration of such a prayer are met. One fundamental condition is that an order for the stay of proceedings before a lower court cannot be made by the appeal court, unless there subsists a proper appeal before that court. Intercontractors (Nig.) Ltd. v. U.A.C. (1988) 2 NWLR (pt.76) 303.

Further, the need for a stay of proceedings arises generally, where a trial Judge rules on an interlocutory point. Any party aggrieved by that ruling may appeal against it and after appealing the party may apply to that court for a stay of proceedings pending appeal. If refused, the party may apply for same to the Court of Appeal. There is no evidence of appeal yet before this court. This stripes this court of jurisdiction on that relief. That was why I found it necessary to strike out that relief. Kigo (Nig.) Ltd. v. Holman Bros (Nig.) Ltd. & Or (1980) 8-11 SC 43.

Finally, this application succeeds in part and the terms contained in prayers (a) – (c) are granted. I order parties in the appeal to bear their own costs.

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Other Citations: (2004)LCN/1542(CA)

Rabe Nasiru V. Sule Ali Bindawa & Ors (2004)

LawGlobal-Hub Lead Judgment Report

JOSEPH JEREMIAH UMOREN, J.C.A.

The appellant and the respondents contested for the legislative seat of the Mani/Bindawa Federal Constituency of Katsina State, on 12th April, 2003. They contested on the platforms of the People Democratic Party (P.D.P.) and the All Nigeria Peoples Party (ANPP) respectively.

At the conclusion of the election, the 1st respondent was declared the winner and returned as duly elected.

The appellant was not satisfied with the results declared. He proceeded to the Governorship and Legislative Houses Election Tribunal, Katsina, and on the 14th May, 2003, filed a petition challenging the return of the 1st respondent as the winner of the election of 12th April, 2003, into the House of Representatives of the National Assembly for the Mani/Bindawa Federal Constituency of Katsina State.

The 1st respondent, on being served with the petition, entered a conditional appearance and later filed his reply incorporating 10 grounds of objection and a motion on notice praying the tribunal to strike out the petition. The tribunal considered the objection first by virtue of paragraph 49(5) to the First Schedule to the Electoral Act, 2002, and ruled that the petition was incompetent and struck it out.

Dissatisfied with the ruling of the tribunal, the appellant has now appealed against that ruling to this court as per his notice and grounds of appeal at pages 94 – 101 of the record.

In this court, the 1st respondent raised a preliminary objection to the competence of the notice and grounds of appeal dated 24th June, 2003 and filed on 25th June, 2003.

The objection is taken on four grounds as follows:
i. Particular (a) to ground 1 is vague and conveys no meaning; while.
ii. Particulars (f) and (g) to ground 1 are argumentative.
iii. Ground 2 of the grounds of appeal and its particulars merely narrative, argumentative repetitive.
iv. Ground 4 as couched is not cognizable in law. The particulars thereto are unwieldy, narrative, argumentative and prolix.

He further prayed the court to strike out all issues formulated in the brief based on the said incompetent grounds and particulars.

He further prayed the court to strike out “issue C” or “issue No.3” in the appellant’s brief for not being covered by any ground of appeal.

In the alternative learned Counsel urged the court to strike out the entire brief for being confusing, contradictory, misleading, unwieldy, verbose and not in conformity with the Court of Appeal Rules regulating preparation of briefs of arguments.

Pursuant to Order 6 of the Court of Appeal Rules, the parties filed their respective briefs of argument. Appellant filed his brief and reply brief. The first respondent filed his 1st respondent’s brief while 2nd – 8th respondents filed their brief.

The appellant distilled the following issues in his brief:
“(a) Whether the motion on notice of preliminary objection of the 1st respondent dated 28th May, 2003, is competent.
(b) Whether the petition is incompetent by reason of alleged non-compliance with paragraph 4(1)(c) and section 133(2) which rendered the tribunal without any power or discretion than to strike it out.
(c) Whether considering the grounds, facts in support and the prayers, the petition is void and without cause of action.”

1st respondent framed the follwing issues:
“(i) Considering the state of the petition, the objection taken to it and the provisions of the Electoral Act, 2002, whether or not, the lower tribunal was right in dismissing the petition grounds 2, 3 and 4.
(ii) Whether or not, the motion filed by the respondent praying for the dismissal/striking out of the petition was competent – ground 1:”

2nd – 8th respondents adopt and rely on issues as formulated by the 1st respondent.

Since the 1st respondent filed a notice of intention to raise preliminary objection, it is apt at this stage to examine the issues raised in the notice of preliminary objection. The objection affects ground 1 of the grounds of appeal, particulars (a), (d), (f) and (g) ground 2 and ground 4.

The 1st respondent started off with particular (a) to ground 1 of the grounds of appeal. The complaint of the 1st respondent here is that the particulars simply recast or reproduce what the learned Tribunal said in part of its ruling and nothing more.

For ease of reference, I think I should reproduce all the grounds of appeal and their particulars. They are as follows, that is to say:
(1) Ground One

Error in law
The tribunal erred in law, when it acted on its own evidence and evidence of counsel to the 1st respondent from the bar to validate and hold competent the motion on notice dated 28th day of May, 2003.

Particulars of error
(a) The election tribunal on page 4 of its ruling said:
“Upon a view of the motion for preliminary objection, dated 28th May, 2003, it is obvious that it bears a signature that is not that of Chief Wole Olanipekun, SAN. Rather, the signature on it, which signatures is legible enough is that of U. Igunma. However, there is a prefix to the signature and the name of Chief Wole Olanipekun, SAN. That prefix is the word, “for”. This prefix no doubt shows that the signature of U. Igunma is affixed on behalf or on authority of Chief Wole Olanipekun… In fact, the name U. Igunma is the same with that of one of the lawyers, who has been and was in the team of Chief Olanipekun, SAN in this petition. Moreover, learned Counsel for the petitioner, who raised the issue of signature did not in anyway show that the signature was not made by the authority of Chief Wole Olanipekun (SAN) …Consequently; it is the firm view of this tribunal that this motion is competent before it.”

b. There is no legally admissible evidence that the signature on the said motions is that of U. Igunma.

c. By the relevant provisions of the Electoral Act, 2002, and the Federal High Court (Civil Procedure) Rules, 2000, all election tribunal processes for the 1st respondent must be signed by him or his counsel/solicitor.

d. The motion of preliminary objection by which the 1st respondent objected to the competence of the petition, bore on its face, the imprimatur of an unknown person or thing purported to be made on behalf of Chief Olanipekun, SAN as found by the tribunal on 10th June, 2003, in the case of Manir Yakubu v. Umaru lbrahim Tsauri & 7 Ors. petition No. EPT/KTS/01/03 at page 65 thus:
“Upon viewing the motion, it was seen that the learned Counsel did not sign it personally, but it was signed for him by unknown person.”

The motions in the two cases were signed in the same identical manner.

e. It is trite principle of law that delagatus non protest delegare i.e. a delegate, can not himself, delegate. Chief Olanipekun is the agent of the 1st respondent and can not delegate the authentication of the said motion.

f. The burden of delegation of authority to sign the motion was on the 1st respondent counsel, who claimed delegation which they failed to discharge and not on the petitioner as wrongly placed by the tribunal.

g. The election tribunal has no choice in the matter, other than to have declared the process and all that it generated null and void ab initio. A person cannot contract himself out of the requirements of the law.

2. Ground Two

Error in law
The tribunal erred in law, more particularly, having regard to the state of the pleadings, on whom the burden of proof lay and exceeded its jurisdiction, when it held inter alia as follows:
“On issue of scores of candidates, it has been decided that the scores to be stated are the official scores of the Electoral body and not what (sic) petitioner thinks or thought should be the scores …Consequently, this tribunal holds that since there was no official scores of candidates stated which amount to not stating the scores of candidates, the petition has not complied with paragraph 4(1)(c) of the 1st Schedule to the Electoral Act, 2002 and as a result incompetent.” (Italics mine)

Particulars of error
a) The petitioner stated in paragraph 2 of the petition that the returning officer declared that he scored 26,908 and the 1st respondent scored a total of 57,215.

b) The 1st respondent admitted the said averment in paragraph 4 of his reply thus:
“The 1st respondent admits paragraph 2 of petition to the extent that… the scores were actual votes scored and declared and the 1st respondent was actually declared as duly elected. The 1st respondent pleads Form EC8E.”
(Italics mine)

c) It is trite law that the concept of proof anticipates a disputed state of affairs and that which has been admitted as is this instance needs no further proof.

d) It was not the case of the 1st respondent that, what was stated in the petition is not the official scores, but that more than two candidates contested the election and that the names and scores were not stated in accordance with the Electoral Act, 2002.

e) The tribunal exceeded its jurisdiction, where it made out a case of official scores of candidates for the 1st respondent.

3. Ground Three

Error in law
The tribunal erred in law, when it misdirected itself that the improper joinder of the 4th to 7th respondent by amalgamation rendered them no juristic persons which offended section 133(2) of the Electoral Act, 2002, thereby making the petition incompetent and struck out the 3rd to 7th respondents.

Particulars of error
a) The tribunal did not find that the 3rd respondent was improperly joined by amalgamation. Therefore, there was no basis for striking out his name.
b) The identities of each person constituting the class of respondents serialized as 4th to 7th respondents are clearly and properly stated in the petition.
c) The improper serialization of the respondents is a matter of form, which the tribunal could rectify by amendment either on its own motion, or at the instance of the petitioner and not shut out the petitioner by its stance, that non application will be entertained except that of preliminary objections.
d) The 1st respondent has no locus standi to object to the “improper joinder” of the 3rd to 4th respondents.
e) The 1st respondent and the tribunal did not point to one single complaint in the petition made against the said respondents.
f) The improper serialization of 3rd to 7th respondents is a mere irregularity.

Ground Four

Error in law
The tribunal erred in law, when it upheld the submissions of the learned Counsel to the 1st respondent that the petition discloses no reasonable cause of action which rendered it (petition) incurably incompetent and liable to be struck out which it did in that facts of determination of lawful votes were not pleaded, paragraphs 3A and 4 are contradictory and prayers 5A and B render the petition void, because the petitioner prayed to be returned as elected at the same time pray for nullification of the election.

Particulars of error
a) The petitioner pleaded clearly the material facts necessary for the determination of lawful votes in paragraph 4B, C and D of the petition.
b) The issue of votes scored at every polling station, votes that ought to have been credited to the petitioner etc, are matters which the tribunal could have used its power to order for further particulars having regard to the provision of paragraphs 5, 17(1) and 49(1) of the 1st Schedule to the Electoral Act.
c) Paragraph 3 of the petition is different, distinct and separate from paragraph 4 and are in the alternative, having regards to the prayers in support which are in the alternative.
d) Prayers 5A and B are clearly stated to be in the alternative.
e) Alternatively, the tribunal was bound to apply the doctrine of severance on grounds and prayer in the petition and not to hold the petition incompetent.

Particular (a) to ground one is reproduced elsewhere in this judgment. The particulars simply reproduce what the election petition tribunal said. We are not told what is wrong with what the tribunal said. In other words the particular has nothing to relate it to the complaint in ground one. The particular appears dangling in the air without anything to anchor or connect it to the appellant’s complaint.

In his reply, the appellant in his argument at paragraphs 1.03 of his reply brief, supplies credence to the 1st respondent’s argument. Here again, instead of taking the issues one by one as treated by the 1st respondent, the appellant lumps all issues in paragraphs 2.4, 2.5 and 2.9 of 1st respondent’s brief together. The point is, if reliance is to be placed on Obembe v. Ekele (2001) 10 NWLR (Pt. 722) 677 at 689 paragraphs A -B as submitted by the appellant, has he brought out an issue of law that arises for consideration? The purpose of grounds of appeal is to give the other side an opportunity of knowing the case they have to meet on appeal. N.I.P.C. Ltd. v. Thompson Organization (1969) 1 All NLR 138.

A ground of appeal that does not satisfy this criterion is in no way competent and arguable. In the decision in Obembe v. Ekele (supra) the court held that a ground of appeal being argumentative alone is not sufficient to deny a right of appeal to the appellant. But in this appeal, the particulars did not only make the ground argumentative but also prolix, vague etc. as canvassed by the 1st respondent. The appellant did not argue that there is an issue of law that arises for consideration and the court is not allowed to descend into the arena and take up gloves on his behalf.

An appeal is a reflective medium for challenging a judicial decision, where all cards are laid on the table for a calm and dispassionate review and not a circus for scare mongering where an appellant can stir up the hornet’s nest or bluff his way through with a display of high fatupin grounds of appeal as a show piece of hollow strength to test a palpably ridiculous claim see Ibrahim v. Balogun (1999) 7 NWLR (Pt. 610) 254.

For avoidance of doubt, an appeal is not decided on a litany of grounds of appeal. This, notwithstanding that there is no limitation on the number(s) of grounds of appeal, they must be couched and framed concisely as provided for by Order rules 1(2) and (3) of the Court of Appeal Rules, 1981 (as amended) Engineering Enterprises v. A.-G., Kaduna State (1987) 2 NWLR (Pt. 57) 381; Aliyu v. Aturu (1999) 7 NWLR (Pt. 612) 536; Universal Vulcanising (Nig.) Ltd. v. ljesha United Trading & Transport Co. Ltd. (1992) 9 NWLR (Pt. 266) 388.

The 1st respondent raised objection in respect of particular (a) to ground 1, particular (d) to ground 1; particulars (f) and (g) to ground 1. In the same vein the 1st respondent attacked ground 2 as couched and particulars (c), (e), (b) and (d) to it.

There is in my very respectful view, nowhere that the appellant has answered their objection seriatim except to lump them together and make it difficult to see wood from trees.

At page 4 paragraph 2.8 of the appellant’s brief, the 1st respondent objected to the appellant’s ground 4 of the grounds of appeal in this way:
“2.8. As couched, ground 4 contravenes the unambiguous provision of Order 3; rule 2(2) of the Court of Appeal Rules. Apart from the fact that this ground erroneously alleges error of law and misdirection, it is completely, unwieldy and narrative. He relied on Idaayor v. Tigidam (1995) 2 NWLR (Pt. 377) 359; Geosource Ltd. v. Biragbara (1997) 5 NWLR (Pt. 506) 607 at 616.
2.9. Almost all the particulars supplied under ground 4 are argumentative, if not narrative, particularly particulars (b), (c) and (e) thereof.
1.04. In response to the argument contained in paragraph 2.8 of the 1st respondent’s brief (…) it is submitted that one is at a loss as to where the learned SAN, with all due respect got the idea that the said ground alleged error of law and misdirection.”

For ease of reference he reproduces ground 4 without particulars elsewhere in this judgment.
Learned appellant’s counsel went further to submit that the said couched. I am unable to appreciate how the particular supports the ground of appeal. Particular (d) to ground 1 suffers from the same weakness as particular (a) thereto. They cannot, without more support a ground of law as ground 1 was intended to be. With humility, I would wish to think that a ground of appeal is a ground of law, when it questions a misunderstanding by the lower court or tribunal of the law or a misapplication of the law to the fact already proved or admitted.

A ground of appeal on the other hand, that questions the evaluation of facts by the lower court or tribunal before the application of law is a ground of mixed law and fact. See Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484.

As the principles and manner in which a Judge ought to exercise his discretion in a particular case is a question of fact depending on facts and circumstances of each case, whether or not he exercises it rightly in any particular case, is at least a question of mixed law and fact. See Ifedioralz v. Ume (1988) 2 NWLR (Pt. 74) 5.

On the foregoing, i am unable to appreciate or conjecture how particulars given in (a), (d) and other of ground could support a ground of pure law.

It is important to state also, that since particulars are unrelated to the ground(s) of appeal, issues formulated therefrom are consequently unrelated to the ground. Grounds of appeal must arise from the judgment. In Saraki v. Kotoye (supra) Karibi-Whyte, JSC at page 345 said:
“It is a well settled proposition of law in respect of which there can hardly be a departure that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision.”

Particulars (a) and (d) of ground 1 which are inseparable from the said ground are an attack on the obiter dicta in the case and not the ratio. The decision in Hambe v. Hueze (supra) is unhelpful to the appellant.

On issue No.3, I am unable to see in the record where the tribunal held the petition to be “void”. I have seen “without cause of action” but not “void.” The petition was struck out because it disclosed no cause of action, not because it was void. The addition by the appellant of the word void alters the import of the judgment in a way. Cause of action is defined in Stroud’s Judicial Dictionary as the entire set of circumstances giving rise to an enforceable claim.

To our mind, it is, in effect, the fact or combination or facts which gives the plaintiff his cause of complaint and, the consequent damage. As Lord, Esher put it in Cooke v. Gill (1873) L.R. 8 C.P. 107 and later in Read v. Brown (1889) 22 Q.B. 128 (CA). It is every fact that it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. See also Kusada v. Sokoto Native Authority, S.C. 131/68 delivered on 13th December, 1968, where the definition in Read v. Brown (supra) was referred to with approval at page 22 1. However, when a thing is void, it does not exist, you cannot put something on nothing, it will just not stand.

It is my view that the two words should be used economically; not interchangeably.
The mix-up by the appellant in numbering his issues as (a), (b) and (c) in one breath and (1), (2) and (3) in another was enough to confuse the mind of a reader. But since the 1st respondent acquiesced in it, he is bound by it and I make no issue of the mix-up.

The reasons given by the appellant for the slipshod in his brief is not tenable. There is no excuse for one to bite more than one can chew.

Even if the appeal were to succeed on ground 3, having been dismissed on three grounds, there would be no chance of its succeeding. Ground 3 alone, if argued cannot help the appeal. It is a waste of judicial time to go into it as it cannot by itself sustain the appeal.

On the whole, from the foregoing analysis of facts and law, it is my respectful view that the preliminary objection succeeds. The appellant’s brief based on the ground of appeal fails and is struck out. The appeal goes with it. Each party to bear its costs Since 2nd to 8th respondents adopted 1st respondent brief, all the briefs are considered together.

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Other Citations: (2004)LCN/1541(CA)

Mrs. Comfort Ogbogoro V. Christopher Omenuwoma & Anor (2004)

LawGlobal-Hub Lead Judgment Report

AMINA ADAMU AUGIE, J.C.A.

The applicant is praying this court for an enlargement of time, within which to appeal against the judgment of Hon. Justice I.E. Ogbodu, delivered on 22nd July, 2002, in suit No.HCO/5/87: Christopher Omenuwoma v. Comfort Ogbogoro & Mrs. Queen Omenuwoma; for an extension of time within which to file the notice and grounds of appeal against the said judgment. The application is supported by a 20 paragraph affidavit, sworn to by the 1st respondent wherein she deposed to the following facts in paragraphs 2 to 19:

2. That the plaintiff filed suit No. HCO/5/87 against me and his wife as 1st and 2nd defendants respectively, in High Court of Justice, Oleh, in 1987, whereby he claimed damages for detinue.

3. That in my defence, I counter-claimed for forfeiture of plaintiff’s vehicle deposited with me as a pledge.

4. That the case went de-novo several times before a warrant was given to Hon. Justice I. E. Ogbodu to hear and determine the case, whereupon his Lordship was hearing the case while sitting in High Court of Justice, Ogwashi-Uku in Delta State.

5. That Hon. Justice I. E. Ogbodu delivered judgment in the case on 22nd July, 2002. I am dissatisfied with the judgment. John Omonosan Izioma, Esq., advised me I verily believe that I have three months within; which to file my notice and grounds of appeal and I instructed him to file an appeal against same.

6. That I was informed by my said counsel and I verily believed that he demanded for a copy of the said judgment from the clerk of court on 22nd July, 2002 and he was informed by the clerk of court and he verily believed that the judgment was read in manuscript and it had not been typed out wherefore there was no copy to give him.

7. I was informed by my said counsel and I verily believe that he took down notes, when the judgment was being delivered, from which he formulated some grounds of appeal.

8. That my said counsel advised me and I verily believe that the grounds of appeal formulated by him, raise issue and/or questions of mixed law and facts and, it is necessary to obtain leave of the trial court, to appeal against the said judgment and I give him instruction to file same into High Court of Justice, Oleh, sitting at Ogwashi-Uku.

9. That on 2nd August, 2002, shortly before the court went on vacation, I accompanied my said counsel to High Court of Justice, Ogwashi-Uku, where we filed application for leave to appeal, stay of execution and deeming the attached notice and grounds of appeal as duly filed and served. A copy of the motion for leave to appeal and the affidavit in support is attached hereto and marked as exhibit ‘IZO’.

10. That I am informed by my said counsel and I verily believed that since after court vacation, he had checked in the High Court Registry, Ogwashi-Uku on several occasions and the said application for leave was not fixed for hearing. It was after several more visits by my counsel that the motion was fixed for hearing on 25th November, 2002.

11. That on 25th November, 2002, counsel to the plaintiff/respondent in the said motion applied for and obtained an adjournment on ground that he heard an announcement over the radio that Delta State Chief Judge was visiting the Ogwashi-uku prison on that day. When the court told him that Prison visit comes up early in December, 2002, plaintiff replied that he made a mistake as to date and he was not prepared to go on. The matter was then adjourned to 27th January, 2003.

12. That on Saturday the 25th January, 2003, I met my said counsel in chambers to remind him of the date for the hearing of the motion for leave to appeal and he informed me, and I verily believe that while preparing his arguments on the motion, he found no leave required to appeal against a final decision such as the one I seek to appeal against.

13. That my said counsel also informed me, and I verily believed him that he did not advert to the fact that the decision appealed against is a final decision; he was pre-occupied by the notice on grounds of appeal, which raise issues of mixed law and facts and by the time he realized that leave of court was not required, the three months limited by law within which I can file my notice and grounds of appeal in the trial court has elapsed.

14. That I am advised by my said counsel and I verily believe that only this Honourable court can grant me an extension of time within which to file my notice and grounds of appeal out of time and this application is no sine qua non to the grant.

15. That after several fruitless attempts to obtain a copy of the judgment, I was able to get a certified copy only very recently and a copy thereof is attached hereto and marked as exhibit ‘IZO 1’.

16. That my counsel has also formulated fresh proposed notice and grounds of appeal. The same is now shown to me and attached hereto and marked as exhibit ‘IZO 2’.

17. That I am advised by John Omonasan Izoma, Esq., of counsel and verily believe that there are substantial points of law and facts to be raised in the appeal.

18. That I verily believe that it is in the interest of justice to grant this application, as it will afford me an opportunity to exercise my right of appeal against the said judgment.

19. That I verily believe that plaintiff/respondent will not be prejudiced, if this application is granted as he will equally be afforded an opportunity of being heard on appeal.

The respondent filed a 16 paragraph counter-affidavit, wherein he avers:
4. That judgment was given at the High Court Oleh (sitting at Ogwashi-Uku) Delta-State on 22nd July, 2002, whereupon the court –
i. Ordered the defendants to immediately return to me, Motor Vehicle Peugeot 404, pick up registered No. BD 9447 L or failing which, in the alternative, to pay me its value assessed at N26,000.00.
ii. The sum of N300 per day from 2nd June, 1986 – 31st December, 1989 and N2,000.00 per day from 1st January, 1990 – 22nd July, 2002.

5. That the defendant have not returned the said vehicle to me or paid me its value of N26,000.00 or paid the special damages awarded or any part thereof.

6. That although, the defendant/applicant filed a motion at the High Court, Ogwashi-Uku on 2nd August, 2002, she has not pursued with due diligence that motion which is still pending in that court.

7. That I verily believe that the said motion filed by the defendant/applicant at the lower court on 2nd August, 2002, is just an attempt by her to stop me from reaping the fruits of my judgment.

8. That while that motion is still pending at the lower court, the defendant/applicant brought this motion in this Honourable Court to stall the execution of the judgment given in my favour.

9. That paragraphs 8, 9, 10, 12 and 13 of the said affidavit are neither correct, nor true and are mere attempts to mislead this Honourable Court and deprive me from reaping the fruits of my judgment.

10. That with reference to paragraph 11 of the said affidavit, which is not true, I aver that it was the motion dated 23rd February, 2002, and filed in the lower court on that day by 1st defendant/applicant seeking an order of court to set aside the attachment of her property made on 9th August, 2002, that came up for hearing on 25th November, 2002, and was adjourned to 27th January, 2003, at the instance of my counsel.

11. That the motion filed at the lower court by 1st defendant/applicant of 2nd August, 2002, seeking (1) leave to appeal (2) deeming as properly filed and served, the notice and grounds of appeal and (3) staying execution of the said judgment (exhibit ‘IZO’ in 1st defendant/applicant’s said affidavit) did not come up for hearing on 25th November, 2002 and was never mentioned (sic) by counsel for the defendant/applicant at all and was not adjourned to 27th January, 2003.

12. That paragraph 15 of the said affidavit is neither correct nor true, as the defendant/applicant made no several attempts to obtain a copy of the judgment of the lower court as that judgment was ready long before the lower court went on long vacation and I got my copy in August, 2002.

13. That my counsel Sir (Chief) J. O. Igbrude has advised me and I verily believe him that the so called substantial points of law and facts alleged to be in the grounds of appeal of the applicant are a mere ruse calculated to deceive this Honourable court.

14. That my counsel Sir (Chief) J.O. Igbrude further advised me and I verily, believe him that the motion of the defendant/applicant is incompetent and misconceived.

15. That I verily believe that I shall be highly prejudiced by the grant of the application sought by the 1st defendant/applicant.

In his arguments in support of the application, Mr. J.O. Izoma submitted that the issues for determination are as follows:
a. Whether the reason given by the applicant for failure to file the notice and grounds of appeal in the lower court within time avails her a favourable discretion by the court.

b. Whether the grounds of appeal contained the proposed notice and grounds of appeal attached as exhibit ‘IZO 2’ arises from the judgment of the trial court attached as exhibit ‘IZO 1’ and shows prima fade good cause why the appeal should be heard warranting a grant of this application.

On the 1st issue, he referred the court to paragraphs 5-16 (reproduced above) and submitted that the reason for the failure to file within time is counsel’s error of judgment in filing the motion in the lower court for leave to appeal against a final judgment; when going by section 241 of the 1999 Constitution, leave was not needed to seek leave to appeal. He further submitted that the issue is whether the error of counsel is reasonable in the circumstances as well as the law, and referred to paragraphs 8, 12 and 13 of the supporting affidavit (supra), and Shanu v. Afribank (2000) 13 NWLR (Pt. 684) 392, (2000) FWLR (Pt. 23) 1221 at 1233, to buttress his submission that it was in this case.

He pointed to paragraphs 6 -11 of the respondent’s counter-affidavit, which he contended supports the applicant’s averment that they filed the motion in the lower court erroneously, and urged the court to resolve this issue in the affirmative. On the 2nd issue, he referred to ground 1 of the grounds of appeal in exhibit ‘IZO 2’ which reads as follows-
“The learned trial Judge erred in law, when he failed to resolve the issue of whether it was the plaintiff and his wife, the 2nd defendant, or the 2nd defendant by herself, who approached the 1st defendant in 1985, with a proposal for a joint venture trade arrangement in palm-oil.”

He also referred to the first page of the judgment of the lower court (exhibit “IZO 1”) wherein the learned trial Judge stated as follows:
“It is a controversial point in the case as to whether it was plaintiff and his wife the 2nd defendant, or was it the latter, who by herself approached the 1st defendant in 1985 with a proposal that they should all come together and get into a joint venture for the purpose of collecting palm-oil from the 1st defendant which they would take to northern part of this country to sell and then the profit realized from the proceeds to be shared by all of them.”

Learned Counsel for the applicant further referred to paragraphs 2 and 3 of the supporting affidavit, pointing out that the plaintiff’s claim in the lower court is on detinue and the counter claim is for the forfeiture of the self same vehicle – the subject matter of the detinue. He therefore, submitted that there are substantial points of law to be argued in the appeal, and urged the court to grant the application as prayed.

On his own part, Sir J. O. Ogbrude, learned Counsel for the respondent, submitted that the application is frivolous and incompetent; that by Order 3 rule 4 (a) of the Court of Appeal Rules, to succeed in this application, the applicant must file an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period; and that the so called mistake by counsel in paragraph 6 of the supporting affidavit is unpardonable, therefore it can not form a basis for granting this application – citing Kotoye v. Saraki (1995) 5 NWLR) (Pt. 395) 256, (1995) 5 SCNJ 1; FHA v. Abosede (1998) 2 NWLR (Pt. 537) 117, (1998) 1 SCNJ 133 at 134. Furthermore, that the applicant has not asked the court for the right prayers.

Sir Igbrude’s argument is that judgment in question was given on 22nd of July, 2002, as per paragraph 5 of the supporting affidavit, and the statutory period within which to appeal is three months from the date the judgment was delivered, but that the applicant did not file this application, until 30th January, 2003; and he must pray the court for the three normal “Trinity” prayers because time had expired. It is also his submission that the applicant must first of all seek enlargement of time within which to seek leave to appeal; then leave to appeal; and an extension of time within which to appeal – citing Bolex v. Incar (1997) 10 NWLR (Pt. 526) 530, (1997) 7 SCNJ 194. Further citing – CCRN v. Ogwuru (1993) 3 NWLR (Pt. 284) 630, (1993) 3 SCNJ 54 and Nalsa v. NNPC (1991) 8 NWLR (Pt. 212) 652, (1991) 11 SNCJ 51, he submitted that since two of the prayers are missing, the application is fundamentally defective, and he urged the court to dismiss the application.

Mr. Izoma replied that the “Trinity” prayers will be required and is necessary only where the appeal is not as of right and leave is required, but that the applicant is applying as of right so did not need extension of time within which to appeal. As to the unpardonable mistake as argued by the learned Counsel for the respondent, he replied that the mistake of counsel is unpardonable, if the mistake evinces the intention of counsel to accept the mistake as it is, but when the counsel took a step to appeal but made a mistake, the mistake is pardonable – citing Shanu v. Afribank (supra). It is his view also, that in this case counsel has not gambled, so the case of Kotoye v. Saraki (supra) does not apply.

Now, this court is empowered by Order 3 rule 4(1) of the Court of Appeal Rule, 2002, to enlarge the time provided by these rules for doing anything to which the rules apply, and these rules apply to the time within which to give notice to appeal, leave to appeal, etc. Order 3 rule 4(2) of the said rules provides that-
“Every application for an enlargement of time, in which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie shows good cause why the appeal should be heard”.

See Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350. See also CCB (Nig.) Ltd. v. Ogwuru (supra) see also (1993) 3 NWLR (Pt. 284) 630, where the Supreme Court held that Order 3 rule 4(2) must be read and interpreted conjunctively and not disjunctively. In other words, if the reasons for failure to appeal within the prescribed period are good and substantial, the grounds of appeal must prima facie show good cause why the appeal should be heard. See Ukwu v. Bunge (1997) 51 LRCN 10766 at 10786, (1997) 8 NWLR (Pt. 518) 527, where Belgore, JSC, had this to say at page 543 thereof –
“At any rate, the applicant, in consideration of the whole case, must not be dilatory: the delay in bringing the application must be supported by compelling reasons before the application can be granted; otherwise, the raison d’etre of Order 3 rule 4(2) Court of Appeal Rules would be rendered useless. Rules are made to be obeyed. Thus, the requirement of substantiality of reasons for the delay and pertinence of the ground of appeal are still very relevant in the final considerations.”

In this application, the reason for the delay is appealing against the judgment of the lower court is as stated in paragraph 13 of the supporting affidavit wherein the applicant averred that her counsel did not “advert to the fact that the decision appealed against is a final decision; he was pre-occupied by the notice and grounds of appeal which raise issues of mixed law and facts and by the time he realized that leave of court was not required, the three months limited by law within which I can file my notice and grounds of appeal in the trial court has elapsed”.

To start with, I agree with applicant’s counsel that the “Trinity” prayers will not be necessary in this case as the principle that there must be a union of three prayers for the validity of an application for enlargement of time within which to appeal is applicable only, when such application is combined with application for leave to appeal which is not the situation in this case. See Odofin v.Agu (supra), where the Supreme Court held that where an appeal requires leave of court and time within which to lodge the appeal has also expired, the intending applicant must, in seeking leave to appeal also ask for a prayer for extension of time within which to apply for leave and leave to appeal, and if any of the prayers is absent where required, then the application is fundamentally defective.

See also Ibrahim v. Balogun (1999) 7 NWLR (Pt. 610) 254 and Deen Mark Construction Co. Ltd. v. Abiola (2002) 3 NWLR (Pt.754) 418, wherein it was held that the operation of the rule predicts the premise that leave to appeal is an integral part of the application before the court, and indeed, is indispensable to the application of the rule. In this case, leave to appeal is not required which is the reason hinged on for this application. The applicant claims that her counsel did not address his mind to the fact that leave was not required and therefore, wasted time seeking leave to appeal from the lower court, and in proof thereof, the application for leave before the lower court is attached to the supporting affidavit as exhibit “IZO”, paragraph 7 of which reads as follows:
“I am advised by John Omnonasan Izoma, Esq., and I verily believe that it is necessary to obtain the leave of this Honourable Court to file the appeal, as it raises issues and or questions of mixed law and facts.”

In this regard, I also agree with the applicant’s counsel that the respondent’s counter-affidavit confirms the applicant’s assertion that she filed the said motion before the lower court.
Now, the failure to appeal within time has been attributed to the inadvertence of counsel and even though learned Counsel for the respondent has argued that the mistake is unpardonable, the principle has been well established that negligence or fault on the part of the counsel should not be visited on the litigant.

Ultimately, it is litigants that suffer from the negligence of their counsel, and that is why courts do not normally punish a litigant for the mistake or inadvertence of his counsel, particularly, when the mistake or inadvertence is in respect of procedural matters. In such a case, the discretion of the court, although, always required to be exercised judicially, would be exercised with a leaning towards accommodating the party’s interest and a determination of the case of the merits. See Ogundoyin v. Adeyemi (2001) 13 NWLR (Pt. 730) 403 and NEPA v. Savage (2001) 9 NWLR (Pt. 717) 230. In this case, even though the conduct of counsel leaves much to be desired, there is no denying the fact that the failure of the applicant to appeal against the judgment of the lower court within time, is surely the fault of her counsel.

A litigant plays no part in the filing of court processes. That is solely the responsibility of his counsel. As I said, it is not right to visit parties with punishment arising out of the mistakes or inadvertence or negligence of counsel, see CBN v. Ahmed (2001) 11 NWLR (Pt. 724) 369. It is my view therefore, that the application should be granted as prayed, particularly as I am also satisfied that the grounds of appeal prima facie show good cause why the appeal should be heard. I must also add that in granting this application, I am strengthened by the very apt observation of Nnamani, JSC in Erisi v. Idika (No.1) (1987) 4 NWLR (Pt. 66) 503, as follows-
“The courts are courts of law but may the day never come when they cease to be courts of justice. Substantial justice cannot be done, unless courts of justice strain to ensure that appeals are heard on their merit.”

Today, the weight of judicial opinion is predominantly in favour of the court doing substantial justice rather than undue adherence on rules of court and technicalities. See Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt. 212) 652, and The Vice-Chancellor, ABU Zaria v. Yau Alhaji Ado (1986) 3 NWLR (Pt. 31) 684. It is important that the appeal be heard on its merit. The application is therefore granted as prayed. The applicant is hereby, granted the following orders-
(1) Enlargement of time, till today to appeal against the judgment of Hon. Justice I.E. Ogbodu, delivered on 22nd July, 2002 in suit No. HCO/5/87: Christopher Omenuwoma v. Comfort Ogbogoro & Mrs. Queen Omenuwoma.
(2) An extension of 14 days from today to file the notice and grounds of appeal, against the said judgment.

The respondent is awarded cost assessed at N2,000.00.

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Other Citations: (2004)LCN/1539(CA)

John Agbo V. The State (2004)

LawGlobal-Hub Lead Judgment Report

SUNDAY AKINOLA AKINTAN, J.C.A. 

 

This is an appeal from the judgment delivered by Ekumankama, J. sitting at Ohafia High Court formerly in Imo State but now in Abia State. The judgment was delivered on 24th April, 1991, incharge No. HOH/3C/86. The appellant was arraigned before the court on an information in which he was charged with the murder of one Arua Okpo Onuka contrary to section 319(1) of the Criminal Code, Laws of Eastern Nigeria, 1963, applicable in Imo State. The particulars of the offence are that the appellant, John Agbo, on the 26th day of January, 1985 at Ndi Uduma Awoke, Ohafia in the Ohafia Judicial Division murdered Arua Okpo Onuka.

At the trial, the accused pleaded not guilty to the charge preferred against him. Seven witnesses testified for the prosecution and the accused gave evidence in his defence. But he called no witnesses. Learned Counsel for the parties thereafter addressed the court. The learned trial Judge then reserved his judgment. In the reserved judgment delivered on 24th April, 1991, the learned Judge held that the prosecution had proved its case against the accused.

He accordingly found him guilty of the charge of murder and sentenced him to death by hanging.
The accused was dissatisfied with the verdict and he has appealed to this court. Two original grounds of appeal were filed against the verdict. But with leave of this court, four additional grounds of appeal were added bringing the total number of the grounds of appeal to six.

The parties filed their brief of argument in this court. The appellant formulated the following three issues as arising for determination in the appeal:
“(1) Whether the essential elements of murder and the guilt of the appellant were established beyond reasonable doubt as laid down by section 138(1) of the Evidence Act before he was convicted for murder and sentenced to death.
(2) Whether the appellant was exculpated from criminal responsibility for the death of the deceased by virtue of the provisions of section 24 of the Criminal Code.
(3) Whether the conviction and sentence to death of the appellant was done in accordance with the law.”

The respondent, on the other hand, formulated two issues. The two issues are as follows:
“(1) Whether the charge of murder preferred against the appellant was proved by the prosecution beyond reasonable doubt.
(2) Whether the trial of the appellant was valid in law.”

As I consider the three issues formulated in the appellant’s brief adequately cover those formulated in the respondent’s brief, the issues formulated in the appellant’s brief will be adopted in resolving the questions raised in the appeal.

The brief facts of the case are that the appellant was a 24-year old police constable at the time of the incident. He enlisted into the Nigeria Police on 5th October, 1982 and after a three-month course at the Enugu police training school, he was posted to Uwani police station also in Enugu in January, 1983. His first assignment after passing out from the police training school was as an orderly to the divisional police officer in Uwani, Enugu. His next posting was as an orderly to a lady magistrate also in Enugu. The incident that led to his trial in the instant case took place while serving as an orderly to the lady magistrate, Mrs. Jumbo Ofor.

On 26th January, 1985, the lady magistrate sent the appellant to escort her driver, whom she sent to deliver some bags of cement from Enugu to Arochukwu. The appellant left as directed. He was dressed in his police uniform and carried a berretta pistol loaded with seven rounds of ammunition. There were three of them in the vehicle used in conveying the cement: the driver of the lorry, the driver of the magistrate and the appellant. They delivered the bags of cement at Arochukwu as they were instructed. The incident occurred on their journey back to Enugu. It was at Ndi Uduma Awoke road junction on their way back to Enugu, a Peugeot 504 car driven by the deceased was said to have stopped at the center of the road. The car stopped so as to discharge some passengers it carried. The van in which the appellant was traveling had to stop as the road was blocked by the car driven by the deceased.

The appellant came out of the van and went to the driver (the deceased). He asked him why he blocked the road with his car. An argument between the deceased and the appellant then followed. It was in the course of the exchange of words that the appellant was said to have shot the deceased with the pistol he carried with him. There are three eye-witness accounts of the incident given by three witnesses. Two of the witnesses, PW3 & PW5 were passengers in the car driven by the deceased, while the third (PW4) was the driver of the van in which the appellant was traveling back to Enugu on that day.

The account of the incident as given by Fidelis Onuka Okpogho PW3, a relation of the deceased is inter alia as follows:
“…The deceased was a driver. He carried us from Elu Ohafia Motor Park heading towards Arochukwu. At Ndi Uduma Awoke junction, a passenger wanted to disembark and the deceased driver stopped and cleared on the right hand side outside the tar mark. At this moment a van was coming on the opposite direction from Arochukwu. The van stopped after passing us about 5 metres before our car. All of a sudden, the accused who was dressed in police uniform came out of the van and moved towards us. At the time the deceased driver had gone into his seat in the car to move. The accused came to the deceased and asked him why he parked his car there. The deceased tried to explain, but the accused was pointing to the deceased. And as the deceased was still explaining the accused pulled out his pistol from the scarbald and threatened to shoot the deceased driver. All of a sudden, the accused pointed the pistol behind the left ear of the deceased driver and fired. Blood was rushing out from the nose and ear of the deceased…”

Although, the witness at first denied under cross-examination that there was any struggle between the deceased and the appellant on the day, he however admitted that he observed that the uniform of the appellant was torn when he later saw the appellant at the police station after the incident on the same day. He also later, admitted that the driver and the appellant were struggling over the key to the vehicle and that the appellant had not pulled out his gun at the time they were struggling over the car key.

The second eye-witness account was given by Anthony Nweze (PW4), the driver of the van which carried the cement from Enugu to Arochukwu and in which the appellant was returning to Enugu on the day of the incident. His account of the incident is as follows:
“…At Arochukwu, we unloaded the cement and left for Enugu. On our way back and at a place very near to the Ohafia Army Barracks, the road was narrow. There was a taxi cab which packed on the left, but on its own right hand side. I slowed down to enable me pass the taxi cab on the narrow road. As I slowed down, the accused jumped down and the other person who was in the front, asked him to get into the vehicle for us to go on. I had not passed the taxi cab when the accused jumped down. I was concentrating on my driving. I heard the accused struggling with the people and suddenly, I heard a sound of gun shot…”

The third eye-witness account was given by Rosaline Onuka (PW5) who was also a relation of the deceased and a passenger in the taxi cab. Her account of the incident is as follows:
“…When we got to Ndi Umuma village in the deceased taxi cab there he stopped to drop a woman passenger.
There I saw the vehicle in which the accused was coming from the direction of Arochukwu and they met us where the deceased taxi cab was. The accused person came down and was asking the deceased why he obstructed the road. The deceased replied that he did not obstruct the road. At the time the deceased was standing by the booth of the car. After dropping the woman’s loads he was returning into his taxi cab. The deceased was on the seat of his taxi cab. One of his hands was on the steering, while the other was on the key and the accused pointed his gun at the ear of the deceased and released the shot which killed the deceased.”

The witness told the court under cross-examination that there was a struggle between the appellant and the deceased and it was over the deceased’s car key which the appellant wanted to take from the deceased.

The other evidence presented by the prosecution was from Dr. Iroham Wilson (PW1), the medical doctor who performed a post-mortem examination on the deceased’s corpse. His evidence is very brief and scanty. He said, inter alia, as follows:
“On 26/1/85, I performed a post-mortem examination on the body of Arua Okpo Onuka. The condition of the corpse was fresh, packed in shirt and a pair of trousers. On further examination, I found that it was a corpse of a man about 4ft 7 inches, with a penetrating wound, probably due to gun shots seen in inferm posterior aspect of the right ear into the head. No exit point was seen. No significant rigor mortis. In my opinion, the cause of death is the penetrating gun shot wound in the head of the deceased.”

It is clear from the doctor’s evidence that the opinion he expressed about the cause of death was not based on any thorough examination of the corpse with a view to finding out exactly the nature of the damage done by the penetrating wound probably due to gun shot.

He did not tell the court whether he opened up the skull to see how deep the penetrating object was. He also did not say if he examined the heart to see what its condition was and if the death was wholly caused by the penetrating wound or that death was merely expedited by the penetrating wound in case the deceased had any heart disease or any other internal disease for that matter. It is therefore not enough for a doctor called upon to examine a corpse with a view to expressing a professional opinion as to the cause of death to merely have a look at the corpse and give an opinion without actually carrying out an examination of the vital organs of the body that make the human body function and see which of these organs was damaged as a result of which death occurred.

The appellant’s case was that there was a struggle between him and the deceased and that during the struggle, the deceased wanted to take possession of his pistol. It was during that process that the gun was accidentally fired and the bullet from it hit the deceased. He alleged that during the struggle, the deceased tore his uniform.

The learned trial Judge, based on the above evidence placed before him, held that the prosecution had proved its case beyond any reasonable doubt. He rejected the defence of accident put up by the appellant. The court then convicted the appellant and sentenced him to death by hanging.

It is submitted in the appellant’s brief that the learned trial Judge failed to advert his mind to the inconsistencies in the evidence tendered by the prosecution and that if he had taken the inconsistencies into consideration, he would not have rejected the defence of accident put up by the appellant. Reference is made to the evidence of PW3 and PW5, who told the court that the deceased was sitting at the driver’s seat when he was shot by the appellant and that the bullet entered through the right ear. It is argued that since the driver’s seat was on the left hand side of the taxi cab, the bullet fired from the pistol could only have entered the victim’s head through the left ear if he was actually shot while he was sitting on the driver’s seat in the car.

The fact that the evidence was that the bullet entered through the right ear and coupled with the evidence that there was a struggle between the deceased and the appellant over the car key as given by PW4 and PW5, go to support the case for the defence that the shooting was accidental which happened during the struggle. The evidence given by PW5 to the effect that the deceased was standing by the car booth when the appellant accosted him is also said to go to support the appellant’s case that it was not correct that the appellant accosted and shot the deceased while he was in the car.

The evidence of Fidelis Onuka Okpogho (PW3) that the appellant shot the deceased behind the left ear is said to be in conflict with that of the doctor (PW1) who said that the bullet penetrated by the right ear. The learned trial Judge is therefore said to have misdirected himself when he held at page 60 lines 24 – 29 of the record that:
“The deceased was shot at the back of his left ear and this suggests that the shot came from behind. The accused could not be telling the truth when he said that the gun exploded while they were struggling over the gun.”

Similarly, it is submitted that the learned trial Judge was speculating when he held at page 60 lines 21 – 24 of the record that: the deceased could not have been on his seat in his car trying to start the car and at the same time held the accused’s dress and gripped his gun which was at his waist. It is submitted that it was clear from the evidence led at the trial that there was a struggle as a result of which the gun was accidentally discharged. It is finally submitted that for the prosecution to succeed, its case must be consistent. As the prosecution failed to explain the discrepancies, they ought to have been resolved in favour of the appellant. The failure of the learned trial Judge to advert his mind to these material contradictions and inconsistencies and to make a finding on them should vitiate the conviction and lead to a miscarriage of justice.

The point taken up in the appellant’s second issue is whether the appellant was exculpated from criminal responsibility for the death of the deceased by virtue of section 24 of the Criminal Code. Reference is made to the evidence of the doctor who performed the post-mortem examination on the corpse (PW1). It is argued that the evidence of the doctor (PW1) supported the contention that there was a struggle. This is said to be consistent with the appellant’s case that there was an accidental discharge. It is therefore, submitted that the appellant ought to have been covered by the provisions of section 24 of the Criminal Code.

It is submitted in reply in the respondent’s brief on the inconsistencies in the evidence led in support of the prosecution’s case that the instances of contradictions referred to are not material contradictions which could vitiate the outcome of the trial. The decision in Odu v. The State (2003) 7 NWLR (Pt. 666) 283, is cited in support of this contention. Reference is made to the evidence given by two of the eye-witnesses (PW2 and PW5) as to the place the bullet went into the head of the deceased and it is submitted that what would amount to left or right hand side of a witness would depend on where the witness was standing when the appellant released the shot.

It is also submitted on the cause of death that when a person attacked another person with a lethal weapon and the person attacked died on the spot like in the instant case, it is not necessary to prove the cause of death since it can properly be inferred that the wound inflicted on the deceased cause the death. The decision in Akpan v. The State (1994) 9 NWLR (Pt. 368) 347 is cited in support of this contention.

On the defence of accident raised by the appellant, it is submitted that the facts established do not support that defence. That the defence of accident can only be available to an accused if he can show that the act of killing the deceased was a surprise to him and not deliberate or intentional. The decision in Madaki v. The State (1996) 2 NWLR (Pt. 429) 171, is cited in support. The facts of the instant case are said to support a premeditated act of the appellant which resulted in the instant death of the deceased.

It is clear from the evidence presented by the prosecution in this case that the deceased died as a result of the wound he received from the gun shot. The main defence of the appellant was that he did not fire the gun voluntarily. It was an accidental discharge. In other words, the appellant is raising a defence under section 24 of the Criminal Code which provides, inter alia, that:
“Subject to the express provisions of this code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident…”

The position of the law is that once this defence is successfully taken, the accused would be entitled to an acquittal. This is because to make a man liable for an offence which he does not know that he is committing and is unable to prevent is totally repugnant to the ordinary man’s conception of justice and would bring the law to contempt. See Sweet v. Parsley (1970) AC 132, per Lord Reid; Aguda, Criminal Law and Procedure of the Southern States of Nigeria, 3rd Ed., 1982, para. 1094, page 483; and Ajose v. The State (2002) 7 NWLR (Pt. 766) 302.The appellant in the instant case claimed that what happened during the struggle he had with the deceased was that the pistol he tucked by his waist accidentally discharged one of the live bullets in it which hit the deceased and caused his death. The word ‘accident’ is defined in The Concise Oxford Dictionary, 5th ed., page 9 as:
“Event without apparent cause, unexpected, unforeseen course of events; unintentional act, chance, fortune…”

An accidental discharge of a firearm by a person unintentionally and without the attendant criminal malice or negligence resulting in death will not lead to a conviction in a criminal trial. See Iromantu v. The State (1964) 1 All NLR 311; Chukwu v. The State (1992) 1 NWLR (Pt. 217) 255; and Ajose v. The State supra.

The question to be resolved therefore is whether there is sufficient evidence on record upon which the defence could be sustained. As already stated earlier above, seven witnesses testified for the prosecution. The appellant gave evidence in his defence but called no witnesses. Among the seven witnesses that testified for the prosecution, three were present at the scene of crime. Two were police officers who investigated the case while the remaining two are the medical officers who performed the post-mortem examination on the corpse and the man who identified the corpse to the doctor. Each of the three witnesses that were present at the scene of crime admitted that there was a struggle between the deceased and the appellant even though they differ as to the time the struggle took place.

Fidelis Onuka Okpogho (PW3) who told the court that the deceased was his relation, said that the accused, after coming out of the van which brought him to the place, moved towards the deceased’s car in which himself and Roseline Onuka (PW5) were passengers. He said further thus:
“All of a sudden, the accused who was dressed in police uniform came out of the van and moved towards us. At the time the deceased driver had gone into his seat in the car to move. The accused came to the deceased and asked him why he parked his car there. The deceased tried to explain but the accused was pointing to the deceased. And as the deceased was still explaining the accused pulled out his pistol from the scarbald and threatened to shoot the deceased driver. All of a sudden, the accused pointed the pistol behind the left ear of the deceased driver and fired. Blood was rushing out from the nose and ear of the deceased. We all jumped out from the car and I saw a car from Arochukwu, I then explained what happened to the driver of that car.

The driver picked me on her vehicle and we pursued the accused, who had jumped into their own vehicle and moved away. My intention was to come to the police station Ohafia, to report to the police. Luckily, on reaching the army barracks, the vehicle in which the accused was in branched to the barracks and we followed them. The soldiers went to the scene of shooting and later reported the matter to the police at Ohafia. We were brought from the army barracks to the police station where I made my statement.”

The witness did not mention that there was any struggle between the deceased and the appellant in his evidence in chief. But this was however, extracted from him under cross-examination. The relevant questions and answers in the cross-examination are as follows:
“Q. Did you observe that the accused and deceased struggled over a key?
Ans. I observed that the driver and the accused were struggling over the key to the vehicle.
Q. It was during the time the accused and the deceased were struggling over the ignition key and the gun that the gun exploded and wounded the deceased.
Ans. At the time they were struggling over the key the accused had not pulled out his gun.”

The account of Anthony Nweze (PW4), the driver of the van in which the appellant traveled on that day is very scanty on the question. He told the court, inter alia, thus:
“On our way back and at a place very near to the Ohafia army barracks the road was narrow. There was a taxi cab which packed on the left, but on its own right hand side. I slowed down to enable me pass the taxi cab on the narrow road. As I slowed down the accused jumped down and the other person who was in front asked him to get into the vehicle for us to go on. I had not passed the taxi cab when the accused jumped down. I was concentrating on my driving. I heard the accused struggling with the people and suddenly I heard a sound of gun shot. After the gun shot, the accused jumped back into our vehicle and I ran away. I drove away with my vehicle to the army barracks Ohafia and reported the incident to the army officers, who later brought me to the Ohafia police station.”

The witness was cross-examined and some of the questions put to him under cross-examination and his answers are as follows:
Q. Did you see when the accused fire at the deceased?
Ans. I saw the accused person fire on the deceased.
Q. Did you see the accused fire the shot?
Ans. I did not see the accused fire the deceased, but the accused person admitted he fired the shot.

That is why I took the accused to the army barracks.
The account of the incident as given by the third eye-witness, Roseline Onuka (PW5), is briefly as follow:
“… The accused person came down and was asking the deceased why he obstructed the road. The deceased replied that he did not obstruct the road. At the time the deceased was standing by the booth of the car. After dropping the woman’s loads he was returning into his taxi cab. The deceased was on the seat of his taxi cab. One of his hands was on the steering, while the other was on the key and the accused pointed his gun at the ear of the deceased and released the shot which killed the deceased.”

Based on the above evidence, the learned trial Judge found as a fact that the firing of the gun was not accidental. He said as follows:
“The deceased was shot at the back of his left ear and this suggests that the shot came from behind. The accused could not be telling the truth when he said that the gun exploded while they were struggling over the gun. I do not believe the accused. I believe the evidence of the third prosecution witness and the 5th prosecution witness who testified that the accused fired at the deceased at the left ear, while the deceased was sitting on his seat in the vehicle.”

Since the above finding of fact and conclusion of the learned trial Judge are supported by the evidence led before him, it is inappropriate for an appellate court to set aside the finding of fact or tamper with his conclusions based on the finding of fact. In the result, the defence of accidental discharge is not available to the appellant having regard to the evidence led in the case.

The next question to be resolved is whether there were material contradictions and inconsistencies in the evidence led by the prosecution in support of its case. The contradiction and inconsistency raised in the appellant’s brief centred around, whether the bullet hit the deceased by the left or right ear.

The law is settled that it is not every trifling inconsistency in the evidence of the prosecution witnesses that could be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issue in question before the court and thus, create doubt in the mind of the trial Judge that an accused is entitled to benefit therefrom. See Okonji v. The State (1987) 1 NWLR (Pt. G 52) 659; The State v. Aibangbee (1988) 3 NWLR (Pt. 84) 548; Wankey v. The State (1993) 5 NWLR (Pt. 295) 542; Azu v. The State (1993) 6 NWLR (Pt. 299) 303; and Theophilus v. The State (1996) 1 NWLR (Pt.423) 139.

In the instant case, the main question to be resolved by the court was whether or not, the appellant fired the gun that hit the deceased on the head.

The description of the exact spot or part of the head where the bullet penetrated the head is immaterial. All that need to be established are whether it was the appellant that fired the gun and if so, whether the bullet fired from the gun hit the deceased on the head and resulted in his death. All these questions were satisfactorily answered in the instant case. The so-called inconsistencies referred to in the appellant’s brief are therefore very immaterial.

In conclusion, there is no merit in the entire appeal. I therefore, dismiss it. The judgment of the lower court including the sentence of death passed on the appellant is hereby affirmed.

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Other Citations: (2004)LCN/1538(CA)

Chris Nwabueze Ngige & Anor. V. Ron. Nelson Achukwu & Ors. (2004)

LawGlobal-Hub Lead Judgment Report

JOHN AFOLABI FABIYI, J.C.A.

On 29-1-2004, this court handed out a ruling in which it granted stay of further proceedings in respect of the matter dealing with competence of the court and order of interim injunction. Chief U. N. Udechukwu, SAN maintained that the stay of proceedings in respect of the above matter pending appeal to the Supreme Court in respect of same has nothing to do with the main appeal. He then desired to take their pending motion for departure from the rules so as to facilitate the entry of the appeal proper in this court. We called on all the counsel to address us on the propriety or otherwise of delving into the main appeal after the stated stay of proceedings in respect of the then pending matter was granted.

On 11th February, 2004, all learned Counsel for the parties advanced useful submissions in respect of their stand points.

Chief U. N. Udechukwu, SAN observed that the appeal has not been entered in this court. As such, it cannot be subject of stay of proceedings yet. He stated it clearly that the matter that came before the court was a motion for interlocutory injunction pending appeal. The appeal to the Supreme Court is in respect of a preliminary objection to motion for interlocutory injunction. He felt that what this court stayed was further hearing on motion for interlocutory injunction and such cannot extend to the substantive appeal that has not yet been entered. He observed that there is no preliminary objection against the main appeal. He referred to the case of Liyanage v. San & Anor. (1998) 13 NWLR (Pt.582) 500 at 506.

The senior Counsel prayed that the stay of proceedings ordered in respect of the initial pending matter be kept within its limit, as there is no special circumstance to extend it to the substantive appeal that has not yet been entered as there is only an application before the court for moves to enter the appeal. He further observed that the ultimate results of the appeal in the Supreme Court and the determination of appeal in this court are different. He finally submitted that whatever order is made in the substantive appeal can never render nugatory the appeal before the Supreme Court.
Wole Adebayo, Esq, of counsel for the 1st respondent, maintained that the applicant applied for stay of proceedings in the entire case and same was granted as prayed.

He referred to Order 5 rule 3 of the Court of Appeal Rules, 2002. He felt that this court lacks jurisdiction to review its ruling, since it is clear on its face. He called in aid of his stand point the cases of Soyannwo v. Akinyemi (2001) 8 NWLR (Pt.714) 95 at 117; Ibe v. Onuorah (No.2) (2001) 9 NWLR (Pt.719) 519 at 525-526. He maintained that the court becomes functus officio in such matters.

Learned Counsel felt that it is irrelevant that the appeal has not been entered. He referred to section 16 of the Court of Appeal Act and the case of Akeem v. University of Ibadan (2001) 15 NWLR (Pt.736) 352 at 369. He maintained that the determination of the appeal at the Supreme Court will affect the hearing of the main appeal. He posited that the decision of the Supreme Court in respect of applicant’s reliefs should not be prejudiced.

R. N. Chenge, learned Counsel for the 2nd respondent (IGP) submitted that the issue is not to review the ruling on stay of proceedings. Rather, it is to state clearly which of the proceedings was stayed. He maintained that the applicant never prayed for stay of proceedings in respect of the main appeal. He submitted that a party cannot be given more than what he asks. He cited Egbuo v. Chukwu (1998) 10 NWLR (Pt.570) 499.

Learned Counsel submitted that in the interest of justice, a narrow interpretation should be given to the phrase – ‘in this case’ to mean only the interlocutory application bearing in mind that the applicant is not estopped from bringing motion on stay of proceeding in respect of the main appeal which will then be taken on its merit. He felt that whatever may be the relief sought at the Supreme Court, it is his prayer in this court that can be considered; he cannot be granted a bonus.
Chief U. N. Udechukwu, SAN, in reply observed that it is the ground of appeal and not the reliefs sought that this court took into consideration in granting stay of proceedings. He felt that the term the case – is not a legal term of art. In general terms, it means the issue placed before the court for adjudication. It is subsumed under cause and matter vide section 31 of the Court of Appeal Act, 1976.

He finally observed that when this court granted stay in the matter, such related to proceedings in respect of motion for injunction.

There is no iota of doubt about it that there is a gulf of difference between cause and matter. Often, a matter may arise before or after a cause is heard and determined. The distinction is best captured by section 31 of the Court of Appeal, 1976.

There is no gainsaying the fact that appeal herein has not yet been entered. The motion for stay of proceedings has no bearing with an appeal that has not yet been entered, stay of proceedings was in respect of the pending matter before the court. The applicant should not expect that he was given more than what he asked for. He was not given a bonus in respect of an appeal that is yet to come on board. The case of Egbuo v. Chukwu (supra) cited by the counsel for the 2nd respondent is of moment.

The matter dealt with is appeal against the order made by this court in respect of interlocutory injunction. Should the main appeal be kept in the cooler as well, pending the determination of an appeal on a matter which preceded the main appeal? I think not. Learned Counsel for the 1st respondent talked of this court being functus officio in the prevailing circumstance. The issue, to my mind, is not a review of the ruling on stay of proceedings. Rather, this court is called upon to demarcate its limit. And I see nothing unusual in so doing.

I agree with the senior Counsel for the appellant/applicant that the tag – the case – is not a strict legal term of art. In general terms, it means the issue placed before the court for adjudication. It is subsumed under cause and matter. The ruling on stay of proceedings related to the matter, which came up before the appeal proper is entered. It will be tantamount to deceit to say that the stay granted in respect of the matter must extend to an appeal a cause – that is yet to be entered.

Surely, the stay of proceedings in respect of matter before the court before the main appeal is entered cannot and did not affect taking due steps to get the appeal on board. Due steps can be taken to get the main appeal entered in this court. The senior Counsel is at liberty to take necessary steps deemed fit to get the appeal entered.

I order accordingly.

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Other Citations: (2004)LCN/1537(CA)

Chief Benjamin O. Okumagba & Ors. V. Chief Felix Esisi & Ors. (2004)

LawGlobal-Hub Lead Judgment Report

KUMAI BAYANG AKAAHS, J.C.A.

In

he motion dated and filed on 10/10/2003, the honourable Attorney-General of Delta State is praying for the following reliefs namely:-
1. Extension of time to seek leave to appeal, against the interlocutory ruling of the High Court, Warri, in suit No.M/51/92, delivered on the 19th day of May, 1992.

2. Leave to appeal against the interlocutory ruling of the High Court, delivered on the 19th day of May, 1992.

3. Extension of time within which to appeal against the interlocutory ruling of the High Court, delivered on the 19th day of May, 1992.

4. An order deeming as properly filed and served ground 3 of the notice of appeal, which is a ground of appeal against the ruling of the High Court delivered on the 19th day of May, 1992.

5. An order deeming as filed and served the 7th and 8th defendants/appellants brief of argument deemed filed on 13th day of October, 1998, already containing the arguments arising from the appeal against the interlocutory ruling of 19th May, 1992.

The grounds for the application are:-
1. The ruling of 19th May, 1992, complained of is an interlocutory ruling raising substantial issues of law.

2. The ground 3 of the notice of appeal dated 4th December, 1992, raises substantial and arguable issues of substantive law and procedure.

3. By virtue of the rules of court, it is necessary to obtain leave of court to appeal against an interlocutory ruling even if the complaint is contained in the final judgment.

Professor A. A. Utuama, the learned Attorney-General of Delta State in moving the motion, relied on paragraphs 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the affidavit, in support and exhibits ‘A’, ‘B’ and ‘C’, which were attached to the affidavit in support. He wants to regularize ground 3 of the grounds of appeal contained in exhibit ‘B’ over which the plaintiffs/ respondents had earlier filed a preliminary objection, challenging the said ground as being incompetent. He argued that the preliminary objection did not foreclose the 7th – 8th appellants/applicants from taking steps to correct the error and cited the case of Francis Shanu & Anor. v. Afribank Nigeria Plc. (2000) FWLR (Pt.23) 1221; (2000) 13 NWLR (Pt.684) 392 in support.

He contended that the current trend is to do substantial justice by determining an appeal on the merit, rather than defeat the course of justice by mere technicalities and placed reliance on Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt. 212) 652 at 676; Central Bank of Nigeria v. Ahmed (2001) 6 NSCQR 859; (2001) 11 NWLR (Pt.724) 369, where it was decided that the inadvertence of counsel should not be visited on the client. He therefore, urged the court to grant the application.
Chief Otomiewo, learned Counsel for the 1st-6th appellants associated himself with the submissions of the learned Attorney-General and argued that the granting of the application will not occasion any miscarriage of justice, but may cause only a delay in the hearing of the appeal and this type of inconvenience can be adequately compensated by costs. He relied on the case of Evbuomwan v. Elema (1994) 6 NWLR (Pt.353) 638, in support of his argument.

Mr. Oritsejafor, learned Counsel for the plaintiffs/respondents opposed the application and he filed a counter-affidavit on 15/10/2003 in opposition on which he relied. He argued that the affidavit in support of the application has not disclosed good and substantial reasons why the applicant failed to appeal within the 14 days period allowed by the rules. His contention is that there is an inordinate delay of over 11 years in bringing the application. He picked holes in the affidavit in support. He submitted that the inadvertence of counsel is not a universal talisman, the waiver of which will act as a panacea to cure all the defects in the application and that if a counsel takes a deliberate decision and losses thereby, then it is his privilege to lose.

The following cases were cited to buttress the argument: Ukwu v. Bunge (1991) 3 NWLR (Pt.182) 677; Ojora v. Bakare (1976) 1 SC 47, (1976) 10 NSCC 16. He harped on the delay in bringing the application and that it is a factor to be considered in an application for extension of time and that where the delay is so inordinate the application will not merit any sympathetic consideration. He went further to submit that the Court of Appeal refrains from deeming 8 grounds to be filed retrospectively. On this submission he cited the case of Co-operative Bank v. Ogwuru (1991) 1 NWLR (Pt. 168) 458 at 467. He therefore, urged this court to dismiss the application.

Before this application was filed learned Counsel for the plaintiffs/respondents had filed a notice of preliminary objection, dated 7/10/2003 challenging the competency of further ground XI of the further grounds of appeal. In the said preliminary objection, learned Counsel gave the following reasons for the objection:

(i) Further ground XI of the further grounds of appeal filed by the 1st to 6th appellants on 2nd day of October, 2000, in the 2nd particular furnished therein-emanates from and constitutes a complaint against an interlocutory decision of the court below viz:- ruling dated 19th May, 1992, at pages 122-141 of the record, against which said interlocutory decision 1st-6th appellants have not filed an appeal.

(ii) The 14-day period within which the 1st-6th appellants ought to have appealed against the said interlocutory decision of the court below expired long before the 2nd day of October, 2000, when the said further ground Xl was filed.

(iii) The 5th issue raised for determination of this court in this appeal No.5, at page (sic) of appellants’ amended brief of argument relate and steams (sic) from the 2nd particular furnished to further ground XI filed by appellants.

(iv) Accordingly, the said 2nd particular to further ground XI of this appeal is incompetent and should be struck out in that the appellants failed to appeal against the said interlocutory decision of the lower court or obtain an order of this court to extend time to appeal therefrom, before raising arguments on issue N0.5 in the said ground XI.

It is to be noted that there are two sets of appellants in this appeal.

The 1st set of appellants are 1st-6th defendants, while the 2nd set of appellants are 7th and 8th defendants. The present applicants namely the 7th and 8th defendants/appellants/applicants filed their own notice of appeal dated 4th December, 1992 and the motion by the 1st – 6th defendants/appellants/applicants seeking leave to file additional grounds of appeal is dated and filed on 25/5/2000. Ground 3 in the notice of appeal of the 7th and 8th defendants/ appellants is the same as ground XI in the further grounds of appeal filed by 1st-6th defendants/appellants.

Even though, the plaintiffs/respondents have not filed a preliminary objection on the competency of ground 3 in the 7th and 8th defendants/appellants notice of appeal, it is obvious that the outcome of the preliminary objection to the additional ground XI of 1st-6th defendants/appellants’ notice of appeal will equally affect ground 3 of the 7th and 8th defendants/appellants’ notice of appeal, since the ruling from which the said ground of appeal is based was delivered on 19/5/92 and the notice of appeal was not filed within 14 days from the date of the ruling, but more than 6 months after the deli very of the ruling.

In paragraphs 6, 7, 8, 9, 10, 11, and 12 of the affidavit in support of the motion, Sunny Owede, a Litigation Clerk in the Honourable Attorney-General and commissioner for Justice, Delta State deposed to the following facts:
“6. That the applicants being dissatisfied with the judgment also filed a notice of appeal on 4th December, 1992. A copy of the notice of appeal is annexed as “exhibit B”.

7. That ground 3 of exhibit ‘B’ is a complaint against an interlocutory ruling of the learned trial Judge that dismissed an application which sought to set aside the suit which was initiated by an originating summons. A copy of the ruling is hereby annexed as exhibit ‘C’.

8. That the applicants solicitors inadvertently raised the ground of appeal against the interlocutory ruling in the notice of appeal, against the judgment without first seeking and obtaining leave of court.

9. That briefs of argument have been filed and exchanged by both sets of appellants and the respondents in this appeal wherein arguments have been canvassed in relation to the propriety of initiating the suit by way of originating summons, which is the complaint in ground 3 of exhibit B.

10. That the application for leave and to regularize the notice of appeal was not filed within time because of the movement of the Ministry of Justice from its previous site to the present office, which resulted in a temporary loss of the file in the Ministry.

11. That Mr. Avwenoghagha, counsel in the Ministry of Justice originally assigned to conduct the defence and appeal on behalf of the applicants herein died during the pendency of this appeal.

12. That another counsel, assigned to conduct the matter was also transferred to another department within the Ministry of Justice and inadvertence of the previous counsel to seek and obtain the leave was discovered during a review of the case file sometime in September, 2003.”

In the counter-affidavit of Chief Joseph Popo opposing the application, he deposed to the following facts in paragraphs 4, 5, 6, 7, 8, 9, 10, 11 and 12 as follows:-
“4. That I have been informed by our counsel that Eyewu Oritsejafor and I verily believe that paragraphs 10 and 12 of the said affidavit are not true.

5. That Eyewu Oritsejafor informs me and I verily believe that Mr. Avwenoghagha died on or about 1995

6. That Eyewu Oritsejafor further informs me and I verily believe that upon the deli very of the ruling of the lower court on 19/5/92, neither Mr. Avwenoghagha, Assistant Chief legal officer nor the Attorney-General, 8th appellant/ applicant herein, found it necessary to file an appeal against the ruling.

7. That Eyewu Oritsejafor informs me and I verily believe that at various times after the demise of Mr. Aywenoghagha, 7th – 8th appellants/applicants herein had been represented in Court by Mr. S.O. Moneye, legal officer, the solicitor General of Delta State, Mr. Hyacinth Osuhor and even Mr. A.P.A Ogefere, who was Attomey-General of Delta State from on or about 1995-1996 to May, 1999.

8. That on the 27/2/97, the Solicitor General of Delta State, appeared for 7th-8th appellants/applicants and was granted 30 days to file their brief.

9. That neither the Attomey-General, Mr. A.P.A Ogefere, the Solicitor-General, the Assistant Chief legal officer, Mr. Osuhor, who filed their brief, nor the present Attorney-General of Delta State Prof. Utuarna, who has been Attorney-General since June – July, 1999, deemed it necessary to file an appeal against the said ruling of 19th of May, 1992.

10. That at the material time in May, 1992, the Attorney-General of Delta State was Chief Adaigbo and outstanding member of the Bar, who did not find it necessary to appeal against the said interlocutory ruling of the lower court.

11. That Eyewu Oritsejafor informs me and I verily believe that the Ministry of Justice moved from it’s former office at the old Government House to it’s present office in 1999.

12. That Eyewu Oritsejafor informs me and I verily believe that he 7th – 8th appellants/applicants have not advanced good and substantial reasons for their failure to appeal against the said ruling of 19/5/92 within time allowed by law.”

None of the reasons given in the affidavit, in support of the motion, can explain the failure by the applicants in bringing the application, until 10/10/2003, a period of almost 11 years after the ruling was delivered. The only reasonable conclusion that one can draw which prompted the application is the filing by the plaintiffs/respondents of the preliminary objection challenging the competency of additional grounds of appeal filed by the 1st – 6th defendants/appellants particularly ground II thereof which as I have stated earlier is the same as ground 3 in the 7th-8th defendants/appellants notice of appeal.

I am certain in my mind that, the notice of appeal which was filed by the 7th and 8th appellants on 4/12/92, challenging the judgment, which delivered on 29/9/92, is a valid notice since it contains valid grounds of appeal. What is in contention is as to whether leave ought to be sought or not before ground 3 which emanated from the ruling, delivered on 19/5/92 can also be a valid ground of appeal. The claim by the plaintiffs/respondents that no appeal has been filed is therefore not correct.

Since learned Counsel for the 7th and 8th appellants/applicants has tacitly admitted that it was on account of inadvertence by the Solicitors in not first applying and obtaining leave of court before filing the ground of appeal, the application ought to be granted since the counsel’s error of judgment has explained the delay in applying for leave to appeal. See Akinyede v. Appraiser (1971) 1 All NLR 162; Shanu v. Afribank (Nig.) Plc. (2000) 13 NWLR (Pt. 684) 392 at 403; Bowaje v. Adediwura (1976) 6 SC 143. This is a proper case, in which the application ought to be granted so that the processes already filed, including the appellants’ brief can be regularized and the appeal which has been pending for almost ten years can be heard without any further delay.

The application is granted as prayed and I make the following orders namely:-
1. Time is extended to today to enable the 7th and 8th defendants/appellants seek leave to appeal against the interlocutory ruling of the High Court, delivered on the 19th May, 1992 in suit No. M/51/92.

2. Leave to appeal against the said interlocutory ruling is hereby granted.

3. Time is extended to today, within which to appeal against the Interlocutory ruling of the High court, delivered on the 19th May, 1992, in suit No. M/51/92.

4. The notice and grounds of appeal, dated 4th December, 1992, already filed and served is deemed as properly filed and served as from today.

It is unnecessary to grant prayer 5, since the application to deem the 7th and 8th appellants brief as properly filed and served was taken and granted on 13/10/98.

There shall be costs of N2,000.00 in favour of the plaintiffs/respondents against the 7th and 8th defendants/ appellants.

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Other Citations: (2004)LCN/1535(CA)