David Amadi V. Attorney-general Of Imo State (2017)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

On the charge No. HOW/ART/11/99 the Appellant and two others were tried for the offence of armed robbery contrary to Section 1(b) of the Robbery and Firearms (Special Provisions) Act Cap 398 LFN, 1990, before the High Court of Imo State presided by J.O.H Ukachukwu, J. The prosecution commenced evidence on 29th October, 1999. Before then the Appellant had on 31st August, 1999 pleaded not guilty to the charge amended at the instance of E.E. Ibe, Senior Legal Officer, prosecuting officer on behalf of the Attorney-General of Imo State. The charge, at page 20 of the Records, was substituted by leave of Court, as can be gleaned from page 31 of the Records. At the close of the prosecution’s case the Appellant testified as his sole defence witness, following the dismissal of the Appellant’s No Case submission on 27th April, 2004.

On 19th June, 2006 the Learned trial Judge, after hearing final addresses of the parties, adjourned the proceedings to 28th September, 2006 for judgment; which judgment was delivered on the said 28th September, 2006. The Appellant was convicted and sentenced for the offence of

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armed robbery. On 8th November, 2006 the Appellant lodged his appeal against his conviction and sentence to the Court below. The appeal was heard by the Court below sitting at Owerri. The Court below, in its unanimous judgment delivered on 18th May, 2012, dismissed the appeal of the Appellant and affirmed both the conviction and sentence by the trial High Court relating to the Appellant. This further appeal has arisen from the said decision of the Court of Appeal, Owerri dismissing the Appellant’s appeal.

On 17th November, 2016 this Court heard this appeal. The Appellant’s counsel and the Respondent’s are ad idem on the three issues formulated by the Appellants counsel for the determination of this appeal. The issues are:

“i. Whether a charge initiated and signed by an unidentified law officer is competent to activate the jurisdiction of the trial Court to entertain it.

ii. Whether the learned Justices of the Court of Appeal were right to have affirmed the conviction and sentence of the appellant by the trial Court for the offence of armed robbery on the basis that the eye witness account of the victim (PW1) was unchallenged,

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uncontradicted and was sufficiently credible to ground the conviction of the appellant (ground one of the appeal).

iii. Whether the prosecution proved beyond reasonable doubt the offence of armed robbery against the appellant as required by law (Grounds two and three of the appeal).

The Notice of Appeal, at pages 257-260 of the Records, has three (3) grounds of appeal. lssues 2 and 3, reproduced above, have been formulated from the 3 grounds of appeal. Now, the question: from which ground of appeal has issue 1 been formulated or arisen I can not see any. And it is crystal clear, ex facie issue 1, that the said issue 1 has not arisen from any ground(s) of appeal against the decision of the Court of Appeal, the Appellant is complaining against. It is now settled beyond question that any issue raised and argument advanced on an issue not arising from a ground of appeal is incompetent. See OKPALLA v. IBEME (1989) NWLR (pt.102) 208; OSINUPEBI v. SAIBU (1982) 7 SC. 104 at 110-111. Issues for determination of appeal are not, in appellate Courts, formulated from the clouds or nowhere. See IHEANACHO v. EJIOGU (1995)4 NWLR {pt.389) 324; PORT-HARCOURT

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CITY LG v. EKEOHA (2008) ALL FWLR (pt 422) 1174 at 1192. The law and practice in the appellate Courts, are now well settled that issues for determination are formulated from and on the basis of the grounds of appeal filed. An issue formulated must therefore not only relate to the ground(s). It must fall within the existing grounds(s) of appeal challenging the correctness of the judgment appealed. See MODUPE v. STATE (1988) 4 NWLR (pt.57) 131: UGO V. OBIEKWE (1989) 1 NWLR {pt.89) 566: AKINBINU v OSENI (1992) 1 NWLR (pt.215) 97; OSENI v. AKINBINU (1992) 23 NSCC (pt.1) 22; BAMGBOYE v. OLANREWAJU (1991) 4 NWLR (pt.184) 132 at 152; LABIYI v. ANRETIOLA (1992) 10 SCNJ 1. An issue raised in vacou or which has been raised and argued from no ground of appeal is not only Incompetent, it is completely irrelevant and extraneous. It is for this reason that this Court maintains the stance or policy that an issue raised or formulated from nowhere or no ground of appeal must certainly be discountenanced. See AKINBINU v. OSENI (supra)