Friday Charles v. The State of Lagos (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

MUSA DATTIJO MUHAMMAD, JSC (Delivering the leading judgment)

The appellant was tried and convicted by the trial court, Lagos State High Court, for conspiracy to commit armed robbery and armed robbery contrary to sections 297 and 295(2) (a) of the Criminal Law of Lagos State, 2011 respectively.

The trial court’s judgment was delivered on the 22nd September, 2016. The instant appeal is against the Court of Appeal’s affirmation of the trial court’s judgment contained in the former’s decision delivered on 19th December, 2019. The appeal to this court is on four grounds as contained in the notice of appeal dated and filed on 17th March, 2020.

The two issues distilled at page 5 of the appellant’s brief for the determination of the appeal read:

“(1) Whether the learned Justices of the Court of Appeal were right to have affirmed the appellant’s conviction based on exhibit 4, his purported confessional statement, which although was admissible, but was invalid and impotent, having breached the mandatory provision of section 9(3) of the Administration of Criminal Justice Law of Lagos State?

(2) Whether the learned Justices of the Court of Appeal were right to have affirmed the appellant’s conviction, when the prosecution failed to prove the offences of conspiracy to commit armed robbery and armed robbery against him beyond reasonable doubt.”

The appeal will be determined on the basis of our simultaneous consideration of the appellant’s foregoing two issues.

Now, any party to an appeal who seeks the determination of an issue that was never raised at and determined by the trial and/or lower court must show that it has sought and obtained the leave of the court earlier. It is long settled that where no leave was sought and obtained, and one is required, the appeal is incompetent and liable to be struck out. See Ehinlanwo v. Oke & Ors. (2008) LPELR – 1054 (SC) and METUH v. F.R.N (2017) 4 NWLR (Pt. 1554) 108 at 121.

It is evident from the record of this appeal that at the trial court the appellant never challenged the validity of his extra-judicial statement, exhibit 4, on the ground that same was recorded in manifest breach of section 9(3) of the Administration of Criminal Justice Law of Lagos State. His objection then drew solely from the fact that the statement was not voluntarily made.

A competent appeal to this court from the Court of Appeal, the court below, arises only from that court’s decision. In the case at hand where an issue had not been heard and decided by the Court of Appeal, an appeal to this court, by virtue of section 233(2) of the 1999 Constitution as amended, does not enure. See Thor v. First City Merchant Bank Ltd (2006) 1 WRN 1; (2002) LPELR – 8061 (SC) and Oyakhire v. State(2006) 40 WRN 167 (2006) LPELR-2863 (SC).

In Chukwuemeka N. Ojiogu v. Leonard Ojiogu & Anor. (2010) 48 WRN 1; (2010) LPELR – 2377 (SC), this court per Chukwuma-Eneh, JSC (of blessed memory) restated the principle inter-alia as follows:

“It is trite that an appellate court will not allow a fresh issue on appeal to be taken without leave as it has not been pronounced upon by the courts below. This is even more so as in this case where the appellant is trying on appeal to raise an issue which has not been raised, nor considered by the trial court. However, where the question involves substantial point of law, substantive or procedural and it is plain that no further evidence may be called, the court may allow the issue to be raised subject to leave having been sought and obtained.”

Given the facts on record, appellant’s 1st issue for the determination of his appeal, raised without the required leave, is manifestly incompetent. The issue, therefore, is hereby accordingly discountenanced. See Okey Jim Nwagbara v. Jadcom Limited (2021) LPELR-55329 (SC) and Miss Promise Mekwunye v. Emirates Airlines (2019) LPELR-46553(SC).

The appeal shall therefore be determined on the basis of appellant’s 2nd issue alone.