Nasiru V. State (2022)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Ibadan Judicial Division, delivered on the 15th day of May, 2020 Coram: Tsammani; Okoronkwo; Ojo; JJCA wherein the appeal by the appellant herein was adjudged lacking in merit and was dismissed. The judgment of the trial Court was then affirmed.

The appellant had earlier been charged with the following one count.

“That you Yusuf Abiodun Nasiru ‘M’ on the 12th March, 2014 at about 3p.m. at Isale Awero, Moniya, Ibadan within the Ibadan Judicial Division did unlawfully caused the death of one Glory Oladayo ‘F’ aged 6 years by strangulating and matcheting her to death thereby committing an offence under Section 316 and punishable under Section 319 of the Criminal Code, Cap.38, Vol. II, the Laws of Oyo State of Nigeria, 2000.”

​Upon arraignment, the accused pleaded not guilty to the charge. At the trial, the prosecution called four (4) witnesses while the accused person only testified in defence but called no other witness. The prosecution tendered the extra judicial statements of the accused person which were admitted as Exhibits when there was no objection by the defence. At the close of evidence, counsel to both parties addressed the trial Court and in its considered judgment delivered on the 17th day of May, 2017, the accused was found guilty as charged. He was convicted and accordingly sentenced to death by hanging for murder.

The appellant was dissatisfied with the judgment of the trial Court, hence he appealed to the Court below. The appeal was adjudged lacking in merit and was dismissed, which again led to the instant appeal.

The Notice of Appeal to this Court was filed on 28th May, 2020. Pursuant to the rules of this Court, parties filed and exchanged briefs of argument. The appellant’s brief of argument which was settled by J. T. Ogunniyi Esq. was filed on 24th November, 2020 while the respondent’s brief of argument was filed on 24/12/2020. Upon service of the respondent’s brief of argument, the appellant filed a Reply brief of argument on 15th December, 2020. Learned counsel for the appellant referred to both briefs of argument. He adopted and relied on same to urge the Court to allow the appeal and set aside the decision of the Court below.

​Mr. B. B. Lawal of counsel for the respondent referred to his preliminary objection filed on 4/12/2020 which is argued in the brief of argument filed on 4th December, 2020 on pages 6-8, paragraphs 3.04 to 3.9. He finally urged the Court to dismiss the appeal and affirm the judgment of the Court below.

In arguing the preliminary objection, learned counsel referred to Section 233 (3) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and contended that subject to Section 233 (3) of the Constitution of the Federal Republic of Nigeria, an appeal lies from a decision of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court. He contended further that the said provision is mandatory and so the leave to be sought and obtained assumes a condition precedent status for the filing of a valid or competent appeal. He submitted that failure to seek leave automatically deprives the Court of jurisdiction to hear the appeal. He relied on Bestman Vs. Whyte (2020) 6 NWLR (Pt.1719) 136 at 154; Adili vs. The State (1989) 2 NWLR (Pt.103) 305 at 330-331.

​Learned counsel took the grounds of appeal one after the other and came to the conclusion that all the grounds of appeal ventilated in the notice of appeal are all grounds of appeal challenging the findings of fact made by the Court below or involves issues of mixed law and facts that can only be validly argued with the leave of either the Court below or this Court. He submitted that the leave to litigate grounds of appeal on fact and/or mixed law and fact must be sought and obtained before the notice of appeal is filed. He relied on B.A.S.E Nigeria Ltd Vs. Faith Enterprise Ltd. (2010) 4 NWLR (Pt. 1183) 104 at 128-129. He urged the Court to strike out the Notice of Appeal filed on 28th May, 2020.

In his response to the preliminary objection, learned counsel to the appellant contended that since the respondent failed to specifically raise any issue for determination on the preliminary objection, he raised the following issue-

“Is the instant appeal competent?”

Learned counsel submitted that the appeal is competent and the preliminary objection raised is misconceived and misplaced in law.

​He referred to the complaint of the respondent on the provisions of Section 233 (3) of the 1999 Constitution and conceded that indeed the law requires that leave of Court is required to be sought and obtained before an appeal is made to the Supreme Court from the decision of the Court of appeal. He however submitted that the said requirement is qualified in Section 233 (3) of the said Constitution which deals with appeal as of right.