Obinna Okeke V. The State (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR JEGA ABDUL-KADIR J.C.A, (Delivering the Leading Judgment)

This appeal is against the Ruling of the High Court of Enugu State sitting at Awgu, coram, Onyia J. delivered on 1st day of February, 2011.

The facts leading to this appeal are stated thus –

The Appellant was charged to court in a single count of murder contrary to Section 274(1) of the Criminal Code Cap. 30 Volume II Laws of Enugu State.

On the 27/10/2009, his plea was taken and he pleaded not guilty to the offence. The trial commenced with PW1 testifying.

At the end of the testimony of PW1, no other witness had testified for the prosecution nor was any documentary evidence tendered as an exhibit apart from the statement of PW1 which was received in evidence and marked Exhibit “A”

At the close of the case for the prosecution the Appellant’s counsel had made a no case submission in his favour to which the state counsel replied and on the 1st day of February the learned trial Judge had relied heavily on the “Statement” of the Appellant contained in the proof of evidence but not actually tendered in evidence as an Exhibit. The Police Officer that allegedly took the “Statement” as an exhibit was not called in evidence to tender the “Statement as an exhibit nor was any attempt even made to tender the same through any other witness.

The appeal was heard on 21/2/2012. At the hearing of the appeal learned counsel to the Appellant Mr. C.C. Oguejiofor informed the court that the Appellant’s Brief of Argument and is dated 17/3/11 and filed on 18/3/11 he adopted the Brief of Argument and urged the court to allow the appeal. Learned Counsel to the Respondent Mr. S. Ejim informed the court that the Respondent brief of argument is dated 23/6/11 and filed same date. He adopted the brief and urges the court to dismiss the appeal.

In a brief settled by C.C. Oguejiofor Esq. one issue was distilled from the sole ground of appeal and it is stated thus:-

“Whether the learned trial Judge was right in law to have overruled the no case submission made on behalf of the Accused/Appellant in this matter and in making use of the “Statement” of the Accused/Appellant that was not admitted in evidence before the court as an exhibit to reach the decision”.

Learned counsel to the Respondent S. Ejim Esq in his brief of argument added one issue for determination in addition to the issue already submitted for determination by the Appellant, the issue is stated thus –

“Whether a court is entitle to look at documents in its file”

In the instant appeal the Notice of Appeal contained only one ground of appeal and the law is settled that issues for determination cannot be formulated to be more than the grounds of appeal. See KALU V. OHUABUNWA (2004) 7 NWLR (Pt. 871) 1 by the sole ground of appeal before the court the Respondent is not entitle to formulate more than one issue for determination, accordingly the second issue for determination formulated by the Respondent is discountenanced.

In arguing the sole issue for determination learned counsel for the Appellant submits that the prosecution had called one witness and tendered just an Exhibit in evidence that in his testimony on 27/10/2009, at page 2 of the record the witness PW1 has stated as follows –