Onuwa Kalu V. The State (2017)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

At the Owerri Judicial Division of the High Court of Imo State, the appellant (first accused person, as he then was) and one Martin Egbufor were jointly charged with the offence of Armed Robbery contrary to Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act, Cap R 11, Vol. 14, Laws of the Federation of Nigeria, 2004.

Having pleaded not guilty to the charge, trial commenced with the Prosecution calling three witnesses in proof of their case. On his part, the appellant (as first accused person), not only testified in protestation of his innocence, he also called two witnesses.

My Lords, for reasons that would be evident anon, there is seldom any need for further voluble comments on the proceedings at the said Court (hereinafter, simply, referred to as “the trial Court”). Having regard to the appellant’s principal complaint (as embodied in his Notice and Grounds of Appeal), the only aspect of the trial that is relevant for the purposes of this appeal is what transpired thereat at the end of the oral testimonies.

The grouse of the appellant

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is that, though counsel had filed and exchanged their briefs – including a Reply brief, a Reply brief which was, nonetheless, never adopted in answer to the points of law raised in the respondents brief – the learned trial Judge proceeded to deliver his judgment. His Lordship, in effect, without allowing the appellant’s counsel to adopt the said reply brief, proceeded to write down His judgment. He found the accused persons guilty as charged; convicted and sentenced both of them to death by hanging.

By a plural decision, the Court of Appeal (hereinafter, simply, referred to as “the lower Court”) allowed the appeal to it. It ordered the case to be remitted to the Chief Judge of Imo State for re-assignment to another Court. Aggrieved by the majority decision of the lower Court, the appellant has approached this Court.

My Lords, the power of this Court to reframe the appellant’s issue (s) for the purpose of accentuating the principal question in controversy in the interest of clarity and brevity has never been in doubt, Musaconi Ltd v Aspinal (2013) LPELR – 20745 (SC) 6-7; I.T.I. V. Ltd and Anor v Onyesom Community Bank Ltd (2015) LPELR – 24819 (SC) 20;

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B-D; Unity Bank Plc. and Anor v Bouari (2008) LPELR -3411 (SC) 21,-22; A-B; Okoro v The State [1988] 12 SC 191; [1988] 12 SCNJ 191.

The appellant formulated four issues for the determination of the rather narrow question in this appeal, [Paragraph 3.0; pages 6- 7, of the brief]. However, I have taken liberty of this Courts said prerogative to prune them into just one issue. The aim is to narrow down the principal question in controversy having regard to his main complaint against the majority judgment of the lower Court as encapsulated in the Notice and Grounds of Appeal.

For this purpose, I take the view that only the first issue is actually determinative of this appeal. Okoro v The State (supra); Unity Bank Plc and Anor v Bouari (supra); Musaconi Ltd v Aspinall (supra); I.T.I.V. Ltd and Anor v Onyesom Community Bank Ltd (supra). Indeed, Chief Ahamba, SAN, urged the Court to consider issues one; three and four together.

The said first issue was couched thus: