Onwuzulike V. State (2020) LLJR-SC

Onwuzulike V. State (2020)

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At the High Court of Anambra State, sitting at Otuocha, the appellant was tried and convicted for the offence of kidnapping contrary to Section 315(1)(b) of the Criminal Code Law of Anambra State (as amended in 2009). He was sentenced to life imprisonment. Both the conviction and sentence were on 15 February 2017, affirmed by the Court of Appeal (the lower Court) – hence this further appeal.

The parties seem to agree on the two issues formulated by the appellant for the determination of the appeal. That is –

  1. Whether the Court below was right when it failed to expunge from the record the computer – generated evidence (exhibits C and F3) on which the learned trial Court heavily relied to convict and sentence the appellant for the offence of kidnapping when the admission of the said evidence ran contrary to the mandatory provisions of mandatory of Section 84(4) of the Evidence Act, 2011 regarding computer generated evidence? (Ground 1)
  2. Whether the learned trial judge was right in his approach, findings and conclusions reached on the evidence adduced at the trial by which he convicted the appellant of the evidence of kidnapping? (Grounds 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18).

In the judgment (of Tur JCA, particularly at page 378 of the record, which Pemu and Bolaji-Yussuff JSCA, concurred in) the lower Court concluded:

“The evidence of the prosecution witnesses which stands unchallenged and is not discredited can be supported on the “last seen”; “last heard” and “last perceived” theory coupled with the grounds on which the opinion of these vital witnesses was held. Section 76 of the Evidence Act, 2011 provides as follows –

  1. Whenever the opinion of any living person is permissible the grounds on which such opinion is based are also admissible.”

See paragraphs 37-09 and 37-10 of Phipson on Evidence (supra) pages 921 to 923.

​Taking a cue, apparently from this conclusion, Mr. Obeogolu, of counsel to the appellant submits, at paragraph 4.04 of the appellant’s brief, that “the prosecution tendered exhibits C and F3 for the purpose of showing that the appellant was one of the last persons captured on the alleged kidnap victim’s call logs data to have spoken with the alleged kidnapped victim on the evening of 14 January 2013, the evening the latter went missing”, and further that the said “electronic evidence were tendered to prove that one Nnamdi Osita (whom the prosecution surmised to be appellant’s accomplice) started using the alleged kidnapped victim’s phone on 15 January 2013 after the latter went missing”. The kidnapped victim has since not been found or heard from.

​It appears to me that the appellant, under his issue 1, is arguing that – since exhibits C and F3 were admitted in evidence contrary to the provisions of Section 84(4) of the Evidence Act, 2011, the lower Court, he urged, ought not to have acted on them to affirm the conviction and sentence of the appellant for the kidnap of Chinwuza Ekwenze – who nobody had seen or heard from since 14 January 2013. What the learned counsel for the appellant should concern himself with under this issue should be establishing how the trial Court wrongly, contrary to the provisions of Section 84(4) of the Evidence Act, admitted in evidence and relied on exhibits C and F3 – pieces of computer generated evidence.

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Exhibit C, the flash drive, was admitted in evidence through the PW.5 at pages 130 – 131 of the record. The objection to admissibility of exhibit C was not under Section 84 of the Evidence Act but under Sections 89 and 91(4) of the Evidence Act – provisions dealing, respectively, with how secondary evidence relating to document may be given and the rules as to how notice to produce may be given to warrant admissibility of secondary evidence under Section 89 thereof.

The matters arising in relation to exhibit C are therefore: whether a party is permitted to raise his objection to admissibility of a piece of evidence by way of appeal upon a ground of appeal. Secondly, should a party not be consistent in litigation? This enquiry drives me to have a second look, howbeit critical, at the notice of appeal and the ground of appeal from which the issue was formulated.

​In the first place, the appellant filed amended notice of appeal which was deemed filed and served on 17 October 2019. The amended notice of appeal was necessitated by the appellant’s intent or desire to file 18 additional grounds of appeal in addition to the original single ground of appeal contained in the notice of appeal at pages 382 – 385 on 9 May 2017. The said original notice of appeal against the decision delivered by the lower Court on 15 February 2017, was filed on 9 May 2017 – on the 84th day from the said 15 February 2017. The period prescribed for giving notice of appeal “in an appeal in a criminal case”, that this case is (by virtue of Section 27(2)(b) of the Supreme Court Act), is “thirty days from the date of the decision appealed against.” This appeal, even as at the date the notice of appeal was purported filed as of right on 9 May 2017 was “dead on arrival”.

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My lords, where the notice of appeal is defective and incompetent, the appeal ipso facto is incompetent: Olowokere v. African Newspapers (Nig.) Ltd (1993) 5 NWLR (Pt. 295) 583 at 586. The mere fact that leave was granted, on 17 October 2019, to the appellant to file and argue 18 additional grounds of appeal does not regularize this incompetent appeal. In Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592, (2009) 4 – 5 SC (Pt. 3) 123, (2009) LPELR – 140 (SC), citing with approval its previous decisions in Awhinahwani & Anor. v. Oteri & Ors. (1984) 5 SC 38 at 42 and Orakosim v. Menkiti (2001) FWLR (Pt. 52) 2068, (2001) 9 NWLR (Pt. 719) 529, (2001) 5 SC (Pt. 1) 72, (2001) 5 SCNJ 1 at 10, (2001) 87 LRCN 1536, this Court re-stated the position of law on this unequivocally that if the original notice of appeal was defective, no additional grounds of appeal could be hung on it, in view of the fact that there being no appeal, in the first place, the additional ground will have no appeal to hang on. Tobi JSC, at pages 26 – 27 stated in addition –

“The noun “addition” means adding numbers together. The adjective “additional” involves the idea of joining or uniting one thing to another thereby forming an aggregate and so the thing in whole exists as an aggregate.

Accordingly, one only add to an existing thing. One cannot add a non-existing thing. It is both a legal and factual impossibility. – This is because one can only add something to something. One cannot add something to nothing.” (Italicize supplied).

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See also Macfoy v. United Africa Company Ltd (UAC) (1962) 5 SCNLR 152, (1962) AC 150, (1961) 3 WLR 1405, (1961) 3 All NLR 1169 where lord Denning stated that one cannot place something upon nothing and expect it to stay.

My lords, there is only one course open to us in this appeal. The appellant had filed, as of right, a notice of appeal in clear disobedience of the unambiguous provisions of Section 27(2)(b) of the Supreme Court Act. The original notice of appeal is therefore invalid, null and void. In law, the void and invalid notice of appeal is a non-existing thing. It follows therefore that the “amended notice of appeal,” an attempt to add something to nothing, is, by reciprocity, also a nullity – being a futile attempt to regularize an incompetent appeal. This appeal, including the grounds of appeal and the two issues formulated for its determination by the parties herein from the incompetent appeal, is also incompetent.

​It is only a valid and or competent notice of appeal that activates the jurisdiction of an appellate Court. A notice of appeal, that is void ab initio, is invalid and incapable of activating the jurisdiction of an appellate Court. The law is settled that an appellate Court has the inherent jurisdiction to raise the issue of jurisdiction suo motu: Aderibigbe v. Abidoye (supra) at 27. I have done just exactly that here in this appeal.

I will proceed no further in the appeal. An incompetent appeal suffers one natural consequential fate – its liability to be struck out for incompetence. Accordingly, this appeal, the notice of which was filed out of time, as of right, on 9 May 2017, shall be and is hereby struck out.

Appeal struck out.


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