Prince Lukman O. Ajose V. Federal Republic Of Nigeria (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A. (Delivering the Leading Judgment)

The Appellant, the erstwhile Chairman of Lagos Island Local Government, Lagos, was arraigned on 17th July, 2007 before Oyewole, J. of the Lagos State High Court on a six counts charge of using his office to confer a corrupt advantage upon himself by collecting various sums of money for meetings and conferences which he never attended any. He pleaded not guilty to the charge.

The prosecution called six witnesses after which the Appellant made a no case submission which was overruled. The Appellant later gave evidence on his own behalf. At the end of the proceedings, the learned trial Judge acquitted the Appellant in counts 3 and 4 and convicted him in counts 1, 2, 5 and 6 and sentenced him to 2 years imprisonment without option of fine. The said Judgment was delivered on 31/3/2010.

Dissatisfied with the conviction and sentence handed down by the learned trial Judge, the Appellant filed Notice of Appeal dated 15/4/10 on 16/4/10. Three grounds of appeal are contained in the said Notice of Appeal. From the three grounds of appeal, the learned counsel for the Appellant, has distilled one issue for determination.

The issue states.-

“whether or not the trial Judge’s reasons for discharging and acquitting the Appellant on counts 3 and 4 are equally applicable to counts 1, 2,5 and 6 so as to discharge and acquit the Appellant on the same score”.

The learned counsel for the Respondent also formulates one issue identical to that of the Appellant but couched differently. It says:-

“Whether the trial Judge’s reasons to acquit the Appellant in counts 3 and 4 were applicable to counts 1 , 2, 5 and 6 when the evidence and exhibits tendered in support of each of them were not the same”.

Clearly, this appeal is to be determined on one narrow issue.

Whether I adopt the issue as couched by the Appellant or the Respondent, I shall arrive at the same goal post as both are saying the same thing though that of the Respondent is more explicit. I shall therefore adopt the issue as couched by the Respondent in determining this appeal.

At the hearing of this appeal, the learned counsel for the Respondent was absent though duly served with hearing notice. No reason at all was given for his absence. In view of the fact that briefs were filed and exchanged and in keeping with Order 17, Rule 9(a) of the court of Appeal Rules, 2007, the brief of the Respondent was deemed argued. However, before the briefs were adopted and argued, the learned counsel for the Appellant applied that the Notice of Preliminary Objection by the Respondent and the arguments made therein be struck out since the Respondent’s counsel was absent and unable to move the court accordingly. The said Notice of Preliminary Objection was struck out by this court. Also struck out was the Appellant’s reply thereof.

Before considering the argument of both counsel, let me quickly point out here that certain matters have been imported into this issue while making submissions and I think it is appropriate to let the parties know that those arguments shall be discountenanced in this appeal as they do not add to or subtract from the narrow issue submitted for the determination of this appeal. The arguments stuffed into this issue relate to non-tendering of the petition on which the prosecution’s case was based, non mention of the name of the petitioner or that the said petitioner was not called as a witness, issue of retirement of money allegedly collected and the mention of local seminars for the first time in court. These are issues outside what is before us. The learned counsel for the Respondent had pointed out these issues in his reply and I quite agree with him that these are matters not contemplated by the issue for determination. Moreover, these are issues not covered by the grounds of appeal. Issues for determination and the argument based on them must derive from a valid ground of appeal.

Any issue not flowing from a ground or groups of grounds of appeal is incompetent and any argument made therein is also incompetent and ought to be struck out. See A. B. U. v. Molku (2004) All F.W.L.R. (pt.228) 664; Okoye v. Nigeria Construction and Furniture Co. Ltd. (1991) 6 N.W.L.R. (pt.49) 509; Abodanrin v. Arabe (1995) 5 N.W.L.R. (pt.393)77.

In order to appreciate the argument of both counsel on the issue, I wish to bring to the fore the Judgment of the learned trial Judge in respect of counts 3 and 4. On page 191 of the record, the learned trial Judge, after stating the offence in count three, went on to state as follows:-