The State V. Benedict Aro & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment)

The respondents herein were in charge NO HAB/7C/2008 in the Ebonyi State High Court sitting at Abakaliki on 28 – 07 – 2008 arraigned upon an information containing a charge with one count of murder. Following the not guilty plea of each respondent, trial commenced.

The appellant elicited evidence through five witnesses (PW1, PW2, PW3, PW5) to prove the counts of murder against the respondents. Following the close of evidence by the appellant, the learned SAN for the respondents made a no case submission urging the trial court to dismiss the charge against them. The appellant replied to the no case submission, urging that the evidence it elicited disclosed a prima facie case against the respondents which they were bound to defend.

On the 29 – 07 – 2010, the trial court ruled upholding the 2nd to 8th accuseds’ no case submission and dismissing that of the 1st accused holding that he has a case to answer. The trial court discharged the said 2nd to 8th accuseds. Dissatisfied with this decision of the trial court, the appellant on 4 – 8 – 2010 commenced this appeal No. CA/E/318/2010 by filing a notice of appeal containing two grounds of appeal.

The amended notice of appeal containing the same number of grounds is dated 10 – 05 – 2013 and filed on 13 – 05 – 2013. The 2nd to 8th accuseds are the respondents herein.

The parties to this appeal have filed their briefs of argument as follows-amended appellant’s brief of argument respondent’s brief of argument and appellant’s reply brief of argument.

The appellant in its brief of argument raised one issue for determination as follows – “Whether in view of the evidence adduced by the prosecution before the lower court, the learned trial judge was justified in holding that a prima facie case of murder was not made out against the respondents to warrant their entering into defence.”

The respondents adopted the sole issue for determination raised by the appellant.

The Learned SAN for the respondents’ opened the argument in the respondents brief by contending by way of preliminary objection that Ground 1 of this appeal is incompetent and should be struck out because what it complained against is not what the trial court decided in its ruling.

According to the Learned SAN, the trial court decided that the prosecution having led evidence to show that the respondents disobeyed an order to shoot at the deceased, they cannot be held responsible for the same act which they refused to carry out” and that “it is not the decision of the lower court that a case of common intention was not made out against the respondents.

He then argued that since the lone issue raised by the appellant for determination in this appeal is based on the two grounds of this appeal, and one of them is incompetent, the issue is thereby rendered incompetent as an issue derived from an incompetent ground of appeal is itself incompetent.

The Learned SAN relying on the decisions in NWANWUNA V. NWAEBILI (2011) 4 NWLR (Pt. 1237) 290 AT 309, APGA V OHAKIM (2009) NWLR (pt 1130) 116 AND INEC V ACTION CONGRESS (2009) 2 NWLR (PT 1126) 524 AT 584 emphasized that where an appellant argues his appeal on the basis of an issue couched from incompetent and competent grounds of appeal, it is not the business of the Court of Appeal to sift through the argument to identify and sever the part that touches on the competent ground from the part that touches on the incompetent ground, as such an issue is deemed incompetent.

He then argued that since the single issue for determination in the appellant’s brief of argument is incompetent, it will be right to say that the brief is not supported by issues for determination and is therefore incompetent and should be struck out.

Learned Counsel for the appellant replied to this preliminary objection in the appellant’s reply brief. He argued that there was no reason or basis for the objection and juxtaposed the exact wordings of parts of the ruling of the trial court and ground 1 of this appeal to show that the complain in ground 1 is against what the ruling of the trial court decided. He urged that the preliminary objection be dismissed.