CORAM

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Uwani Musa Abba Aji-Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa-Justice of the Supreme Court of Nigeria

Emmanuel Akomaye Agim-Justice of the Supreme Court of Nigeria

Stephen Jonah Adah-Justice of the Supreme Court of Nigeria

Jamilu Yammama Tukur-Justice of the Supreme Court of Nigeria

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PARTIES

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ABBAS USMAN (A.K.A GERO)

APPELLANTS 

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THE STATE

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CRIMINAL LAW, EVIDENCE LAW, PRACTICE AND PROCEDURE, PROLIFERATION OF ISSUES, FAIR HEARING, RAPE, CRIMINAL CONSPIRACY, PREVIOUS TESTIMONY, SECONDARY EVIDENCE

 

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SUMMARY OF FACTS

On October 4, 2017, at around 01:50 hours, one Mr. Hassan Abdullahi, accompanied by Hauwa’u Suleiman and Fatima Ahmed, was traveling to Yelwa Area in Bauchi Metropolis via tricycle. Near A.Y.M. Shafa Filling Station, their tricycle broke down. While they attempted to repair it, the appellant and two other men, armed with cutlasses, approached and attacked them. They forcibly abducted Hauwa’u Suleiman, along with her belongings, and fled on a motorcycle.

The abductors took Hauwa’u to a location near Old Airport, Bauchi, and held her captive for a day, during which they threatened her with cutlasses. Each of them then took turns raping her during the period of her abduction. The appellant, as the 2nd accused person, and two others were arraigned before the trial court and pleaded not guilty to the charges.

Initially, the case was heard before High Court No. 6, Bauchi State, presided over by Gurama, J. (now retired), where two prosecution witnesses, Hauwa Suleiman (PW1, the victim) and Hassan Abdullahi (PW2), testified on July 19, 2018. Upon the retirement of Gurama, J., the case was transferred to High Court No. 4, presided over by Sambo, J., and the matter commenced de novo. The prosecution tendered certified true copies of the previous testimonies of the two witnesses as Exhibits ‘A’ and ‘B’, which were admitted without objection from the appellant’s counsel.

At the end of trial, the trial court found the appellant and two co-accused persons guilty of conspiracy and rape and sentenced them to ten years imprisonment and life imprisonment respectively. The Court of Appeal dismissed the appellant’s appeal, and he further appealed to the Supreme Court.

 

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HELD

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1.The appeal was dismissed for lacking merit.

2.The Court held that proliferation of issues occurs where more than one issue is raised from a ground of appeal, which is reprehensible and causes procedural inefficiency.

3.The Court found that the Court of Appeal was wrong to strike out Issue 1 which was properly anchored on grounds 1, 2 and 3, but was correct to strike out Issues 2, 3 and 4 which were proliferated.

4.However, the Court held that no miscarriage of justice occurred because the respondent’s sole issue was broader and more encompassing, and the appellant had fully addressed it in his reply brief.

5.The admission of previous testimony under Section 46(1) of the Evidence Act 2011 was proper as all conditions were satisfied.

6.The conviction was upheld as the prosecution proved its case beyond reasonable doubt.

 

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ISSUES

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1.Whether the refusal and failure of the Court below to call parties in the appeal before it to address the Court on the issue of proliferation of issues for determination did not shut the door against the appellant’s right to fair hearing and thereby occasioned a miscarriage of justice?

2.Whether the Court below had jurisdiction to enter an order dismissing the appellant’s appeal when the whole issues submitted for determination were not decided on their merit?

3.Whether the Court below was right when it visited the error of counsel on the appellant based on an alleged perceived mistake or inadvertence on proliferation of issues for determination thereby occasioned miscarriage of justice?

 

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RATIONES DECIDENDI

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PROLIFERATION OF ISSUES – DEFINITION AND REPREHENSIBILITY

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“Proliferation of issues occurs where more than one issue is raised from a ground of appeal. This Court has over the years in a plethora of decisions warned against proliferation of issues. This Court has always warned that proliferation is reprehensible as it causes, above all, procedural inefficiency and confusion leading to the wastage of judicial time.” – Per STEPHEN JONAH ADAH, JSC

 

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PROLIFERATION OF ISSUES – DANGER AND OBSCURING OF MAIN ISSUES

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“The danger in allowing proliferation is the fact that the main legal issues which are germane may become obscured by the multitude of irrelevant ones. It is disturbing that inspite of all the warnings and counselling by this Court proliferation of issues remains a daunting issue.” – Per STEPHEN JONAH ADAH, JSC

 

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GROUNDS OF APPEAL – PURPOSE AND FAIR HEARING

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“Let me clearly say here that the overall purpose of grounds of appeal is to enhance the fundamental right of fair hearing of the respondent by giving him notice of the case he is going to meet and address at the appellate Court. It is aimed at avoiding surprise, ambush and embarrassment to the other side.” – Per STEPHEN JONAH ADAH, JSC

 

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GROUNDS OF APPEAL – NATURE AND PURPOSE

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“It is settled law that a ground of appeal is basically a highlight of the error of law or fact or mixed law and fact made by the Court in the decision sought to be set aside in the appeal. It is the sum of total of the reason(s) why the decision on appeal is considered by learned counsel for the appellant to be wrong and liable to be set aside.” – Per ONNOGHEN, JSC (as he then was)

 

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GROUNDS OF APPEAL – SUBSTANTIAL NATURE AND RATIO DECIDENDI

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“It follows therefore that for a ground of appeal to be capable of achieving the purpose of setting aside the decision appealed against, it has to be very substantial and must relate to the ratio of the decision, not directed at the obiter dictum of the Court or in the judgment.” – Per ONNOGHEN, JSC (as he then was)

 

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PROLIFERATION OF ISSUES – PROPER APPROACH TO MULTIPLE GROUNDS

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“It is justice decked with dexterity, poised and proficiency to have many grounds of appeal boxed into an issue rather than having many issues framed from one ground of appeal. The latter is antithetical to the interest of justice and the appellate Court is at liberty to strike down any issue of proliferation.” – Per STEPHEN JONAH ADAH, JSC

 

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PROLIFERATION OF ISSUES – COURT’S AUTHORITY TO STRIKE OUT

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“While it is permissible to formulate one issue from several grounds of appeal, it is not proper to formulate more than one issue from a single ground of appeal.” – Per STEPHEN JONAH ADAH, JSC

 

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PROLIFERATION OF ISSUES – CARE IN CRIMINAL APPEALS

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“When there is an issue of proliferation, care and caution must be deployed particularly in a criminal appeal where personal liberty of the appellant is prime to ensure that the proverbial baby is not thrown away with the Bath water. Any issue that is qualified must be given its due consideration to avoid any semblance of a miscarriage of justice.” – Per STEPHEN JONAH ADAH, JSC

 

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COUNSEL’S MISTAKES – COURT’S ATTITUDE TOWARDS LITIGANTS

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“It is trite law that the Court does not normally punish a litigant for the mistake of his counsel.” – Per ONU, JSC

 

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COUNSEL’S MISTAKES – PROCEDURAL MATTERS AND JUDICIAL DISCRETION

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“The Courts will generally not punish a litigant for the mistake or inadvertence of his counsel when the mistake or inadvertence is in respect of procedural matters and in such a case the discretion of the Court, although always required to be exercised judicially, would be exercised with a leaning towards accommodating the parties’ interest and determination of the case on the merits.” – Per ESO, JSC

 

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PREVIOUS TESTIMONY – CONDITIONS FOR ADMISSIBILITY

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“This section of the law lays down the condition under which secondary evidence of the testimony of a witness given in a former proceeding, be it civil or criminal is admissible in a subsequent proceedings, or in a later stage of the same proceedings. This is premised on the position of the law that the best evidence available must always be produced and used by the Courts so that the right of litigants are correctly decided.” – Per STEPHEN JONAH ADAH, JSC

 

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PREVIOUS TESTIMONY – CAUTION IN EXERCISE OF POWER

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“The power under Section 46(1) must at all times be exercised with great caution.” – Per STEPHEN JONAH ADAH, JSC

 

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RAPE – MEDICAL EVIDENCE NOT ALWAYS NECESSARY

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“In our law, it is not only medical evidence that can prove in a trial Court that the victim was raped or violated. If there are circumstantial evidence corroborating the evidence of the prosecutrix that she was raped, the conviction would not be voided.” – Per STEPHEN JONAH ADAH, JSC

 

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CASES CITED

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria 1999 (as amended)

Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended)

Section 36(6)(c) of the Constitution of Nigeria 1999 (as amended)

Section 4(1) of the Bauchi State (Special Provision) Law 2017

Section 1(1) of the Bauchi State (Special Provision) Law 2017

Sections 4 and 11 of The Kidnapping, Theft of Cattle and Rape (Bauchi State Special Provision Law) 2017

Section 46 of the Evidence Act 2011

Section 46(1) of the Evidence Act 2011

Section 39 of the Evidence Act 2011

Section 239(1) of the Criminal Procedure Code

Order 7 Rule (3) of the Court of Appeal Rules

Order 11 Rule (3) of the Supreme Court Rules 2024

 

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