CORAM

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Muhammed Lawal Shuaibu Justice Court of Appeal

Boloukuromo Moses Ugo Justice Court of Appeal

Usman Alhaji Musale Justice Court of Appeal

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PARTIES

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ABDULHAMID SHEHU

APPELLANTS 

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KANO STATE

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The accused person was arraigned before the lower Court on two counts charge of rape and act of gross indecency punishable under Sections 283 and 285 of the Penal Code (Amendment No. 12) Law, 2014. The Appellant pleaded not guilty to the charge and the matter went to trial wherein the prosecution called witnesses and tendered the Accused’s extra-judicial statements, marked Exhibit “A” and “B”. The accused called one witness and also testified in his own defense. At the end of the trial and in the judgment delivered, learned trial Judge found the Accused guilty.

Dissatisfied by the decision, the Appellant filed an instant appeal.

 

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HELD

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Appeal dismissed

 

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ISSUES

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Whether the lower Court was right in convicting and sentencing the appellant on two offences with similar elements and facts?

 

 

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RATIONES DECIDENDI

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NOTICE OF APPEAL – THE IMPORTANCE OF A NOTICE OF APPEAL

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It is settled that a notice of appeal is the spinal cord of an appeal. Thus, the foundation upon which an appeal is based, being the originating process which sets the ball rolling, where it is defective, no proper appeal can stand. It will collapse. An incompetent notice of appeal deprives a Court of jurisdiction to hear the appeal. The provisions of Order 7 Rule 6 of the Court of Appeal Rules, 2021 empowers the Court to strike out an incompetent notice of appeal, provided that where the incompetence is not a fundamental defect, the Court may direct a party to rectify any defect in the notice of appeal and limit the time within which the defect shall be rectified. – Per M. L. Shuaibu, JCA

 

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ISSUES – WHETHER MORE THAN ONE ISSUE CAN ARISE FROM ONE GROUND OF APPEAL

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An issue can only be distilled or arise from one or more grounds of appeal, as such, more than one issue cannot arise from one ground of appeal. When that happens, it is said to amount to a proliferation of issues. It was held in plethora of authorities that issues for determination must not be so prolific and proliferate as to be more in number than the grounds on which they are based. See Akinyede Olaiya Vs The State (2017) LPELR-43714 (SC). – Per M. L. Shuaibu, JCA

 

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GROUND OF APPEAL – CONDUCT OF COURTS WHERE NO ISSUE IS DISTILLED FROM A GROUND OF APPEAL

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It is also trite that when an Appellant failed to distill issue from any ground of appeal, such ground of appeal is deemed as abandoned and liable to be struck out. See Hi-Tech Construction Ltd Vs Onomuabo-Righo (2018) LPELR 45193 (CA). – Per M. L. Shuaibu, JCA

 

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ISSUES – WHERE AN ISSUE IS NOT CONTESTED BY THE OTHER PARTY

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The Supreme Court in the case of Nwanko & Ors Vs Yar’Adua & Ors (2010) 12 NWLR (Prt 1209) 518, per Onnoghen, JSC (as he then was) held as follows:

“It is settled that where an opponent fails or neglects to counter any argument or issues validly raised in the brief of argument or during oral presentation, the issue not so contested is deemed conceded by the defaulting opponent.”– Per M. L. Shuaibu, JCA

 

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GROUND OF APPEAL – WHETHER A SINGLE GROUND OF APPEAL CAN SUSTAIN AN APPEAL

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Ordinarily, the Appellant’s ominous silence on the incompetence of the identified grounds of appeal would have amounted to conceding the said pivotal issues. However, there are still competent grounds which the Respondent is not complaining about.

The fact is that one competent ground of appeal is sufficient to sustain an appeal. – Per M. L. Shuaibu, JCA

 

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PRELIMINARY OBJECTION – WHETHER A PRELIMINARY OBJECTION IS THE APPROPRIATE PROCESS FOR CHALLENGING A FEW GROUNDS OF APPEAL AS OPPOSED TO THE WHOLE APPEAL

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In the instant case, the notice of preliminary objection only attacked four out of the six grounds of appeal and not the entire grounds. The implication is that the Respondent is not attacking the appeal in its entirety. Thus, if the preliminary objection succeeds, four grounds of appeal would be struck out along with three issues formulated therefrom. There would still be two grounds and one issue formulated therefrom which would sustain the appeal. In the circumstance, a notice of preliminary objection ought not to have been filed in the first place. Rather, a motion on notice attacking the allegedly incompetent grounds should have been filed. In consequence thereof, the notice of preliminary objection of the Respondent is inappropriate. See EFCC Vs Yanaty Petrochemical Ltd (2017) 3 NWLR (Prt 1552) 171 at 190, Adejumo Vs Olawaiye (2014) 12 NWLR (Prt 1421) 252 and Daniel Vs INEC (2015) 9 NWLR (Prt 1463) 113. – Per M. L. Shuaibu, JCA

 

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PROLIFERATION OF ISSUES – CONDUCT OF COURTS TO PROLIFERATED ISSUES

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As rightly posited, an issue can only be distilled or arise from one or more grounds of appeal and therefore more than one issue cannot arise from one ground of appeal. In the instant case, issues Nos. 1 and 2 have been raised from ground 1 and likewise, issues 2 and 3 have been raised from the said ground 2 of the notice of appeal. Clearly, the Appellant has partaken in proliferation of issues Nos. 1, 2, and 3. These issues are therefore incompetent and liable to be struck out. It is so because a proliferated issue is dead and unusable as the abnormality is incurable. See Olusola Adeyemi Vs The State (2014) LPELR-23062 (SC), Attahiru Vs State (2020) LPELR-51092 (CA) and Amadi Vs State (2023) LPELR-59907 (CA). In Adeleke & Anor Vs Adejumo (2022) LPELR-58176 (CA) it was emphatically held that an issue can be formulated or distilled from several grounds of appeal, a ground of appeal cannot give rise to more than one issue for determination. Where the latter is the case, the said issue is incompetent and must be struck out and likewise, the ground(s) of appeal from which the issues were distilled. – Per M. L. Shuaibu, JCA

 

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DOUBLE JEOPARDY – MEANING AND ESSENCE OF THE DOCTRINE OF DOUBLE JEOPARDY

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It is instructive to note that double jeopardy is a procedural defense that prevents an accused person from being tried again on same or similar charges and on the same facts. The doctrine of double jeopardy therefore prohibits a person being tried or punished twice for the same offence with same set of facts. The principle of double jeopardy is enshrined as a fundamental rights under Section 36(9)&(10) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which reads thus:

“(9) No person who shows that he has been tried by any Court of competent jurisdiction or Tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior Court.

(10) No person who shows that he has been pardoned for a criminal offence shall again be tried for that offence.”

The doctrine which epitomizes the rule against double jeopardy is revered and very vital to the protection of personal freedom. It thus underpins the legitimacy of the common law rule which ordains that a man should not be put in peril twice on a charge for the same offence. See Nafiu Rabiu Vs Kano State (1980) LPELR-2936 (SC), Imade Vs IGP (1993) 1 NWLR (Prt 271) 608, Barmo Vs The State (2000) 1 NWLR (Prt 641) 424 and Sunday Vs State (2017) LPELR-42140 (CA). Also in Onodavwerho Vs FRN (2022) LPELR-56692 (CA), it was held that the principle of double jeopardy reflects the importance of finality in the criminal justice system and protects against incompetent results. – Per M. L. Shuaibu, JCA

 

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DOUBLE JEOPARDY – FACTORS TO BE PROVED IN APPLYING THE DOUBLE JEOPARDY DOCTRINE

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…However, for the plea of autrefoit acquit or autrefoit convict to succeed, the following factors must be proved to the Court’s satisfaction: (1) that the Accused had previously been tried on a criminal charge, (2) the former trial must have been conducted before a Court of competent jurisdiction, (3) the trial must have ended with an acquittal or conviction, (4) the criminal charge for which the Accused was tried should be the same as the new charge against him or alternatively, the new charge should be one in respects of which the accused could have been convicted at the former trial, although not charged with it. – Per M. L. Shuaibu, JCA

 

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COURTS – WHETHER COURTS CAN CONVICT AN ACCUSED FOR AN OFFENCE OTHER THAN THE ONE HE IS CHARGED WITH

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The relevant provisions of Section 238 of the Administration of Criminal Justice Law of Kano State, 2019 provide as follow:

“Where on trial for rape, defilement, incest, unnatural or indecent offences against a person, the facts proved in evidence can ground conviction for indecent assault and not the offence with which the defendant is charged, he may be convicted of the offence of indecent assault and be punishable as if he had been convicted in a charge with indecent assault.”

Similarly, Section 242 of the extant law provides:

“(1) Where a defendant is charged with an offence consisting of several particulars, a combination of some of which constitute a lesser offence in itself and the combination is proved but the remaining particulars are not proved, he may be convicted of, or plead guilty to the lesser offence although he was not charged with it.

(2) Where a defendant is charged with an offence and fact are proved which reduced it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it.”

Furthermore, Section 235(1) of the ACJL, 2019 thereof is to the effect that where on the trial of a defendant for a lesser offence, it appears that the fact proved in evidence amount in law to a higher offence not charged, the defendant shall not by this reason be acquitted of the lesser offence.

What the above cumulatively shows is that Courts are vested with the power to convict for offence not expressly charged where the facts prove in evidence support a conviction for an offence other than that with which the accused is charged. Thus, the accused in such circumstance, may be found guilty of that other offence and punished accordingly. It represents an exception to the general rule that an accused person can only be found guilty in respect of the offence for which he is charged. This occurs where the evidence adduced by the prosecution in support of the charge against the accused has failed to support a conviction for that charge but fully established the commission by the accused of a kindred of offence. It is in this respect interest rei pubeicae ut sit finis litium, that Courts are empowered to convict an accused person other than the one with which he is expressly indicted on the charge. See Babalola Vs State (1989) 7 SC (Prt 1) at 112. – Per M. L. Shuaibu, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Penal Code (Amendment No. 12) Law, 2014.

3. Court of Appeal Rules, 2021

4. Administration of Criminal Justice Law of Kano State, 2019.

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