CORAM
DENNIS ONYEJIFE EDOZIE JUSTICE, SUPREME COURT
PARTIES
SAMUEL OSARO IYAMU APPELLANTS
ATTORNEY GENERAL OF THE FEDERATION RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellant along with three other accused persons were charged at the High Court of Lagos State on six count charge viz; organizing foreign travel towards promoting prostitution contrary to section 16 of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, and procurement of persons for prostitution contrary to a punishable under section 15(a) of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003. The Appellant was found guilty and sentenced to ten years’ imprisonment each on counts 1, 2, 3 and counts 4, 5, 6 which sentences were to run concurrently. Aggrieved by the decision of the trial court, the Appellant has appealed to this court.
HELD
Appeal Allowed
ISSUES
Whether the sentence passed on the appellant were excessive. (Ground 7 of amended notice of appeal) Whether having found that the ages of the victims were not established, then the appellant ought not to have been discharged or acquitted on count 1, 2, 3, 4, 5, and 6 of the Information dated 6th of July 2006. (Ground 3 of amended notice of appeal).
RATIONES DECIDENDI
PRELIMINARY OBJECTION- PRELIMINARY OBJECTION MUST FIRST BE HEARD AND DETERMINED
“It is important to first of all determine the preliminary objection raised by the Respondent. This is because the objection goes to the root of the appeal; it is challenge to the jurisdiction of this Court to hear and determine the appeal, and must therefore be heard and determined first before the appeal is heard. See Saleh V. Monguno [2003] 1 NWLR (PT. 89) 221.Preliminary objection has the effect of scuttling the appeal if it eventually succeeds; the aim is usually to prevent the Court from hearing and determining the issues distilled from the grounds of appeal challenged. Whether the objection is aimed at attacking the entire grounds of appeal or not, the settled position of the law is that the objection must first be heard and determined before any further action is taken on the substantive appeal. See: Chief U.M. Efet Vs. INEC & Others (2011) 3SCM 63 at 761, Yaro Vs. Arena Consruction Ltd, & Others, 6 SCNJ 418, Oni & Others Vs. Fayemi & Others, (2013) 12 NWLR (Pt. 1369) 421, Akeredolu Vs. Mimiko & Others (2014) 1 NWLR (Pt. 1388) 402 at 432, and Rochas Vs. PDP & Others (2014) 1 SCM 163 at 785”.
BRIEF OF ARGUMENT – ESSENCE OF BRIEF OF ARGUMENT
“In the Court of Appeal, briefs constitute the pivot for the determination of issues canvassed by parties in every appeal. The briefs are clear representation of what parties seek to rely upon in an appeal. Where an Appellant for some reasons chose to remain passive, complacent, indolent and inactive and fails to react to new issues in Respondents brief, or answer preliminary objection raised by the Respondent in his brief, the law will presume that the Appellant has conceded to the points raised in the objection by the Respondent. See Nnamani Vs. Nnaji, (1999) 7 NWLR (Pt. 610), 313, Akanbi Vs. Alatede (2000) FWLR 928, and Iro Vs. Echewendu (1996) 8 NWLR (468) 629 at 636”. PER T. ABUBAKAR, J.C.A PRELIMINARY OBJECTION- DUTY ON THE COURT TO SCRUTINIZE PRELIMINARY OBJECTION
PRELIMINARY OBJECTION- DUTY ON THE COURT TO SCRUTINIZE PRELIMINARY OBJECTION “The law still requires that the preliminary objection filed by the Respondent be scrutinized by the Court to determine whether it is deserving of consideration and eventual grant by the Court or not. In other words, failure to file reaction to preliminary objection by the Appellant does not automatically make the Respondent entitled to the prayer. The Court must go further to consider whether the objection is sustainable in law or not. See: Agbalaka Vs. Okojie (2004) 15 NWLR (897) 503 at 522.Similar situation arose before this Court in Abbas Abdullahi Machika Vs. Shehu Inuwa Imam & Others (2010) LPELR-4448 (CA), where GARBA JCA said as follows: “The law in its wisdom says that in spite of the absence of an answer to such points raised in the preliminary objection, and therefore conceding to them by the Appellant, the preliminary objection is not to be automatically upheld by the Court. In other words, the absence of a Reply brief from the Appellant and his deemed concession to the preliminary objection, success thereof is not automatic and the Court has a duty to consider if it is sustainable in law”.
GROUND OF APPEAL – FORM OF A VALID GROUND OF APPEAL
“A valid ground of appeal must be set out clearly under a distinct head; it must also not be vague or general in terms; it must disclose reasonable ground of appeal; the only exception is where the grounds constitute general ground of appeal alleging that the decision is against the weight of evidence and such ground falls short of the attributes listed in Order 6, same shall not be permitted or held to be competent by the Court. This provision of the Rules of this Court found support in the Supreme Court decision in Olufeagba V. Abdul-Raheem (2009) LPELR- 2613 SC where the Court held as follows: “…A ground of Appeal can only be competent if the particulars and nature of the alleged misdirection or error is clearly stated. The grounds must not be argumentative, vague or general in terms. It must disclose reasonable complaint against a ratio decidendi in the decision as opposed to an obiter dictum. A ground of appeal must be directed at the decision of the Court below. The particulars to a ground of appeal must be in tandem with it. If the particulars are at cross-purpose to the ground of appeal, it becomes defective and liable to be struck out. See Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546; Honika Sa Whill Nig. Ltd. V. Hoff(1994) 2 NWLR (Pt. 326) 22.”
RIGHT OF APPEAL – DISTINCTION IN THE RIGHT OF APPEAL AGAINST A FINAL DECISION OF THE FEDERAL HIGH COURT OR A HIGH COURT AND INTERLOCUTORY APPEALS
“A close perusal of section 241(1)(a) (b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) in my view appears to confer a general right of appeal against final decision of the Federal High Court or a High Court exercising its original jurisdiction and right of appeal in such circumstance is automatically conferred on the litigant irrespective of the nature of the ground of appeal. It also deals with non-final appeals (interlocutory appeals) and double appeal, where the Federal High Court or a High Court sits on appeal where the ground involves questions of law alone. Under section 242(1) of the Constitution of the Federal Republic of Nigeria 1999(as amended), it is explicit that appeals are with the leave of either the High Court or the Court of Appeal”.
BRIEFS – ESSENCE OF BRIEFS
“Briefs are essentially to promote justice and assist in the administration of justice by simplifying the work of Counsel and the Court.”
CRIMINAL PROCEEDING – WHETHER STATEMENT OF A CO-ACCUSED PERSON IS EVIDENCE AGAINST AN ACCUSED PERSON – SECTION 199 EVIDENCE ACT 2011
“It is trite law that the statement of a co-accused is no evidence against an accused who has not adopted the statement. Section 199 of the Evidence Act, 2011 states: “Where defendants are tried jointly and any of them gives evidence on his own behalf which incriminates a co-defendant, the defendant who gives such evidence shall not be considered to be an accomplice.”
SUSPICION – WHETHER SUSPICION CAN BE A GROUND FOR CONVICTION
“Until proven guilty, an accused is presumed innocent and suspicion in law no matter how strong cannot be a ground for conviction in the absence of concrete, cogent and convincing evidence. See: Ajose v The State [2002] 7 NWLR (PT 766) 302; Bello Vs The State (2011) LPELR – 8834 (CA); Onah v State [1985] 3 NWLR (PT 12) 236. The law is also settled that where there is doubt in the minds of the court in a criminal trial, it must be resolved in favor of the accused.”
ISSUES FOR DETERMINATION- DUTY ON COURTS TO PRONOUNCE ON ALL ISSUES SUBMITTED FOR DETERMINATION
“I am conscious of the settled position of the law that intermediate Courts must pronounce on all issues submitted for determination”.
PROOF OF GUILT OF AN ACCUSED PERSON – MODE OF RESOLVING AN EXISTENCE OF DOUBT IN THE CASE OF THE PROSECUTION
“The duty of the prosecution is to prove the guilt of an accused person beyond reasonable doubt and not that of the accused person to prove his own innocence. Where any doubt arises in the case of the prosecution, same must be resolved in favour of the accused person. See Ogundiyan v The State [1991] 3 NWLR (PT 181) 519; Dibie & Ors Vs The State [2007] 9 NWLR (Pt 1038) 30; Eke V The State [2011] LPELR – 1133 (SC).”
CASES CITED
Not available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999 (as amended)Court of Appeal Rules, 2011 Evidence Act, 2011Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003|