Solomon Thomas Akpan V. The State (1992)

LawGlobal-Hub Lead Judgment Report

OMO, J.S.C. 

The appellant here was charged in the High Court of Cross-River State with the murder of one Akpan Peter Udombang, an offence contrary to Section 319 (1) of the Criminal Code. After a trial in which the prosecution called ten witnesses and the appellant only testified in his defence, the learned trial Judge in a reserved judgment found the appellant guilty of murder as charged and sentenced him accordingly.

One appeal to the Court of Appeal, against his conviction and sentence, counsel on his behalf canvassed in his brief the validity of the conviction which he alleged was based on retracted statements of the appellant which were wrongly regarded as confessions, the evidence of tainted witnesses, and failure to prove the cause of death of the alleged victim. Briefs were duly filed by the parties and fully adopted without further expatiation by counsel for them in oral argument. In a majority judgment delivered on 7th March, 1989, the Court of Appeal held the appeal to be lacking in merit, dismissed same and affirmed the conviction and sentence of the trial High Court.

This appeal is against that decision of the Court of Appeal. Three issues were set out by the appellant for determination in his brief, as follows:-

“(i) Whether the Court of Appeal was right to have received argument presented before it by the Respondent in the Court of Appeal when such argument ran totally contrary to the issues formulated by the said Respondent for the determination of the court.

(ii) Was it proper for the Court of Appeal to have held that Exhibits D and E on which the trial court relied heavily for the conviction of the Appellant qualified as confessional statements while whatever P.W.2 reportedly heard from the deceased was a ‘Dying Declaration’ or ‘Res Gestae’

(iii) Was the Court of Appeal right to have affirmed the decision of the trial court when the case against the appellant was not proved according to law”

The respondent in its brief advanced the following three issues for determination:-

(i) Whether the issues in the Respondent’s Brief of Argument attracting adverse comments by the Honourable Justices of the Court of Appeal and reformulated by them rendered the Brief defective and thereby occasioned a miscarriage of justice.

(ii) Whether the Court of Appeal was right in affirming the trial Judge’s findings of the extra-judicial statements of the appellant.

(iii) Whether the Court of Appeal was right in upholding the findings of the learned trial Judge rejecting the defences of the appellant.

The first issues formulated by both sides address the same subject-matter and will be considered first. The complaint of the appellant is very clearly set out in paragraph 5.02 of his brief as follows:-

“The Court of Appeal seriously criticised the way and manner the said issues were set out since it gave the impression that the Respondent was concurring to the attack levelled on the high points in the judgment by the appellant in that appeal. The implication of the Respondent’s adoption of the issues for Determination as formulated by the appellant in that appeal was even brought out more succinctly in the minority judgment of Hon. Justice Macaulay at page I58 of the Records. There, the learned Justice of Appeal (like in the lead judgment) felt that the Respondent having agreed to be bound by the issues raised by the appellant virtually agreed and accepted all the shortcomings complained of in the judgment as argued by the appellant. It is the humble submission of the Appellant herein, that the Respondent in that Court should not have been allowed to present argument running counter to the import of the issues formulated by him. Any argument in the Respondent’s Brief of Argument not being in consonance with the issues formulated should have been struck out by the Court of Appeal.”

After expatiating further on this complaint by citing and considering some authorities on non-compliance with the rules relating to the filing of briefs (Order 6 Rule 3), making submissions on the effect of such non-compliance, the wrong formulation of issues and the consequences of a faulty brief, the appellant further complained in paragraph 5.05 as follows:-