Mamman V. State (2022)
LAWGLOBAL HUB Lead Judgment Report
EMMANUEL AKOMAYE AGIM, J.S.C.
This appeal No. SC.687/2018 was commenced on 28-4-2018 when the appellant herein filed a notice of appeal against the judgment of the Court of Appeal delivered on 29-3-2018 in Appeal No. CA/K/297A/C/2015 setting aside the decision of the High Court of Jigawa State delivered on 30-12-2014 in charge No. JDU/38C/2013. The trial Court had convicted the appellant of conspiracy to inflict grievous injuries on one Aisha Ali and the offence of culpable homicide punishable with death and sentenced him to death by hanging. The Court of Appeal set aside the trial Court’s judgment, convicted the appellant of the lesser offence of causing the death of the deceased with the intention of causing her grievous hurt and sentenced him to an imprisonment term of 14 years.
Both sides filled, exchanged and adopted their respective briefs as follows – appellant’s brief and respondent’s brief.
The appellant’s brief raised the following issues for determination ”
- Whether the lower Court was right in its judgment that it was the appellant that caused the victim’s death notwithstanding glaring contradictions in the evidence adduced by the prosecution witnesses. (Ground 1 and 2 of the Notice of Appeal)
- Whether the lower Court was right in its judgment in convicting and sentencing the Appellant for a lesser offence of causing death of the deceased with the intention of causing her grievous hurt punishable under Section 225 of the Penal Code when the prosecution failed woefully to proof all ingredients of the said offence. (Ground 3 of the Notice of Appeal)
The respondent’s brief raised one issue for determination as follows – “Whether there are material contradictions in the evidence adduced by the prosecution at the trial to warrant setting aside the decision of the lower Court”.
All the issues raised for determination in this appeal and all the grounds of this appeal raise questions of fact or mixed law and facts. This has caused me to find out if leave of the Court of Appeal or of this Court was first obtained to appeal on grounds of facts or mixed law and facts before this appeal was commenced on 28-4-2018 and if such leave was legally necessary.
There is nothing in the record of this appeal that shows that the appellant obtained leave of this Court or of the Court of Appeal to appeal on facts or mixed law and facts before he commenced this appeal.
Since the trial Court’s sentence of death was not affirmed by the Court of Appeal and all the grounds of this appeal raise only questions of facts or mixed law and facts, the appellant should have first obtained leave of the Court of Appeal or of this Court to appeal on grounds of facts or mixed law and facts before commencing this appeal by virtue of Section 233(2) and (3) of the Constitution of the Federal Republic of Nigeria 1999 which provide thusly- An appeal shall lie from the decision of the Court of Appeal to the Supreme Court as of right in the following cases-
(a) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal.
(b) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution
(c) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be contravened in relation to any person
(d) decision in any criminal proceedings in which any person has been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by any other Court
(e) decisions on any question –
(i) whether any person has been validly elected to the office of President or Vice-President under this Constitution.
(ii) whether the term of office of President or Vice-President has ceased.
(iii) whether the office of President or Vice-President has become vacant.
(iv) whether any person has been validly elected to the office of Governor/or Deputy Governor under this Constitution.
(v) whether the term of office of Governor or Deputy Governor has ceased
(vi) whether the office of Governor or Deputy Governor has become vacant and
(f) such other cases as may be prescribed by an Act of the National Assembly.
(3) Subject to the provisions of Subsection (2) of this Section, an appeal shall lie from the decision of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court.
The decision of the Court of Appeal appealed against in this appeal is not listed in S.233(2) as one of the decisions of the Court of Appeal appealable as of right.
It is clear from the provisions of Section 233(2) and (3) of the 1999 Constitution that any decision of the Court of Appeal that is not listed in Subsection (2) as appealable as of right cannot be appealed against unless the Court of Appeal or this Court gives leave to appeal against it.
All the grounds of this appeal are of mixed law and facts. All the grounds are based on factual contentions by the appellant and not on inferences on undisputed facts. Ground 1 is based on the contention that the testimonies of PW1 and PW2 are self-contradictory and that exhibit C, the medical report did not contain any blood stain on the wrapper used in covering the corpse of the deceased. Ground 2 is based on the factual contention that the evidence of the prosecution did not prove the guilt of the appellant. Ground 3 is based on the factual contention that the evidence of the prosecution did not prove the ingredients of the lesser offence for which the appellant was convicted. The complaint in those grounds invite this Court to review the evidence adduced by the prosecution to find out if the concurrent findings, decisions that the appellant killed the deceased is supported by the evidence. The grounds of appeal are clearly ones of mixed law and facts.
Since the leave of the Court of Appeal or of this Court was not first obtained to bring this appeal on grounds of facts or mixed law and facts, the notice of this appeal and the appeal is unconstitutional and incompetent.
The incompetence of this appeal robs this Court of the jurisdiction to entertain and determine it.
Therefore, this appeal is hereby struck out.
As it is no useful purpose would be served determining the merit of this appeal.
MUSA DATTIJO MUHAMMAD, J.S.C.: I read in draft, the lead judgment of my learned brother EMMANUEL AKOMAYE AGIM, JSC just delivered. I am in complete agreement with the reasoning and conclusion articulated in the judgment that the appeal being incompetent be and stands struck out. I offer, by way of emphasis, a few words on the issue the appeal seeks to agitate.
By virtue of Section 233(3) of the 1999 Constitution (as amended) an appeal against any decision outside the purview of Section 233(a) to (b) of the very Constitution requires leave of either the Court of Appeal or the Supreme Court. Failure to seek and obtain leave in respect of such appeal amounts to not fulfilling a condition precedent on which basis this Court will exercise its jurisdiction. The defect in competence is extrinsic to adjudication and renders the appeal liable to be struck out. See AJIBADE V. PEDRO (1992) 5 NWLR (PT 241) 257 at 262, C.B.N. V. OKOJIE (2002) 8 NWLR (PT 768) 48, SC. UNITY BANK PLC V. BOUARI (2008) 7 NWLR (PT 1086) at 398 SC and OPUIYO V. OMONIWARI (2007) 16 NWLR (PT 1060) 415.
In the latter case, at pages 443-444 of the law report, Chukwuma-Eneh, JSC (of blessed memory) dwelt on the effect of an appellant’s failure to seek and obtain leave where same is required thus:-
“This requirement is a constitutional one so that dire consequences follow where the requirement of first seeking leave is breached. A further implication of Section 233(3) of the Constitution that where leave is not sought, that is, where particularly it should, then the grounds of appeal are incompetent leading to want of jurisdiction of the Court to entertain such grounds.” (Underlining supplied for emphasis)
The foregoing decisions of this Court remain extant.
It is for this reason and more so the fuller reasons outlined in the lead judgment of my learned brother EMMANUEL AKOMAYE AGIM, JSC that I also hereby strike out the incompetent appeal.
SC.687C/2018
