Sale Ado Vs. The State (2017)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, JSC

The Kaduna Division of the Court of Appeal, hereinafter referred to as the lower court, on dismissing the appellant’s appeal against his conviction and sentence for conspiracy, robbery and culpable homicide by the Kano State High Court, the trial court, affirmed the judgment of the latter delivered on 27th July 2010. Dissatisfied with the judgment of the lower court dated 14th March 2013, Sale Ado (Alias Dangajere), the convict, has appealed to this Court on ten grounds.

In the appellant’s brief settled by Nuraini Jimoh Esq and filed on the 3rd of May 2013, two issues have been distilled as railing for determination of the appeal thus:-

“(1) Whether the learned Justices of the Court of Appeal were right when they affirmed the procedure embarked upon by the prosecution at the trial.

(2) Whether the learned Justices of the Court of Appeal were right in affirming the trial court’s decisions that the prosecution had proved their case beyond reasonable doubt and affirmed the conviction and sentence of the appellant?”

These two issues have been adopted by the respondent in its brief.

The respondent who did not file any Notice of Preliminary objection, at paragraphs 3.00 to 3.11 of its brief, appears to be challenging the competence of some of the grounds in the notice of appeal and or issue(s) distilled from the grounds by the appellant.

The issue of jurisdiction is certainly a threshold one. It is either that a court has it and legitimately proceeds or in unlawfully proceeding, without the necessary jurisdiction, wastes not only the litigants but its own precious time. It is trite that proceedings of courts that lack jurisdiction, no matter how well same were conducted, are nullities. Jurisdiction remains the lifeline of all trials and that is why a challenge to the court’s jurisdiction, in order to save time and costs, are raised even viva voce and for the first time in this Court. See N.D.l.C V. Central Bank of Nigeria & anor (2002) 3 S.C. 1 and Saude V. Abdullahi (1989) 4 NWLR (116) 387.

Learned respondent’s counsel has however done the needful by conceding, at the end of arguments in respect of its objection that, in criminal appeals where sentence of death has been passed, as in the instant case, this Court does not readily jettison the appellant’s right of appeal as conferred by the Constitution. Instead, learned respondent’s counsel is right, this Court will readily facilitate such a constitutionally guaranteed right. Learned counsel’s reliance on the decision of this Court in Sofola V. State (2005) 11 NWLR (Pt 937) SC 460 at 488-489 and Daggaya V. State (2006) 7 NWLR (Pt 980) 637 at 655, in support of his submission in this regard is apposite. Appellant’s reply brief principally controverting respondent’s challenge to the competence of aspects of the appeal has, therefore, become otiose. Respondent counsel’s concession and the particularly overriding practice evolved by this Court to hear and determine the appeal even if respondent has not withdrawn his objection make further consideration of respondent’s seeming objection to this Court’s jurisdiction unnecessary. Now to the appeal.

On the 1st issue, learned appellant’s counsel contends that the leave the trial court granted the respondent to call and lead PW3, PW4, PW5 and PW6 in evidence after the appellant had testified and closed his case remains improper. The trial court’s order facilitating the wrong procedure stands in breach of Section 36(6) (9) of the 1999 Constitution and Section 237 of the Criminal Procedure Code under which, submits learned counsel further, it was made. The procedure, it is contended, offered an opportunity to the prosecution to strengthen its case against the appellant. Relying inter-alia on the cases West V. Police (1952) 20 NLR 52 at 54, Ogbodu V. The State (1987) 3 SC 497, C.O.P V. Prediegha (1975) NNLR 170 and Onuoha V. The State (1989) 2 NWLR (Pt 103) 23 learned appellants counsel urges that this Court interferes by setting aside the lower court’s affirmation of the trial court’s perverse judgment. Further relying on Kajubo V. The State (1988) 1 NWLR, learned appellant’s counsel insists that the fact that appellant’s counsel did not oppose the prosecution’s application for the leave to call further evidence does not legalize the otherwise fundamentally irregular procedure that led to the conviction of the appellant. On the whole, learned counsel urges that the issue be resolved in appellant’s favour.

On the 2nd issue, learned appellant’s counsel submits that from the record of appeal, appellant’s conviction for all the three heads of charge is based on circumstantial evidence. The law, it is further contended, requires that such evidence be direct, positive, compelling and irresistibly pointing to no other conclusion than the appellant’s guilt. Once the possibility of any person other than the appellant intervene as to who committed the offence, it is argued, the appellant cannot be rightfully convicted for the offence(s). The quality of circumstantial evidence the trial court relied upon to convict the appellant for the offences, learned counsel submits, which conviction the lower court affirmed, does not meet the criteria specified in Mbang V. The State (2012) 6 SCNJ 395, Ubani Igri V. The State (2012) 6 SCNJ (Pt II) 360, Ubani V. The State (2003) 18 NWLR (Pt 851) 22 and Okoro V. The State (2012) 1 SCNJ (Pt 1) 36. Such evidence cannot sustain the convictions.

On the whole, learned counsel urges that both issues be resolved against the respondent and that the appeal be allowed.

Responding to appellant’s arguments on the 1st issue, learned respondent counsel submits that the record of appeal belies learned appellant counsel’s contentions. It is evident from the record, he further submits, that the respondent was forced to close its case on the 7th July 2009 prematurely by the trial court. Faced with the untimely closure of its case, the respondent sought and obtained the trial court’s order pursuant to Section 36 (6) (9) of the 1999 Constitution and Section 237 of the Criminal Procedure Code to enable it completely put its case against the appellant before the trial court. The trial court’s ruling allowing the respondent to call the witnesses, it is submitted, has not been appealed against. Appellant’s reliance on the plethora of decisions of this Court, on facts which are dissimilar to the instant case, learned respondent counsel submits, does not avail him. The appellant who has not in any way been put to any disadvantage by the procedure which allowed the respondent to put its case completely across to the court, it is argued, is not entitled to have the lower court’s judgment set-aside.

On the 2nd issue, learned counsel for the respondent submits that a number of circumstances have been established by the respondent to establish the unbroken chain of evidence the trial court properly acted upon to convict the appellant. The inferences drawn from the circumstances built by the prosecution, it is submitted, point strongly to the appellant as being one of those who agreed with another to and indeed committed the offences for which they have been convicted. The strong, credible and unbroken chain of evidence which meets the requirements of the law does sustain appellant’s conviction. Failure of the prosecution to tender the weapon used by the appellant and his co-convict, submits learned respondent counsel, does not diminish the quality of the circumstantial evidence on which appellant’s conviction as affirmed by the lower court is founded. To the contrary, it is argued, the grounds to warrant the intervention of this Court have not been established by the appellant. Citing the cases of Adesina V. The State (20120 14 NWLR (Pt 1321) 429, Musa V. The State (2009) 15 NWLR (Pt 1165) 467 at 488, Archibong V. State (2006) 14 NWLR (Pt 1000) 349 at 376, Olayinka V. State (2007) 9 NWLR (Pt 1040) 561 at 575 and Jua V. State (2010) 4 NWLR (Pt 1184) 217 at 247, learned counsel submits that appellant’s second issue for the determination of the appeal does not avail him.