Yawale Sharfal Vs The State (1992)

LawGlobal-Hub Lead Judgment Report

O. OGWUEGBU, J.S.C.

The appellant and five others were charged before the High Court of Borno State in the Potiskum Judicial Division with the offence of culpable homicide punishable under Section 221(b) of the Penal Code Cap.89. Laws of Northern Nigeria, 1963.

The appellant was the third accused in the court of trial. He and the 1st accused Inusa Na Yalwa were convicted of the offence and sentenced to death by hanging.

Both of them appealed against their conviction and sentence. The Court of Appeal (Jos Division) dismissed their appeals and confirmed the decision of Kuyatsemi, J.

Dissatisfied with the decision of the Court of Appeal, the appellant, – Yawale Sharfal appealed to this court. No notice of appeal was filed on behalf of Inusa Na Yalwa but at page one line 50 of the appellant’s brief it is recorded that the 1st accused – Inusa Na Yalwa had since died in prison.

The notice of appeal dated 22nd July, 1991, was filed on 23rd July, 1991 with the leave of this court by G. Brown-Peterside Esq., (SAN). It contains two grounds of appeal which read thus:

(1) The learned Justices of the Court of Appeal misdirected themselves generally on the principles of law relating to the onus of proof in criminal cases, and this occasioned a miscarriage of justice:

(2) The whole proceedings amount to a nullity as the Court of Appeal had no jurisdiction to entertain the same, since on the face of the record there was no proper plea taken as required by law’”

Briefs of argument were filed by the appellant and the respondent on 27th August, and 4th November, 1991 respectively. The appellant also filed a reply brief on 26th February, 1992.

At page two paragraph 1.08 of the appellant’s brief of argument, the learned Senior Counsel for the appellant stated that he would rely only on ground two during his argument before this court. Only ground two was argued in the appellant’s brief of argument. Since no argument was advanced in respect of ground one, it is deemed abandoned and I hereby strike it out.

When the appeal came up for hearing on 25th June, 1992, both the appellant’s and the respondent’s counsel were absent. A letter dated 20th June, 1992 was written to the Chief Registrar of this court by the appellant’s senior counsel stating that his instructions were not perfected and as a result, he would be unable to attend the court. He requested the court to treat the appeal as having been argued on the basis of brief filed by both parties. Acting under Order 6, rule 8(b) of the Supreme Court Rules, the appeal was treated as having been argued and I am considering it as such.

The appellant postulated two issues for determination:

“(1) Can it be said, having regard to the manner in which the plea of the appellant was taken by the learned trial Judge, vis-a-vis the law on the same, that the appellant’s trial was valid either before the court of first instance or the Court of Appeal which entertained and determined the said Appeal

(2) If the answer to the Issue No.1 is in the negative, then is the appellant not entitled to have his conviction and sentence set aside in the interest of justice having regard to the circumstances of this case”