Criminal Litigation - Week 16

7/31/2019 Criminal Litigation - Week 16

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MY NOTE ON CRIMINAL LITIGATION WEEK 16

APPEALS

OUTCOMES

Basis for appeal..................................................................................... Page 1.

Rights of Appeal................................................................................... Page 1.

Appealable decisions............................................................................. Page 1 2.

Appeal from Magistrates Courts to State High Courts......................... Page 2 6.

Appeals from High Courts to the Court of Appeal............................... Page 6 11.

Appeals from the Court of Appeal to the Supreme Court..................... Page 11 14.

Sample draft.......................................................................................... Page 15 18.

BASIS OF APPEAL

Blacks Law Dictionary 6th Edition, defines an appeal as the resort to a superior court to

review the decision of a lower court.

An appeal is any proceeding taken by an aggrieved party to rectify an alleged erroneous

decision of a court by bringing the decision before a higher court.

RIGHTS OF APPEAL

An appeal may be as of right or only with the leave of the court sections 241 and 242

of the 1999 Constitution. Thus, a right of appeal exists only where it is provided for

under an enactment.

Whether an appeal is of right or only with the leave of the court, the right of appeal

must expressly be stated in a statute The State v. Adili (1989) 3 SC (Pt. 1) 19.Moreover, a party aggrieved by the decision of a trial court may appeal against that

decision to a superior court. The parties to a criminal proceeding are the accused person

and the prosecutor, and either or both parties may appeal if dissatisfied with the

decision of the trial court the accused person may appeal and the prosecutor may

cross-appeal Nafiu Rabiu v. The State (1980) 2 NCR 117.


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APPEALABLE DECISIONS

An appeal may be against a final judgment or an interlocutory decision. An appeal

against an interlocutory decision is called an interlocutory appeal.

An interlocutory appeal is an appeal on a point of law or a matter pending the final

determination of a case.

Any party who is aggrieved by the ruling or order of a court may appeal, in the interim,

pending the final determination of the case.

The procedure for filing an interlocutory appeal is that the appellant must commence

with a notice of appeal and thereafter proceed to file the grounds of the appeal. And

where necessary, he may apply for a stay of proceedings.

APPEAL FROM MAGISTRATES COURTS TO STATE HIGH COURTS

Appeals lies from a Magistrate Court to a High Court of the same State (same

jurisdiction). Undersection 272 of the 1999 Constitution, the jurisdiction of a State High

Court is stated thus

(1)Subject to the provisions of this Constitution..., the High Court of a Stateshall have jurisdiction to hear and determine... any criminal proceedings

involving or relating to any penalty, forfeiture, punishment or other liability in

respect of an offence committed by any person.

(2)The reference to criminal proceedings in this section includes a reference tothe proceedings which originate in the High Court of a State and those which

are brought before the High Court to be dealt with by the Court in its appellate

or supervisory jurisdiction.

The appellate jurisdiction of the States High Courts over subordinate courts is alsoprovided for under other enactments. For example, section 28 of the High Court Law,

Laws of Lagos State, 1973 provides thus

The High Court shall have appellate jurisdiction to hear and determine appeals

from decisions of the Magistrates Courts in criminal causes and matters as well as


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case stated by magistrates in accordance with section 125 of the constitution of

the Federation.

Section 279(1) of the Criminal Procedure Code (CPC) provides that

Appeals from a Magistrate Court to the High Court shall be in accordance with

section 53 of the Constitution of Northern Nigeria, 1963.

GROUNDS ON WHICH AN AGGRIEVED PARTY MAY APPEAL

PROSECUTOR

He may appeal as of right against the decision of a magistrate in the following cases:

1. Where an order of acquittal or discharge has been made by a magistrate,on the ground that the order is erroneous in law or that the proceedings or any

part thereof is in excess of jurisdiction of the magistrate section 57(a)

Magistrates Court Law (Lagos) 2004 and section 279(2) of the Criminal

Procedure Code; and

2. Where a magistrate has imposed a sentence below the minimum or abovethe maximum permitted by law. See section 57(b) Magistrate's Court law (Lagos)

2004. No right of appeal in other cases e.g. inadequacy of sentence or

punishment or against grant of bail C.O.P v. Noma (1973) NNLR. 65; C.O.P v.Aminu Sani (1975) All NLR. 224.

ACCUSED

An accused may appeal against the decision of a Magistrates Court on no other ground

but all or any of the following grounds

1. That the court below has no jurisdiction in the case.2. That the court below has exceeded its jurisdiction in the case.3. That the magistrate was personally interested in the case.4. That the magistrate has acted corruptly or maliciously in the case.5. That the decision has been obtained by fraud.6. That the case has already been heard or tried and decided by or forms thesubject of a hearing or trial pending before a competent court, provided that it is


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not competent for the Appeal Court to entertain as a ground of appeal the

special plea of autre fois acquit orautre fois convict unless such special plea was

pleaded in the court below.

7. That admissible evidence has been rejected, or inadmissible evidence hasbeen admitted, by the court below and that in the latter case there is not

sufficient admissible evidence to sustain the decision after rejecting suchinadmissible evidence.

8. That the decision is unreasonable, or cannot be supported having regardto the evidence.

9. That the decision is erroneous on point of law.10. That some other specific illegality, not earlier mentioned and substantiallyaffecting the merits of the case, has been committed in the course of the

proceedings in the case.

11. That the sentence passed on conviction is excessive.BEFORE THE JUDGMENT

The Attorney-General may at any stage before judgment direct a magistrate to refer a

point of law arising from the trial for opinion of the High court section 65

Magistrate's Court Law (Lagos) 2004.

Either party to the proceedings may request a magistrate to refer (or he may on hisown refer) a question involving substantial points of law on interpretation of the

Constitution to the High Court section 259 of the 1999 Constitution.

The Magistrate may in his discretion refer a question of law for the decision of a High

Court section 65 of the Magistrate's Court Law (Lagos) 2004;R. v. Eze (1950) 19 NL R.

110.

AFTER THE JUDGMENT

The Attorney-General may within six (6) months of a judgment direct the magistrate to

state a case thereon for the decision of the High Court section 66 Magistrate's Court

Law.

FAILURE TO FILE NOTICE OF APPEAL WITHIN STATUTORY PERIOD
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When an aggrieved party fails to file his notice of appeal within thirty (30) days of the

date of delivery of the judgment of the court, he may file an application for leave to

appeal out of time. The application must be filed at the High Court by way of motion on

notice supported by an affidavit stating reasons why the appeal was not filed within

time Order 2 (Part 1) Rule 14, High Court of Lagos Appeal Rules 2004. Reasons for

lateness must be stated otherwise, it shall not be entertained Moses v. Ogunlabi(1975) 4 S.C. 81.

APPLICATION FOR LEAVE TO FILE ADDITIONAL GROUNDS OF APPEAL

This is necessary because at the time of filing the notice and grounds of appeal, the

appellant may not have obtained the copies of the record of proceedings from the

Magistrates Court. In order to comply with the statutory period for the filing of the

appeal, initial grounds of appeal are drafted by counsel based on counsels longhand

note of what happened at the trial court, or simply on the omnibus ground that

judgment is against the evidence adduced at the trial.

The initial grounds of appeal must show that the appellant intends to file additional

grounds of appeal with a paragraph stating such. The applicant must bring an

application for leave of the High Court to do so and the application must be by motion

on notice supported by an affidavit stating out the facts on which the applicant relies,

and exhibiting the perfected grounds of appeal. Such applications are usually grantedby the court, and the court will order that the perfected grounds of appeal be

substituted for the initial grounds of appeal Esoh v. Police 3 FSC 37.

APPLICATION FOR LEAVE TO AMEND DEFECTIVE GROUNDS OF APPEAL

Where the appellants notice of appeal contains defective grounds of appeal, he may

amend it by filing an amended notice of appeal, provided the amended notice of

appeal is filed within 30 days of the date of the decision appealed against which shall

be substituted for the original notice of appeal. Where 30 days has elapsed, the

appellant may, with the leave of the High Court, file an amended ground of appeal. The

application for leave may be by way of notice.

PAYMENT OF FEES
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Where appellant is not a public officer acting in his official capacity, he must pay the

fees for filing the appeal and such amount as is deemed sufficient by the court to

produce sufficient number of certified typewritten copies of the record of proceedings

to supply each respondent and the court. The court may however remit the fees in

whole or in part on the ground of the appellant's poverty or for other sufficient cause

Order 2 Part I Rules 3 and 4. Undersection 276 of the CPC, the accused is entitled torequest a copy of the judgment free of charge but shall pay for the provision of the

record of the proceedings and use of the court.

SECURITY TO PROSECUTE APPEAL

The appellant shall enter into a bond with or without surety as the magistrate may

direct to prosecute the appeal with diligence and to abide by the result thereof

including the payment of costs if any Order 2 (Part 1) Rule 5 High Court Appeal Rules;

section 283 of CPC.

BAIL PENDING APPEAL FROM DECISION OF MAGISTRATES COURT TO STATE HIGH

COURT

Where an appellant has been sentenced to imprisonment or Bostal training, the

magistrate shall release him from custody on his either entering into a recognisance,

with or without sureties, and in such reasonable sum as the magistrate thinks fir,

conditioned for the appellants appearance at the hearing of the appeal, or giving, with

the magistrates consent, other security for his appearance

(i) If the appellant has previously served a sentence of not less than sixmonths imprisonment; or

(ii) If there is evidence upon which the magistrate, having regard among otherthings to the offence of which the appellant has been convicted and to any

previous convictions which may have been recorded against the appellant, may

reasonably presume that the appellant, if released from custody is likely to

(a) Commit some further offence; or(b) Evade or attempt to evade justice by absconding or otherwisedisappearing.


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The magistrate shall have a discretion whether to release the appellant from custody or

not.

ABATEMENT OF APPEAL

A Criminal Appeal, other than an appeal against a sentence of fine shall abate on the

death of the appellant section 64 Magistrate Court Law; section 291 CPC;R. v. Rowe (1955) 39 Cr. App. Rep. 57.

ABANDONMENT OF APPEAL

An appellant may abandon his appeal by giving a written notice of abandonment signed

by himself or his counsel to the registrar of the court below not less than two (2) daysbefore the date fixed for hearing. The latter shall immediately notify the High Court

Registrar of the abandonment of the appeal and the magistrate may award costs to the

respondent Order 2 (Part I) Rule 13;Awojobi v. Ogbemudia (1983) 8 S.C 92.

HEARING NOTICE AND HEARING OF THE APPEAL

The notice of the time and place of the hearing of the appeal must be served by the

registrar of the High Court on all of the parties to the appeal. The onus is on the High

Court to ascertain whether the parties to the appeal have been served by the registrar

of the court before proceeding to hear the appeal.

If on the day fixed for the hearing of the appeal, or on any adjourned date, an appellant

who has been released on bail and who has been served with the notice of hearing is

not present, the High Court may order the arrest of the appellant by issuing a warrant

of arrest. However, if the appellant appears on the day of the hearing, the High Court

may, proceed to the hearing and determination of the appeal.

ADDITIONAL EVIDENCE

Where the High Court considers it necessary or expedient in the interest of justice, it

may allow additional evidence to be adduced on appeal or may refer the case back to

the magistrate to take such evidence and adjudicate afresh in the light of the evidence

or report its findings on such evidence to the court. The High Court will not receive
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additional evidence where such evidence was available at the trial or could have been

adduced at the trial stage Abiola & Ors. v. The Police (1961) All NLR 815;Ariran v.

Adepoju (1961) 1 All NLR 72; Oladipupo v. State (1993) 6 SC (pt 2) 233.

An appeal court should only admit fresh evidence in exceptional circumstances where

to do so would not mean a rehearing R. v Oton 12 WACA. 212; R. v. Rowland (1947) KB

460 32.

POWERS OF THE STATE HIGH COURT IN ITS APPELLATE CRIMINAL JURISDICTION

The State High Court is vested with wide powers in the hearing and determination of

criminal appeals from the Magistrates Courts. The powers of the State High Court are

as follows

1. On appeal against conviction, or conviction and sentence, the State HighCourt may make any of the following orders

a)Affirm the conviction, or conviction and sentence.b)Quash the conviction and sentence and acquit or discharge the appellant,or order him to be retried by a court of competent jurisdiction or commit him

for trial.

c)Alter the finding, maintaining the sentence.d)Affirm the finding, reducing or increasing the sentence.e)Alter the nature of the sentence.f)Annul the conviction and substitute a special finding of not guilty by reasonof insanity and make a committal orderNwobu v. Police 1963 NNLR 9.

2. On appeal against sentence only a)Affirm the sentence; orb)Substitute any other sentence, whether more or less severe and whetherof the same nature or not.

3. On an appeal against an order of discharge or acquittal a) Affirm such an order of discharge or acquittal.b) If the High Court is of the Opinion that the order of discharge or acquittalshould not have been made, it must remit the case together with the

judgment of the High Court on it to the Magistrates Court for determination ,

whether or not by way of rehearing, with such directions as the High Court

may think necessary.
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4. On an appeal on the ground of failure to impose a minimum sentence ormake an order prescribed by a written law

a) Affirm the sentence or order (if any) imposed or made by the MagistratesCourt.

b)Substitute or impose or make a sentence or order prescribed by the writtenlaw.

5. On an appeal from any other order a) Affirm the order made by the Magistrates Court.b)Alter the order made by the Magistrates Court.c) Reverse the order made by the Magistrates Court.

On any appeal from a Magistrates Court to the High Court, the High Court may make

any amendment or any consequential or incidental order that may appear just and

proper.

On hearing an appeal in a criminal case, the High Court may, notwithstanding that it is

of the opinion that the point raised in the appeal could be decided in favour of the

appellant, dismiss the appeal if it considers that no substantial miscarriage of justice

occurred.

APPEALS FROM STATES HIGH COURTS AND THE FEDERAL HIGH COURT TO THE COURT

OF APPEAL

The Court of Appeal has jurisdiction to hear and determine appeals inter alia from

States High Courts and the Federal High Court section 240 of the 1999 Constitution.

An appeal from the decision of a High Court to the Court of Appeal may lie as of right

with leave section 241 of the Constitution. The application for leave must be brought

first before the High Court and if refused, before the Court of Appeal.

EXERCISE OF RIGHT OF APPEAL FROM HIGH COURT

Any right of appeal to the Court of Appeal from the decision of the High Court shall in

the case of Criminal proceedings be exercisable at the instance of an accused person or

at the instance of the Attorney-General of the Federation or of a State Nafiu Rabiu v.


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The State (1980) 2 N.C.R. 117; Attorney-General of Kaduna State v. Hassan (1985) 2 NWLR

483.

PROCEDURE FOR APPEAL

The aggrieved party shall file a notice of appeal or notice of application for leave to

appeal in the registry of the High Court. Such notice shall be signed by the appellanthimself Order 4 Rule 4(l) Court of Appeal Rules 1981.

The period for giving notice of appeal or notice of application for leave to appeal is 90

days from the date of decision appealed against section 1 Court of Appeal

Amendment Act 1979. It should be noted that application can be made for extension of

time within which to appeal to the Court of Appeal in all cases Kema v. The State

(1986)1 NWLR 396; section 25 Court of Appeal Act 1976 as amended by section 6 Court

of Appeal (Amendment Act No 7, 1982.

Where the application for leave to appeal is made to the High Court first, a further

period of 14 days shall be allowed from the date of the determination of the application

by the court below to make another application to the Court of Appeal.

The application for leave must be made by Motion on Notice which must be supported

by an affidavit exhibiting the grounds of appeal. An application for extension of time

must be made to the court where such extension of time is sought, and not to the

lower court.

BAIL PENDING APPEAL FROM DECISION OF A HIGH COURT TO THE COURT OF APPEAL

The Court of Appeal may on the application of an appellant, admit the appellant to bail,

if it thinks fit, pending the determination of his appeal. This is an absolute discretion of

the court.

The principles governing the admission of an appellant to bail pending the

determination of his appeal were stated in R. v. Tunwashe 2 WACA 236 as follows

1. That bail will not be granted pending an appeal, save in exceptionalcircumstances or where the hearing of the appeal is likely to be unduly delayed.

2. That in dealing with the latter class of the case the court will have regardnot only to the length of time which must elapse before the appeal can be heard
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but also to the length of the sentence to be appealed from, and further that

these two matters will be considered in relation to one another.

Thus, in the absence of special or circumstantial circumstances, bail will not be allowed

Mandara v. The Attorney-General of the Federation unreported FCA/L/12/82; Fawehinmi

v. The State (1990) 1 NWLR (Pt. 127) 486.

NOTICE OF APPEAL AGAINST A SENTENCE OF DEATH

Where a High Court has imposed a death sentence or the Court of Appeal has affirmed

a death sentence, a notice of appeal filed by the convicted person operates as a stay of

execution of the sentence of the court. The sentence of the court should not be carried

out by the Governor of the State until the final determination of the appeal Bello &

Ors. v. Attorney-General of Oyo State (1986) 12 SC 1.

ABANDONMENT OF APPEAL

An appellant at any time after he has duly served notice of appeal or of application for

leave to appeal or of application for extension of time within which such notice is

given, may abandon his appeal by giving notice of abandonment to the registrar.

Upon notice of abandonment been received, the appeal is deemed to have been

dismissed by the court.

RECORD OF APPEAL

The registrar of the High Court compiles the record of appeal, comprising the record of

proceedings and all other documents relevant to the appeal. It is transmitted to the

registrar of the Court of Appeal. The parties to the appeal are also served with the

record of appeal by the registrar of the High Court.

BRIEFS

The system of brief filing was introduced to the Court of Appeal in 1984 by the Court of

Appeal (Amendment) Rules 1984. By it, the hearing of appeals in the Supreme Court

and the Court of Appeal is preceded by the filing of briefs of argument by the appellant

and the respondent in the registry of the appellate court.

The need to file a brief can only be dispensed with by order of court.


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FILLING OF BRIEFS OF ARGUMENT

There are three types of appellate brief namely

1. Appellant brief;2. Respondent brief; and3. Reply brief.

APPELLANT'S BRIEF

This is available underOrder 17 of the Court of Appeal Rules. The appellant shall within

forty-five (45) days of the receipt of the record of appeal from the court below file in

the Court below a written brief, being a succinct statement of his argument on appeal.

The brief shall contain an address or addresses for service and shall contain what are in

the appellant's views the issues arising in the appeal.

RESPONDENT'S BRIEF

The respondent shall within thirty (30) daysof service of the brief of the appellant on

him, file the respondent's brief which shall be duly endorsed with address or addresses

for service Order 17 Court of Appeal Rules 2007.

REPLY BRIEF

The appellant may also if necessary, within fourteen (14) days of the service on him of

the respondent's brief, but not later than three (3) clear days before the date set down

for the hearing of the appeal, file and serve or cause to be served on the respondent a

reply brief which shall deal with all the new points arising from the appellants brief

order 6 Rule 5. A reply brief is filed only when an issue of law raised in the respondent's

brief calls for a reply Nwali v. State (1991) 3 NWL.R (pt 182) 663.

FORM AND CONTENTS OF APPELLATE BRIEF

The essential parts of an appellate brief are

1. The court in which the appeal is to be argued.2. Appeal number.3. Parties to the appeal.
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4. Title of the brief (e.g. appellants brief, respondents brief or reply briefs).5. Table of contents.6. Introduction of preliminary matters.7. Issues for determination.8. Statement of facts.9.

The argument.

10. Conclusion or summary.11. List of legal authorities.12. Signature.13. Address for service.

ORAL ARGUMENT

Oral argument will be allowed at the hearing of the appeal to emphasize and clarify the

written argument contained in the briefs already filed in court. Unless otherwise

directed, one hour on each sidewill be allowed for argument Order 6 Rule 9(1) and

(3).

EFFECT WHERE NO NOTICE OF APPEAL WAS FILED

Where a notice or appeal was not filed, the appeal will be struck out for being

incompetent Amusa v. The State FCA./I/49/80 of 6/7/81.

Where however, a notice of appeal was given on a wrongly headed form, the Court of

appeal will waive the rules Etuk Udo v. The State (1981) 6 S.C 157.

CONSTITUTION OF THE COURT OF APPEAL

The Court of Appeal must be constituted by not less than three (3) Justices of the court

for the hearing and determination of any appeal section 247 of the 1999 Constitution.

Each justice of the Court of Appeal shall deliver his judgment in writing or may state in

writing that he adopts the opinion of any other justice who delivers a written judgment

or opinion but shall not be necessary for all the justices who heard a case to be present

when Judgment is to be delivered, but the opinion of such justices may be read by any

other justice.

APPEALS FROM THE COURT OF APPEAL TO THE SUPREME COURT OF NIGERIA
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The Supreme Court of Nigeria is a court created under the Constitution. The court has

jurisdiction to the exclusion of any other court of law in Nigeria to hear and determine

appeals from the Court of Appeal.

An appeal from the decision of the Court of Appeal to the Supreme Court may lie as of

right or with leave.

Undersection 233(1) of the 1999 Constitution, an appeal shall lie from decisions 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, decision inCriminal proceedings before the Court of Appeal.

b) Decisions in Criminal proceedings on questions as to the interpretation orapplication of the Constitution.

c) Decisions in Criminal proceedings on question as to whether any of theprovisions of Chapter IV of the 1999 Constitution is being or is likely to be

contravened in relation to any person.

d) Decisions in any Criminal proceedings in which any person has beensentenced to death by the Court of Appeal or in which the Court of Appeal has

affirmed the sentence of death imposed by any other court.

e) Such other cases as may be prescribed by any Act of the NationalAssembly.

CONSTITUTION OF THE SUPREME COURT

The Supreme Court shall be duly constituted for hearing and determination of an

appeal if it consists of not less than five justices of the Court section 234 of the 1999

Constitution; section 10 of the Supreme Court Act, Cap. 424, LFN, 1990.

However, the court shall be constituted as a full court, where it is sitting to consider an

appeal brought under section 233(2)(b) or (c) of the Constitution section 234 of the1999 Constitution.Seven Justices are required to constitute a full court.

RIGHT OF APPEAL

Any right of appeal from the decision of the Court of Appeal to the Supreme Court is

exercisable in the case of criminal proceedings at the instance of an accused person or
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at the instance of the Attorney-General of the Federation or of a State or such other

authorities or persons as may be prescribed by any enactment.

PROCEDURE FOR APPEAL

Procedure for filling appeal or application for leave to appeal is substantially the same

as for the Court of Appeal. Also on receipt of the record of appeal from the Court ofAppeal, the Appellant shall file in the Supreme Court within ten (10) weeks of such

receipt a brief being a succinct statement of his argument in the appeal. Such brief

must be served on the respondent. The brief which may be settled by counsel shall

contain what are in the appellant's view, and the issues arising in the appeal Order 9

Rule 3 of the Court of Appeal Rules.

The respondent shall file in court and serve on the appellant his own brief within eight

(8) weeks after service on him of the brief of the appellant.

The appellant may also file in court and serve the respondent a reply brief within four

(4) weeks after service of the respondent's brief on him.

FILING OF NOTICE OF APPEAL

The period within which to appeal against the judgment of the Court of Appeal to the

Supreme Court is thirty (30) days section 27(2)(b) Supreme Court Act Cap 424, Laws

of Federation of Nigeria, 1990. However, by section 31(4) of the Supreme Court Act,

where the Notice of Appeal has not been filled within the prescribed period, application

can be made to the Supreme Court for extension of time within which to file the Notice

of Appeal. Upon genuine reasons being shown for the delay, the Supreme Court may

grant such extension. Until 1989, it was not possible to apply to the court for extension

of time, in a case of conviction involving sentence of death. But by the Supreme Court

of Nigeria (Amendment) Decree No. 16 1989, section 31(4) of the Supreme Court Act,

1960 was amended. The amendment allows for extension of time in all cases including acase of conviction involving sentence of death section 27(4) Supreme Court Act.

WITHDRAWAL OF APPEAL

An appellant may at any time before the appeal is called on for hearing, serve on the

respondent and file with the registrar of the Supreme Court, a notice to the effect that

he does not intend further to prosecute the appeal.
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Upon receipt of a notice of withdrawal, the registrar must give notice of the withdrawal

of the appeal to the respondent, the prison authority and the registrar of the court.

BAIL PENDING APPEAL FROM DECISION OF COURT OF APPEAL TO THE SUPREME

COURT

The Supreme Court may on the application of the appellant or where an appellant ispresent before the court, if it thinks fit to do so without any application, admit the

appellant to bail pending the determination of his appeal.

The principles governing the grant of bail pending the determination of an appeal in the

Supreme Court are the same as those in the Court of Appeal.

In the event of the Supreme Court not making any special order or giving any special

directions, the recognizance of the appellant and of his surety or sureties may be taken

before the registrar. An appellant who has been admitted to bail must be present

personally at each and every hearing of his appeal and at the final determination of the

appeal. The Supreme Court may, in the event of such appellant not being present at the

hearing of his appeal, if it thinks fit so to do, issue a warrant for the apprehension of the

appellant.

The Supreme Court may from time to time enlarge the recognizance of the appellant or

of his sureties or substitute any other surety for a surety previously bound as it thinks

fit. At any time after an appellant has been released on bail, the court may, if satisfiedthat it is in the interest of justice so to do, revoke the order admitting him to bail and

issue a warrant for the apprehension of the appellant.

RIGHT OF AN APPELLANT TO BE PRESENT AT THE HEARING

An accused is not usually under a legal obligation to be present at the hearing of his

appeal at the Court of Appeal. Where judgment is given and the accused is not present,

time of filing notice of appeal does not begin to run until he is notified in the prisoncustody. If after notification, he hands over his notice of appeal to the prison

authorities, it is immaterial that the prison authorities delayed in filing the notice at the

court registry. Bysection 30(1) Supreme Court Act, if he desires it, he shall be entitled

to be present. Note however the exceptions contained in section 30(1) Supreme Court

Act. In any event, the accused shall bear all expenses of and incidental to his transfer to

and from the place where the Court sits section 30 (6) of the Supreme Court Act.
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OPINIONS OF ABSENT JUSTICES OF THE COURT

Any Justice of the Supreme Court (who heard any cause or matter) can after a

decision has been arrived at by all the justices, pronounce the opinion of another

justice, who for one reason or another, is unable to reduce his opinion into writing or

be present when the judgment in the case is being delivered by each of the other

justices" Per Fatayi Williams C.J.N. inAttorney-General of Imo State v. The Attorney-

General of Rivers State (1983) 8 S.C. 10.

BRIEFS

Within ten (10) weeks of the receipt of the record of appeal from the registrar of the

Court of Appeal, the appellant must file in the registry of the Supreme Court and serve

on the respondent a brief which may be settled by counsel, being a succinct statement

of his argument in the appeal.

The respondent must file in the registry of the Supreme Court and serve on the

appellant his own brief within eight (8) weeks of the service on him of the appellants

brief. The appellant may also file in the court and serve on the respondent, a reply brief

within four (4) weeks of the service of the respondents brief on him, except, where

good and sufficient cause has been shown, a reply brief must be filed and served at

least three (3) days before the date set down for the hearing of the appeal.

Argument in respect of a cross-appeal or in respect of a respondents notice may beincluded by any party in his brief for the original appeal without special application,

such an inclusive brief clearly stating that it is filed in respect of both the original appeal

and the cross-appeal or respondents notice.

Ten (10) copies of all briefs shall be filed Order 6 Rule 6(a) Supreme Court Rules.

EFFECT OF FAILURE TO FILE A BRIEF

If an appellant fails to file his brief within the stipulated time period or within the timeas extended by the Supreme Court, the respondent may apply to the Supreme Court

for the appeal to be dismissed for want of prosecution. If the respondent fails to file his

brief, he will not be heard in oral argument except by leave of the court.

EXTENSION OF TIME WITHIN WHICH TO FILE NOTICE OF APPEAL
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Generally when time within which to file notice of appeal has expired, an application

may be brought for leave of the appellate court to file the appeal out of time.

(SAMPLE DRAFT)

IN THE COURT OF APPEAL

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

CASE No: ABJ/001/M8

APPEAL No:

BETWEEN

RAMPAM ALECHENU

MUSA UGOCHUKWU - - - - - APPELLANTS

AND

FEDERAL REPUBLIC OF NIGERIA - - - - RESPONDENT

APPELLANTS BRIEF OF ARGUMENT

INTRODUCTION


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This is an appeal against the decision of the High Court of the Federal Capital Territory

delivered on the 16th June 2008 upon a charge of murder preferred against Rampam

Alechenu and Musa Ugochukwu.

STATEMENTS OF FACTS

Rampam Alechenu and Musa Ugochukwu were arraigned at the High Court for Murderof Igho Adetokunboh. The accused persons at all material times occupied the same flat

with the alleged deceased. Igho Adetokunboh was said to have disappeared without

any trace. The only evidence against the accused persons was the unexplained

disappearance of Igho Adetokunboh.

A submission of No case to answer made by the accused persons was overruled by the

learned trial Judge. The first accused was discharged and acquitted but at the same

time convicted for conspiracy, while the second accused person was sentenced todeath by firing squad and twelve strokes of cane without conviction.

The Appellants have now appealed against the judgment of the learned trial Judge.

ISSUES FOR DETERMINATION

1. Whether or not the trial Judge was right for convicting the 2nd Appellant foran offence not known to Law and in the alternative whether the 2 nd Appellant

could be sentenced without first being convicted.2. Whether the 2nd Appellant could be sentenced to death by firing squad inthe circumstance of the case.

3. Whether or not a valid judgment of the High Court can be delivered orallyand whether there was a miscarriage of justice occasioned by the delivery of

judgment out of time.

4. Whether or not the prosecution has proved his case beyond reasonabledoubt.

LEGAL ARGUMENTS

ISSUE I:

It is a settled principle of Law that nothing is an offence unless it is prescribed by a

written Law. Therefore, the person shall not be convicted for an offence unless the


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offence is defined in a written Law which also prescribes the punishment for the

offence Section 36(12)1999 Constitution.

In the instance, the accused persons/appellants were charged for an offence which is

not known to the Penal Code. It is respectfully submitted that the Penal Code Act is the

substantive criminal Law in the Federal Capital Territory and it contains no provision for

the offence of murder, thus in the case of Aoko v. Fagbemi & Anor (1961) 1 ANLR 400,

the accused person was charged, tried and convicted for adultery. On appeal, his

conviction was quashed because the offence of adultery is not defined and penalized

by the Criminal Code.

We therefore, pray this Honourable Court to quash the conviction of the 2nd Appellant

for the offence of murder.

In the alternative, a sentence of a Court is premature in the absence of a conviction. Asentence is the pronouncement of punishment upon which the accused person after

his conviction in a criminal proceeding. In Adamu & Ors v. State (1986) 3 NWLR (Pt 32)

865, it was held that failure to enter a conviction before sentence may invalidate the

judgment of the Court.

It is therefore submitted that the sentence of the Court is baseless without first

convicting the accused because you cannot put something on nothing and expect it to

stand.ISSUE II:

Death penalty under the Penal Code and the Criminal Procedure Code is to be executed

by hanging. Section 273 of the CPC provides that death sentence shall be by hanging.

The trial Court sentenced the 2nd Appellant to death by firing squad. It is humbly

submitted that this is clearly contrary to the laid down principles of Law. A person can

only be sentenced to death by firing squad upon conviction for armed robbery.

It is against this background that we pray this Honourable Court to set aside the

sentence of the trial Court on the 2nd Appellant.

ISSUE III:

It is a fundamental constitutional provision that the judgment of the Court must be in

writing Section 294(1) 1999 Constitution; and Section 268(1) CPC. Any judgment


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delivered before it is reduced to writing, otherwise, it is an oral judgment and invalid in

Law. In State v. Lopez (1968) 1 ALL NLR 356, the Supreme Court quashed an oral

judgment of the High Court.

In the instant case, the trial Judge stated that there was no legal authority requiring his

Lordship to write down a judgment. It is humbly submitted that the learned Judge

acted in blatant disregard to the constitutional provisions and the procedural Law by

delivering oral judgment. We urge this Honourable Court to declare the judgment of

the lower Court invalid.

Furthermore, a High Court is required to deliver its judgment in writing not later than

90 days after the conclusion of evidence and final addresses. This is provided for under

section 294(1) of the 1999 Constitution. However, failure to in comply with the above

invalidates the judgment only if the appellant suffered miscarriage by reason thereof.

It is the contention of the Appellants that they have suffered miscarriage of justice by

reason of inordinate delay in the delivery of the judgment. In the instant case, final

addresses were concluded on 12th December, 2007 and judgment was delivered on the

16th of June, 2008, that is, about 170 days after. It is strongly submitted that the

Appellants have remained and languished in prison during this period.

Also by reason of the delay in the delivery of judgment, the learned trial Judge has lost

track of the facts of the case. In fact his Lordship had to reconfirm certain facts fromthe Counsel while delivering judgment. It is therefore our humble submission that the

Appellant have suffered injustice by reason of the delay in the delivery of judgment. We

pray this Honourable Court to set aside, invalidate and nullify the judgment of the lower

Court.

ISSUE IV:

It is an incontestable principle of Criminal Law that the burden of proof is always on the

prosecution and standard of proof is beyond reasonable doubt as depicted in Section36(5) of the 1999 Constitution, and Section 138 of the Evidence Act . For the offence

culpable homicide punishable with death/murder, the prosecution must prove not only

the death of the deceased but must also prove the cause of death, the act of the

accused as the cause of death as well as the necessary mental element.


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In the instant case, there was no evidence of the death of Igho. All that was established

was the unexplained absence of Igho. It is our humble submission that the

disappearance of Igho for a period of about six months is not enough to ground the

presumption of death. Section 144 of the Evidence Act is to the effect that a person not

heard of for a period of seven years by those who would naturally have heard of him if

he was alive, is presumed to be dead unless otherwise proved.

The only logical conclusion from the foregoing provision is that the trial Court was in

error in holding that six months is reasonable time to presume the death of Igho.

Also, there was nothing in the evidence before the trial Court linking the appellants

with the death or cause of death of Igho if at all he is dead. It is humbly submitted that

the learned trial Judges reliance on the principle of res ipsa loquitur is not only

inappropriate in a criminal trial but also inconsistent with the Appellants constitutional

safeguard of presumption of innocence underS. 36(5) of the Constitution.

Moreso, a person charged with a criminal offence may choose to remain silent during

his trial Section 36(11) of the Constitution; Section 160(a) of the Evidence Act; Section

112 of the CPC. Although, the Court may draw inferences from the silence of the

accused as it thinks just in the circumstances of the case Sugh v. State (1988) 2 NWLR

(Pt 77) 475. It is the contention of the Appellants that the inference drawn by the

learned trial Judge from the silence of the 2nd Appellant is not just and does not in

anyway support the circumstances of the case.

On the whole, any doubt in the case of the prosecution is resolved in favour of the

accused person(s). It is our humble submission that the prosecution has failed to prove

the charge beyond reasonable doubt. We therefore urge this Honourable Court to set

aside the trial Judges decision and discharge and acquit the 1st and 2nd Appellant

accordingly.

SUMMARY AND CONCLUSION

The Appellants case before this honourable Court as established from the issues and

arguments canvassed above, is that the decision of the trial Court is invalid and against

the established principle of Law. Wherefore, the appellants pray this Honourable Court

to set aside the judgment of the trial Court and discharge and acquit the appellants.


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LIST OF AUTHORITIES

1. The Constitution of the Federal Republic of Nigeria 19992. Evidence Act Cap E14 LFN 20043. Criminal Procedure Code4. Penal Code5. Sugh v. State (1988) 2 NWLR (Pt 77) 4756. Adamu & Ors v. State (1986) 3 NWLR (Pt 32) 8657. Aoko v. Fagbemi & Anor (1961)1 ANLR Pg 400

DATED THIS 23rd DAY OF FEBRUARY, 2010.

___________________

Soulbeez Fortune Esq.Counsel to the Appellant

No. 5, Nedu Drive

Lagos.

FOR SERVICE ON RESPONDENT:

Kayuba Ada

No. 5 Kubwa Close,

Lagos.

Documents

Criminal Litigation - Week 16