By Legalpedia
COMMISSIONER OF POLICE v. DOMINIC IYAJI OGAR
suit no: CA/ABJ/CR/559/2020
Legalpedia Electronic Citation: (2021) Legalpedia (CA) 91071
AREAS OF LAW:
Action, Appeal, Court, Criminal Law And Procedure, Juridiction, Law Of Evidence, Practice And Procedure
SUMMARY OF FACTS: The Respondent was arraigned for the offence of culpable homicide contrary to Section 221 of the Penal Code before the High Court of the Federal Capital Territory in the Gwagwalada Judicial Division; to which he pleaded not guilty. The Respondent was tried, acquitted and discharged for the said offence by the trial Court. Dissatisfied, the Appellant brought an application before the Court of Appeal, Abuja Judicial Division for extension of time within which the Appellant shall appeal against the decision of the trial Court, which was granted. The Appellant filed its Notice of Appeal containing six grounds of appeal and some reliefs, which include a prayer for an order directing the Respondent to enter his defence. The Respondent filed a notice of preliminary objection contending that in a criminal case, a prosecutor has seven days within which to appeal or seek leave to appeal in a matter involving the sentence of death or verdict of guilty of manslaughter and the time cannot be extended by virtue of Section 4(3) of the Judicial, etc Officers and Appeal by Prosecutors Act No. 10 of 1963.
HELD:
Preliminary Objection Upheld, Appeal Struck Out
ISSUES FOR DETERMINATION
- Whether the Appellant herein established a prima facie case against the Respondent herein during trial to warrant the Respondent to enter his defence.
- Whether from the totality of evidence before the trial court and in the circumstances of this case the Prosecution led credible evidence in proof of it’s case (Distilled from Grounds Three, Four and Six).”
RATIONES
BURDEN OF PROOF IN A CRIMINAL TRIAL – ON WHOM LIES THE BURDEN OF PROOF IN A CRIMINAL TRIAL
“The law, ancient and modern is that in a criminal trial, the burden of proof lies throughout upon the prosecution to establish the guilt of the accused person beyond reasonable doubt. The burden never shifts. Even when the accused person in his statement to the police admitted committing the offence, the prosecution is not relieved of the burden so that a wrong person will not be convicted for an offence he never committed. There must be evidence which identifies the accused with the offence. This is because the constitution presumes the accused person to be innocent until the contrary is proved. See Section 36(5) of the 1999 Constitution FRN, Section 135(1) of the Evidence Act 2011, Dongtoe v. Civil Service Commission, Plateau State (2001) LPELR – 959SC, People of Lagos State v. Umaru (2014)3 SCNJ 114 at 137, Igabele v. State (2006) NWLR (pt.975)100 and Abbey v. State (2017) LPELR – 42358SC p.34-35”. PER J. S. ABIRIYI, J.C.A
CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE STANDARD OF PROOF – STANDARD OF PROOF IN A CRIMINAL TRIAL “The standard of proof in a criminal trial is proof beyond reasonable doubt.-PER J. S. ABIRIYI, J.C.A
CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE OFFENCE OF CULPABLE HOMICIDE – INGREDIENTS OF THE OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH “By virtue of Section 221 of the Penal Code, the ingredients of the offence of culpable homicide punishable with death are: a) that the death of a human being took place; b) that such death was caused by the accused person; c) that the act of the accused that caused the death was done with the intention of causing death; or that the accused person knew that death would be the probable consequence of his act. All the ingredients must be proved before a conviction could be secured. Failure to prove any of the ingredients would result in an acquittal. The onus of proof is on the prosecution throughout. See Adava v. State (2006)9 NWLR (pt.984) 152 at 167. -PER J. S. ABIRIYI, J.C.A ACTION
PRELIMINARY OBJECTION – PURPOSE OF A PRELIMINARY OBJECTION “A preliminary objection is a challenge to the competence of an appeal or the hearing thereof. The purpose of a preliminary objection is to terminate the appeal at that stage if the objection succeeds. See Garba v. Mohammed & Ors (2016) LPELR – 40612SC. -PER J. S. ABIRIYI, J.C.A
APPEAL, CRIMINAL LAW AND PROCEDURE, PRACTICE AND PROCEDURE APPEAL – EFFECT OF FAILURE OF THE PROSECUTION TO APPEAL WITHIN THE SEVEN DAYS STIPULATED BY THE ACT “In the case of Adili v. The State (1989) LPELR 180, Obaseki, JSC held as follows:
“The notice of appeal filed on behalf of the State by the Attorney General of Imo State is far out of time and this court has no power or jurisdiction to entertain the appeal. The right of appeal not having been exercised within the 7 days prescribed by the Judicial etc Officers and Appeals by Prosecutors Act 1963 lapsed and has been lost forever under the Constitution. Sub-sections (3) and 4(1) of Section 4 of the Act No.10 of 1963 read:
“3 The period within which notice of appeal or of an application for leave to appeal to the Supreme Court must, be given by a person or authority other than the accused person in a case which involves or could involve sentence of death or a verdict of guilty of manslaughter or culpable homicide shall be SEVEN days from the date of the decision in question and the Supreme Court shall not have power to extend that period.”
In State v. Omoyele (2016) LPELR – 40842SC, Sanusi, JSC stated:
“Now in the instant case being one on which the Respondent was acquitted of a murder charge; the state which is the prosecutor has right to appeal against such acquittal within 7 days only by virtue of the provision of Section 4 of Judicial etc office and Appeals by Prosecutors Act No.10 of 1963. Sub-section 3 of Section 4 of the Act provides that a prosecutor such as the appellant in this appeal has only 7 days within which to give notice of appeal or to seek leave to appeal in any case which involves or could involve a sentence of death or a verdict of guilty of manslaughter or culpable homicide. The act even went further to provide that the seven days period shall not be extended”
In the earlier case of Adili v. The State, Obaseki, JSC touched on the rationale of this piece of legislation in the following words:
“The earlier cases of capital offences are concluded the better so that all authorities can play their roles with quick dispatch.”
In the State v. Omoyele (supra) Sanusi, JSC elaborated further thus:
“We should not lose sight of the fact that the Judicial, etc, Officer and Appeal by Prosecutors Act No.10, is a special legislation promulgated to limit and narrow the scope of application such as cases involving sentence of death or verdict of guilty of manslaughter such as the situation in this instant appeal. Therefore, the period of appeal which has been constricted to only seven days within which a prosecutor can appeal against such sentence, is aimed at encouraging a prosecutor to be up and doing and appeal immediately if he is dissatisfied with the judgment so that the appeal is heard with minimum of delay and also to forestall the possibility of the offender or convict lingering in prison for a long period without his fate being determined finally and expeditiously too. That is more so, when the Act even prohibits court to grant or entertain application for extension of time in such a situation. Once, a prosecutor fails to appeal within the seven days stipulated by the Act, that is the end of it.” -PER J. S. ABIRIYI, J.C.A
EXTENSION OF TIME WITHIN WHICH TO APPEAL – WHETHER THE COURT HAS JURISDICTION TO EXTEND TIME WITHIN WHICH TO APPEAL OVER TWO YEARS AFTER THE ACQUITTAL AND DISCHARGE OF THE ACCUSED PERSON
“Learned counsel for the Appellant further contended that the Appellant was granted extension of time within which to appeal. In both Adili v. State and State v. Omoyele, the Supreme Court pointed out that under Section 4(3) of the Act the seven days period within which the prosecutor can appeal shall not be extended. In the circumstances, this court had no jurisdiction to extend time within which the Appellant shall appeal over two years after the acquittal and discharge of the Respondent. It is trite law that if a court has no jurisdiction to hear and determine a matter, the proceedings are and remain a nullity no matter how well conducted and brilliantly decided. See Daplanlong v. Dariye (2007)8 NWLR (pt.1036)332. It is therefore not the correct position of the law as contended by learned counsel for the Appellant that the order granting the Appellant extension of time within which to appeal remains valid until set aside. The order granting extension of time to the Appellant within which to appeal is a nullity and remains a nullity. It is immaterial that learned counsel for the Respondent was in court when the application for extension of time was heard and purportedly granted without objection. –PER J. S. ABIRIYI, J.C.A
Statutes Referred To: Court of Appeal Rules 2016.
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