Can an Accused Make Arguments on Innocence of a Co-Accused Who Did Not Appeal to Prove His Innocence

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CASE TITLE: LAMBERT NWIKO v. THE STATE (2022) LPELR-57747(SC)

JUDGMENT DATE: 13TH MAY, 2022

JUSTICES:

  1. CHIMA CENTUS NWEZE, JSC
  2. AMINA ADAMU AUGIE, JSC
  3. HELEN MORONKEJI OGUNWUMIJU, JSC
  4. ADAMU JAURO, JSC
  5. EMMANUEL AKOMAYE AGIM, JSC

PRACTICE AREA:                APPEAL-CRIMINAL APPEAL

 FACTS:

The Appellant, Lambert Nwiko was arraigned with five others for the death of one Baribiae Iledae. The case of the Respondent was that the deceased and his sister, one Cecilia Tor-ue who testified as PW1 went to the deceased’s farm to do some work. Cecilia in her evidence on oath testified that on their way back from the farm, the Appellant, the 1st and 3rd accused persons and others still at large who were in the 1st accused person’s Peugeot 504 drove past them, but then reversed the car and attacked the deceased with knives and axes while others joined them from the bush. PW1 testified further that she went to a nearby village to call for help and upon her return to the scene of crime, the assailants had killed the deceased as a result of multiple machete wounds and left his body in the bush. The following morning, she reported the matter to the village head, who wrote her a letter which she took to the police. According to PW1’s narrative, prior to the incident which culminated into the killing of her brother, there was a pending litigation between the deceased and the 1st accused person whose car was used in conveying the killers to the crime scene.

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On his part, the Appellant denied committing the offence charged. He even denied making a statement to the police. At the conclusion of trial and after the adoption of final written addresses, the learned trial Judge delivered a considered judgment wherein he found the Appellant and two others guilty as charged and sentenced them to death by hanging.

The convicts were dissatisfied with the judgment of the trial Court and appealed to the Court of Appeal but lost. In a bid to exhaust his constitutionally guaranteed right of appeal, the Appellant, alone, invoked the appellate jurisdiction of the Supreme Court.

ISSUE FOR DETERMINATION

The Appeal was determined on the sole of whether on the total circumstances of this case, the Court of Appeal sitting at Port-Harcourt was right when it affirmed the conviction and sentence of the Appellant by the Court of Trial.

COUNSEL SUBMISSIONS

Counsel for the Appellant contended that there was no evidence linking the Appellant with the offence charged. It was argued extensively that the case as it pertains to the 1st accused person is important because if it is shown that he is not guilty, the Respondent’s case would collapse since it was alleged that it was the 1st Accused who gathered the Appellant and others to kill the deceased. On the whole, Counsel urged the Court to allow the appeal and to acquit and discharge the Appellant.

In response to the Appellant’s contention that PW1’s evidence lacks credibility, Counsel for the Respondent submitted that the contention is not supported by the available evidence as the trial Court found the testimony of PW1 to be direct, and unshaken on the identity of the Appellant as one of the killers of her brother.

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Counsel urged the Court not to interfere with the concurrent findings of the lower Courts accepting the evidence of PW1 that the Appellant was one of those who killed the deceased as the findings of the Courts below are not perverse and are based on the evidence on record. He finally urged the Court to dismiss the appeal and to uphold the decision of the lower Court affirming the conviction of the Appellant for the offence of murder by the trial Court.

Exercising his right of reply, counsel for the Appellant insisted in his submission, that there was no compelling circumstantial evidence linking the Appellant with the offence charged.

DECISION/HELD

In the final analysis, the Supreme Court dismissed the appeal.

RATIO

  1. APPEAL – CRIMINAL APPEAL:

Whether a criminal appeal must only relate to the instant accused person who is the appellant that initiated same

 “The Appellant’s counsel in his brief also argued strenuously on the innocence of the 1st accused person at trial. According to his submission, if it is shown that the 1st accused person is not guilty, the Respondent’s case would collapse because it was the 1st accused who was said to have gathered the Appellant and others to kill the deceased. Let me at this juncture point out that the instant appeal was initiated by Lambert Nwiko, the Appellant herein. The Appellant’s counsel cannot foist on this Court to use the instant appeal to set aside the conviction and sentence of the 1st accused person. In appellate proceedings, issues for determination are not formulated out of anywhere. They must have their roots in the grounds of appeal. The submissions and arguments on issue(s) distilled from the grounds of appeal must in turn also have their foundation from the issues formulated for determination.

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The Appellant’s counsel skillfully, albeit unsuccessfully tried to surreptitiously bring an appeal on the findings of the trial Court on the guilt of the 1st accused using same as leeway to argue the innocence of the Appellant. Assuming but without agreeing that the Appellant’s counsel is not precluded from raising these points, it is my opinion that all the submissions and arguments regarding the failure of the Respondent to dislodge the defences raised by the 1st accused have no root in the grounds of appeal before this Court. A perusal of the grounds of appeal vis-a-vis their particulars would reveal that a substantial part of the Appellant’s brief was targeted at proving the innocence of the 1st accused person whose appeal is not before this Court. It is regrettable that the Appellant’s counsel made more submissions and arguments regarding the innocence of the 1st accused person than that of the Appellant, whose appeal is under consideration. I find this alien to appellate practice and procedure.” Per JAURO, J.S.C.

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