Appellant's Brief of Argument (Sample Draft)

(SAMPLE DRAFT)

IN THE COURT OF APPEAL

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

CASE No: ABJ/001/M8

APPEAL No:

BETWEEN

MUSA UGOCHUKWU                 -           -           -           -           -           APPELLANTS

AND

FEDERAL REPUBLIC OF NIGERIA     -           -           -           -           RESPONDENT

APPELLANT’S BRIEF OF ARGUMENT

INTRODUCTION

This is an appeal against the decision of the High Court of the Federal Capital Territory delivered on the 16^th 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 Murder of 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 to death 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 2^nd Appellant for an offence not known to Law and in the alternative whether the 2^nd Appellant could be sentenced without first being convicted.

2.      Whether the 2^nd Appellant could be sentenced to death by firing squad in the circumstance of the case.

3.      Whether or not a valid judgment of the High Court can be delivered orally and 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 reasonable doubt.

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 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 2^nd Appellant for the offence of murder.

In the alternative, a sentence of a Court is premature in the absence of a conviction. A sentence 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 2^nd 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 2^nd 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 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 12^th December, 2007 and judgment was delivered on the 16^th 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 from the 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 Section 36(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.

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 Judge’s 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 under S. 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 2^nd 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 Judge’s decision and discharge and acquit the 1^st and 2^nd 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.

LIST OF AUTHORITIES

1. The Constitution of the Federal Republic of Nigeria 1999
2. Evidence Act Cap E14 LFN 2004
3. Criminal Procedure Code
4. Penal Code
5. Sugh v. State (1988) 2 NWLR (Pt 77) 475
6. Adamu & Ors v. State (1986) 3 NWLR (Pt 32) 865
7. Aoko v. Fagbemi & Anor (1961)1 ANLR Pg 400

DATED THIS 23^rd 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.

By Barr. Chigozie Ezekiel +2348034997413, victorezekielc@yahoo.com

Follow @wingrassnews