Week 3 &4 Sources of Criminal Procedure Laws


CONTENTS OF A BRIEF OF ARGUMENT

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CONTENTS OF A BRIEF OF ARGUMENT


  • Heading of the Court;

  • Appeal number;

  • The Parties;

  • Title of the Brief;

  • Table of content;

  • Introduction or Preliminary Statement;

  • Issues for determination.-An issue must be based on the grounds of appeal or it will be struck out. -Omodara V. State

  • Brief Statement of facts (summary).

  • Arguments, based on issues raised.

  • Conclusion.

  • List of authorities.

  • Signature, usually that of the Counsel.

  • Address for service.

NOTE -The contents of both the Appellant’s and the Respondent’s Briefs are the same. The contents are also required to feature in the Reply Brief EXCEPT the Statement of fact and the issues for determination.

NOTE- A party shall not be allowed to argue or raise an issue that is not contained in his Brief of Argument during the hearing of the appeal.

CONSEQUENCES OF FAILURE TO FILE BRIEF OF ARGUMENT WITHIN TIME

  • Where an Appellant fails to file his brief within time, his appeal may be STRUCK OUT.

Or. 17 R. 10 CAR.

  • Where a respondent fails to file his respondent’s brief of argument having been duly served with the appellant’s brief of argument, he will not be heard in oral argument. Or. 17 R. 10 CAR.



  • where an Appellant fails to file a reply brief within time he shall be deemed to have conceded all the new points or issues arising from the respondent’s brief of argument. Or. 17 R. 10 CAR.

CONSEQUENCE OF FAILURE TO FILE A NOTICE OF APPEAL

The consequence of failure to file a Notice of appeal is an order of striking out of the appeal for being incompetent. Such an appeal is null and void- AMUSA V. THE STATE


EFFECT OF NOTICE OF APPEAL ON WRONGLY HEADED FORM-

A notice of appeal given on a wrongly headed form is not null and void.

It only amounts to an irregularity, which does not render the notice of appeal invalid.

ETUK UDOH v. THE STATE.

WHEN WILL A NOTICE OF APPEAL OPERATE AS A STAY OF EXECUTION


  • Generally, an appeal does not operate as using of execution of the judgment of the lower court.

  • Therefore, after filing an appeal, an appellant may need to apply for a stay of the execution of the judgment of the court.

In an interlocutory appeal, the Appellant may also need to apply for a stay of proceedings.
This is usually necessary where the decision of the appellate court may affect the final judgment of the trial court.
SOLE EXCEPTION- an appeal against a sentence of death.

In the case of a death sentence, the filing of a notice of appeal operates as a stay of execution.



- BELLO v. A – G OYO STATE


  1. APPEAL FROM THE COURT OF APPEAL TO THE SUPREME COURT.

Appeal against the decision of the Court of Appeal to the Supreme Court may lie as of right or with leave. S. 233 (2) & (3) CFRN ’99.

Appeal will lie as of right in the following cases:



  1. Decisions in any Criminal proceedings where ground of appeal is on question of Law alone;

  2. Decisions in any Criminal proceedings on question as to interpretation of the Constitution;
  3. Decisions in any Criminal proceedings as to whether the provision of Ch. IV of the Constitution relating to Fundamental Rights has been, is being or is likely to be contravened in relation to any person;


  4. Decisions in any Criminal proceeding in which any person has been sentenced to death by the Court of Appeal or which the Court of Appeal has affirmed a sentence of death imposed by any other Court;

  5. Such other cases as may be prescribed by any Act of the National Assembly.-S.233 (2) CFRN ’99.

In other cases, appeal will lie with leave of the Court of Appeal.- S. 233 (3) CFRN ’99.

PROCEDURE OF APPEAL TO THE SUPREME COURT

The procedure of appeal from the decision of the Court of Appeal to the Supreme Court is substantially the same as the procedure of appeal to the Court of Appeal except the differences in the periods for the filing of the Notice of Appeal and the Briefs of Argument. -Or.2 of the Supreme Court Rules (S.R.C.).



PERIOD FOR FILING NOTICE OF APPEAL

Notice of Appeal must be filed within 30 days of the delivery of the decision of the Court of Appeal appealed against.


Interlocutory decision: within 14 days of the delivery of the ruling S. 27(2) (b) S.C.A.
EXTENSION OF TIME
Application may be brought to the Supreme Court for an extension of time within which to file a Notice of Appeal where a party fails to file within time. S. 31 (4) S.C.A.

WHO CAN SIGN A NOTICE OF APPEAL

The notice of appeal or notice of motion for leave to appeal shall be signed by the appellant.

The notice shall be given to the Registrar of Court of Appeal who shall thereafter forward the notice to the Registrar of the Supreme Court. O.9 R. 3 of the Supreme Court Rules


PRESENTATION OF APPEALS AT SUPREME COURT

Hearing of the appeal is by adoption of the briefs filed by the parties.


TIME LIMIT FOR FILING OF BRIEF OF ARGUMENT AT THE SUPREME COURT

a. Appellant’s brief ofargument must be filed within ten weeks of the receipt of the record of appeal from the Court below.-Or. 6 R. 5 (1) (a) SCR.

b. Respondent’s brief of argument must be filed within eight weeks of service of the appellant’s brief on him. Or.6 R. 5(2) SCR.

c. Appellant’s reply, if any, must be filed within four weeks of the receipt of the respondent’s brief - Or.6 R.5(3) S.C.R.



POSSIBLE ORDERS TO BE MADE BY COURT OF APPEAL AND SUPREME COURT

1. Appeal against sentence only

a. Allow the appeal i.e. quash the sentence and substitute another sentence.

b. Dismiss the appeal i.e. Affirm the sentence of lower court.

2. Appeal against conviction

a. Allow the appeal i.e. quash the conviction and acquit the Appellant or order a retrial.

b. Dismiss the appeal i.e. affirm judgment of Lower (High) Court.

c. Set aside the sentence of High Court and substitute another sentence

d. Substitute another conviction.

e. Affirm the judgment in part


3. Appeal against order of Acquittal, Discharge or Dismissal;

Allow the appeal i.e. return a verdict of conviction either sentence the accused according to limit of trial court or order a retrial.



S.19&23 C.A.A. 2004;

S.26 SC ACT

APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL –made at trial court first (i.e. Court of Appeal first)

The court has discretion to grant or refuse an application for extension of time.


  • The application shall be by motion supported by affidavit.

  • The affidavit must disclose reasons, which justify the delay in filing the notice of appeal or leave to appeal within time.

  • The affidavit shall exhibit a copy of the proposed notice or leave.

  • The application for extension of time shall be made to the High Court in case of appeals to High Court. (note)

  • For appeals to CA; the application for extension of time shall be made to the CA.


AMENDMENT OF GROUNDS OF APPEAL

Where the appellant observes a defect in the grounds of appeal, he may amend the defect.

If the time for filing an appeal has not elapsed, he may file amended grounds of appeal

without the leave of court.
If the time limit has elapsed, he must apply for leave to amend the grounds of appeal by motion on notice
ABANDONMENT OF APPEAL

An appeal may be abandoned either expressly or impliedly.



IMPLIED ABANDONMENT OF APPEAL

An appeal is impliedly withdrawn if the Appellant fails to file his grounds of appeal or fulfil other conditions of appeal after filing his Notice.



EXPRESS ABANDONMENT OF APPEAL

  • Where it is express, the appellant must submit a Notice of his intention to abandon in CRIMINAL FORM 11 OR FORM 11A to the Registrar of the Court of which decision is being appealed against (the lower CT). Or.16 R. 18 (1) CAR.

  • The Notice must be submitted NOT LATER THAN 2 DAYS from the date set down for hearing of the appeal.
  • Upon submission of notice of abandonment the Registrar of the High Court will notify the Registrar of the Appeal Court on receipt of the Notice.


Or.2 (Pt.1) R.13(3)(4) & (5) HCL (Appeal) Rules.

  • The Notice may be given to the Registrar of the Court of Appeal by filling Criminal Form 11 or 11A or to Registrar of the Supreme Court as the case may be who shall notify the Registrar of the Court below, the respondent and the prison authority in Criminal Form 12.

Or.16 R. 18(1) & (2) CAR.;

Or.9 R. 9(1) & (2) SCR.

WITHDRAWAL OF NOTICE OF ABANDONMENT

  • A party may withdraw his Notice of abandonment with leave of the Court of Appeal by filling Criminal Form 13 or 13A or the Supreme Court as the case may be. Se Or.16 R.19 CAR.; Or.9 R. 9(3) SCR.

ABATEMENT OF APPEAL

An appeal will abate where an appellant whose ground of appeal is based on a sentence of imprisonment dies before the appeal is heard.



Or.8 R.9 (5) SCR.;

S.64 MCL, Lagos, 2004;

S.291 C.P.C.;

R. V. Rowe [1955]39 CAR. 57.

Bello v. AG Oyo

NOTE-However, appeal will not abate on the death of the appellant where the ground of appeal is founded on sentence of fine. This is because the fine may be levied on the deceased/appellant’s estate notwithstanding his death. R. V. Rowe .

WHEN CAN A RE-TRIAL MAY BE ORDERED

An Appeal Court may order a re-trial where all the following conditions are present:

i. That there has been an error in Law or an irregularity in procedure such that although the trial was not rendered a nullity, it cannot be said that a miscarriage of justice has been occasioned;

ii. That leaving the error or irregularity, the evidence taken as whole discloses a substantial case against the appellant;

iii. That there are no special circumstances as would render it oppressive to put the appellant on trial a second time;

iv. That the offence(s) of which the appellant was convicted or the consequences to the appellant or to any other person of the conviction or acquittal of the appellant, are not merely trivial; and

v. That to refuse an order for re-trial would occasion a greater miscarriage of justice

NOTE That the above conditions are cumulative. YESUFU ABODUNDE & ORS. V. R. . OKAFOR VS. STATE and AIGBE VS. STATE

NOTE FURTHER-An order of retrial will not be ordered if it would enable the Prosecution to adduce evidence as the missing link to succeed in obtaining a conviction. –

ANKWA VS STATE,

KAJUBO VS STATE

ADEOYE VS. STATE.

DIFFERENCE BETWEEN RETRIAL AND TRIAL DENOVO

RE TRIAL – Most often goes to a different court or a different judge to hear all over again a case which has been tried on and determined by a judgement.
TRIAL DE NOVO: This is a fresh trial of a case that was previously part heard by another judge but was not determined by a judgment.

NOTICE OF FINAL DETERMINATION OF AN APPEAL

The decision or outcome of every appeal must be communicated to the following persons:

i. The Appellant; if he is in custody

ii. The Respondent;

iii. The Prison Authority; and

iv. The Registrar of the court whose decisions was appealed against



BAIL PENDING APPEAL

A convicted person who has appealed against his conviction may apply to be released on bail pending the determination of his appeal.

The grant of bail is now at the Court’s discretion and not as of right.

S. 54 (2) (a) Magistrates’ Courts Law of Lagos state;

S. 283 (4) & 340 (2) C.P.C in respect of appeals from Area to Upper Area Court

S. 28&29 (1) Ct of Appeal Act.;

S.31(1) S.C.A.;

Or.9 R.4(6) S.C.R.;

Kuti V. Police

CONDITIONS FOR THE GRANT OF BAIL PENDING APPEAL .

The Appellant is required to show EXCEPTIONAL OR SPECIAL circumstances (Ajayi v. state) why bail should be granted.

At this stage, the appellant is a convict, and has lost the presumption of innocence guaranteed by the Constitution.-

O.17 R.18 of the Court of Appeal Rules 2011 and Forms 11 and 11A of the Rules.
CONDITIONS


  1. There must be a valid Notice of Appeal

  2. The grounds of appeal are likely to succeed against the conviction on point of Law FAWEHIMI V. STATE .

  3. That the duration of appeal may out last the duration of the sentence

R. V. TUNWASE ;

OKOROJI V. THE STATE ;

MADIKE V. THE STATE ;

OLAMOLU V. FRN

OBI V STATE (1992)

  1. The real case is so complex that constant consultation between the convict and his counsel is required for the preparation of the appeal. -R. V. STARKIE

  2. The appellant’s health is seriously in jeopardy and can not be taken care of at the Prison facility. FAWEHINMI VS. STATE (1990): appellant had to prove from the nature of his illness, he needed constant medical attention and the type of treatment required is not readily movable; CHUKWUNYERE V. THE C.O.P.

  3. The conduct of the appellant during trial in relation to the bail earlier granted(not jumping bail). MUNIR VS. FRN.

  4. Where the appellant is a first time offender.

  5. Where the sentence is manifestly contestable

  6. The severity of the offence: George v FRN (2011)

  7. Where there is a mistrial on the face of the records

PROCEDURE FOR APPLYING FOR BAIL PENDING APPEAL

The application is made by a motion on notice to be supported with:


  1. Affidavit showing special circumstances for its grant


  2. CTC of the judgment of the Court convicting him

  3. CTC of the Notice of appeal.


NOTE THE FOLLOWING

  • The proper procedure to be followed when bail application is refused by the High Court is to appeal to the Court of Appeal. THE STATE VS. UWA

  • Where several accused persons are charged together and they file a joint appl. for bail pending appeal by way of motion, the motion must be supported by separate affidavits sworn to by each accused person personally or by some other person.- ATIGBU V. COP.

  • The application is first made to the trial court before it can be made to the appellate court if it is refused. -OFFIONG VS. COP

See sample draft of a Notice of Appeal and a Motion on Notice for bail pending appeal/Affidavit in support of the Motion:

NB: File separate notices of appeal for each accused person

Criminal Form 3 (for second appeal) – Form for – adapt the form to the particular situation in hand

Form 1 is for first appeal



IN THE COURT OF APPEAL OF NIGERIA

SITTING AT ABUJA

CASE NO: CR/213/2015

APPEAL NO………….

BETWEEN:

1.RAMPAM ALECHENU …………APPELLANT

AND

THE FEDERAL REPUBLIC OF NIGERIA…………. RESPONDENT

NOTICE OF APPEAL

To the Registrar

Court of Appeal

Abuja.

I, RAMPAM ALECHENU having been convicted of the offence of conspiracy to commit culpable homicide punishable with death and now being a Prisoner in Prison at the Federal Prisons Abuja, DO HEREBY GIVE NOTICE of Appeal against my conviction on the following grounds:

GROUND ONE:

The Learned trial Judge erred in Law when he convicted the accused on no admissible evidence proving his guilt beyond reasonable doubt.

PARTICULARS OF ERROR:

1. The evidence of PW1 is hearsay and it did not link the death of the victim to the 1st Accused/Appellant.

GROUND TWO

The decision of the trial judge is unreasonable and cannot be supported having regard to the evidence.

………………..


APPELLANT

Only where person is an illiterate, then needs an illiterate jurat

DATED THIS 10TH DAY OF AUGUST 2015
Ade Adamu

Appellant’s Counsel

Address

Phone number

Email address
FOR SERVICE ON:

The Respondent,

The Attorney-General of the Federation,

Federal Ministry of Justice,

Abuja.

Bail pending appeal:

IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY, ABUJA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT BWARI

CASE NO: CV/AF/345………………

APPEAL NO:…………

MOTION NO…………

BETWEEN:

RAMPAM ALECHENU …………………. APPLICANT/APPELLANT

AND

THE FEDERAL REPUBLIC OF NIGERIA….. COMPLAINANT/RESPONDENT

MOTION ON NOTICE FOR BAIL

BROUGHT PURSUANT TO SECTION 341(2)(B) AND (C) OF THE CRIMINAL PROCEDURE CODE ACT AND

UNDER THE INHERENT JURISDICTION OF THIS HONOURABLE COURT

TAKE NOTICE that this Honourable Court will be moved on the …….day of ……….2015 at the Hour of 9 O’clock in the forenoon or so soon thereafter as Counsel on behalf of the Appellant/Applicant may be heard praying this Honourable Court for the following:

1.AN ORDER releasing the Appellant/Applicant to bail pending the determination of the appeal against his conviction at the Court of Appeal.

2. AND FOR SUCH FURTHER ORDER AND ORDERS as this Honourable Court may deem fit to make in the circumstances.


DATED THIS ……DAY OF ………………………. 2015.

………………


Abaji Ekon

Applicant’s Counsel

Adamu & Co

No 15 Broad Street Abuja

Phone number

Email address



FOR SERVICE ON:

The Attorney-General of the Federation,

Federal Ministry of Justice,

Maitama


Abuja, FCT

IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY, ABUJA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT BWARI

CASE NO……..

APPEAL NO…………

BETWEEN:

RAMPAM ALECHENU …………………. APPLICANT/APPELLANT

AND

THE FEDERAL REPUBLIC OF NIGERIA….. COMPLAINANT/RESPONDENT

AFFIDAVIT IN SUPPORT OF MOTION FOR BAIL

I, RAMPAM ALECHENU, Male, Adult, Christian, Student and a Nigerian Citizen of One House Estate Bwari Abuja do hereby make oath and state as follows:



  1. That I am the 1st Applicant/Appellant in this case and by virtue of which I am conversant with the facts of the case.

  2. I was tried and convicted for conspiracy to commit culpable homicide punishable with death by this Court dated the 11 day of June 2011.

  3. That consequent upon my conviction and sentence, I have appealed against it to the Court of Appeal Abuja Division and a copy of the Notice of Appeal filed on the 13 day of June 2011 is attached and marked Exhibit ‘A’.

  4. That I will be very material in the preparation of my appeal as I was told by my Counsel which I verily believe to be true.
  5. That the grounds for the conviction and sentence are doubtful in Law, and granting me bail pending the hearing of the appeal is just in the circumstances.


  6. That the possible determination of the Appeal may out last my sentence of six months term of imprisonment.

  7. That I make this statement in good faith believing its contents to be true and correct and in accordance with the Oaths Act 2004.

…………………….

Deponent

Sworn to at the High Court FCT Registry, This ………….day of …………… 2011.

BEFORE ME

…………………………

COMMISSIONER OF OATHS



NB:-

Please note that if an application for bail pending appeal is refused by the trial Court, the subsequent application to the Appeal Court should be made exhibiting the following:



  1. Copy of the Judgment of the trial Court

  2. Copy of the Notice of Appeal

  3. copy of the order/Judgment of the Court refusing the application by the trial Court

  4. copy of a medical report, if the application is on the ground of ill health.



IN THE COURT OF APPEAL OF NIGERIA

SITTING AT ABUJA

APPEAL NO:

BETWEEN

RAMPAM ALECHENU………APPELLANT

AND

THE FEDERAL REPUBLIC OF NIGERIA…….RESPONDENT

APPELLANT’S BRIEF OF ARGUMENT

INTRODUCTION/PRELIMINARY STATEMENT

This is an appeal against the decision of the High Court of the Federal CPLital Territory delivered on 11th day of July 2015 by Hon Justice Maza Maza. The Notice of Appeal was filed on….. The Appellant was arraigned on a charge of murder preferred by the Attorney General of the Federation and subsequently convicted of conspiracy to commit murder


ISSUES FOR DETERMINATION

1) Whether the learned trial judge erred in law by convicting the accused person of a charge unsupported by evidence in the case.


STATEMENT OF FACTS

The Prosecution called 25 witnesses …….



ARGUMENTS ON THE ISSUES FOR DETERMINATION

ISSUE ONE

It is trite law that for a charge of conspiracy to stand, there must be an agreement between two or more persons. Therefore, it is not possible to convict only one person of conspiracy since there must be an agreement with someone else to conspire. See the case of …..



CONCLUSION/SUMMARY

This Honourable Court is urged to quash the decision of the trial court and acquit the accused of the offence of conspiracy of culpable homicide punishable by death



LIST OF AUTHORITIES

JUDICIAL

STATUTORY

DATED THIS 10TH DAY OF AUGUST 2015

E Dafe


Dafe & Co

No 3 Ahmadu Road, Abuja

Email address

Phone number



For service on:

The Attorney General of the Federation



Maitama

Abuja, FCT


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