CHUKWUEMEKA EZEUGO v. THE STATE (2013)

CHUKWUEMEKA EZEUGO v. THE STATE

(2013)LCN/6696(CA)

In The Court of Appeal of Nigeria

On Friday, the 1st day of February, 2013

CA/L/498/2007

RATIO

CONDITIONS FOR A CONTRADICTION TO BE FATAL TO THE PROSECUTIONS CASE

WORDS AND PHRASES: CORROBORATION

Corroboration is a confirmation of a witness’ evidence by an independent testimony, to the effect that not only a crime has been committed but it was committed by the accused. Corroborative evidence must be independent and capable of implicating the accused in relation to the offence charged. Hence to satisfy the requirement of corroboration, the evidence must show that an offence was committed and the accused is implicated in the commission of the offence – see Nwambe v. State (1995) 3 SCNJ 77 at 97, Ogunbayo v. State (2002) 15 NWLR (Pt.789) 76, Mbele v. State (1990) 4 NWLR (Pt.145) 484, Dagayya v. State (2006) 1 SC (Pt.11) 1 at 18, Nwankoala v. State (2005) 12 NWLR (Pt.940) 637 at 679, Igbine v. State (1997) 9 NWLR (Pt.519) 101 at 108. Per ADAMU JAURO J.C.A.

WORDS AND PHRASES: TAINTED WITNESS

In the consideration of this issue, a good starting point will be from the definition of the term “tainted witness”.

A tainted witness may be defined as a witness who may not in the strict sense be an accomplice but who in giving his evidence is established to have some purpose of his own to serve and in respect of whom it is desirable that the warning as to corroboration be given. See David Omotola v. The State (2009) 7 NWLR (Pt.1139) 149, Moses v. State (2006) 16 NWLR (Pt.987) 173. Per ADAMU JAURO J.C.A.

WHETHER IT IS THE DUTY OF THE ACCUSSED PERSON TO GIVE DETAILS OF THE ALIBI HE SETS UP

It is however the duty of the accused person relying on the defence of alibi to give the details of the alibi he sets up to enable the prosecution investigate it. His duty involves letting the police know at the earliest opportunity, where and with whom he was at the material time. See The State v. Fatai Azeez & Ors (2008) 4 SC 188, Samuel Bozin v. The State (1985) 2 NWLR (Pt.8) 465, Obakpolor v. State (1991) 1 NWLR (Pt.165) 113, Udo Akpan v. The State (1986) 3 NWLR (Pt.27) 258, Okosi v. State (1989) 1 NWLR (Pt.100) 642, Emenegor v. State (2010) All FWLR (Pt.511) 884, Ogoala v. State (1991) 2 NWLR (Pt.175) 509. Per ADAMU JAURO J.C.A.

REQUIREMENT FOR A STATEMENT TO QUALIFY AS A DYING DECLARATION

It is very clear from the provisions of Section 33(1)(a) of the Evidence Act, for a statement to qualify as dying declaration, the person making the statement must believe himself to be in danger of approaching death. The belief in the danger of approaching death is subjective not objective. The person making the declaration must believe himself to be in danger of approaching death, as nobody would wish to die with a lie on his lips. The danger of approaching death cannot be inferred from surrounding circumstances or the opinion of third parties. See Okoro v. State (2012) 4 NWLR (Pt.1290) 351 at 372, Akpan v. State (1992) 6 NWLR (Pt.248) 439 at 469, Hausa v. State (1994) 6 NWLR (Pt.350) 281 at 289, R. v. Ogbuewu (1949) 12 WACA 483, Akpan v. State (1967) NMLR 185. Per ADAMU JAURO J.C.A.

Before Their Lordships

AMINA ADAMU AUGIEJustice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWAJustice of The Court of Appeal of Nigeria

ADAMU JAUROJustice of The Court of Appeal of Nigeria

Between

CHUKWUEMEKA EZEUGO
(ALIAS DR. REV. KING)Appellant(s)

AND

THE STATERespondent(s)

ADAMU JAURO J.C.A. (Delivering the Leading Judgment): The appeal herein is against the judgment of the High Court of Lagos State, Ikeja Judicial Division delivered on 11th January, 2007 by Hon. Justice J. O. K. Oyewole in case No.ID/133C/2006.
A brief synopsis of the facts culminating in this appeal is hereby made as follows: The appellant is the General-Overseer of the Christian Praying Assembly Church, a religious organisation with its headquarters at Ajao Estate, Lagos. The appellant was residing at No.6B, Canal View Layout, Ajao Estate, Lagos. Some members of the Christian Praying Assembly Church, including the deceased and the persons the appellant attempted to murder were staying in the appellant’s residence, rendering different kind of services to the appellant.
The appellant accused some of the Church members living in his residence of fornicating with one another. It was the prosecution’s case, that based on the aforementioned accusation, the appellant on or about the 22nd day of July, 2006 at No.6B Canal View Layout, Ajao Estate intentionally caused petrol to be poured on the six persons and threw a lit match on them. The six persons sustained various degrees of injuries and burns but that of the deceased was most severe, hence she was rushed to Faith Hospital in Lagos. The deceased was admitted in the said hospital on the date of the incident and eventually died on 2nd August, 2006.
Based on the aforementioned facts, the appellant as an accused person was arraigned before the lower court on 26th September, 2006 on a six count charge to which he pleaded not guilty. In the course of trial the charge was amended twice and the accused maintained his plea of not guilty. The final amended six count charge dated 4th December, 2006 reads thus:

“STATEMENT OF OFFENCE 1ST COUNT

Attempted murder contrary to Section 320 of the Criminal Code Law Cap. C.17 Vol.2 Laws of State 2003.

PARTICULARS OF OFFENCE

CHUKWUEMEKA EZEUGO ALIAS DR. REV. KING ‘m’ on or about the 22nd of July, 2006 at No.6B Canal View Layout Ajao Estate, Lagos in the Ikeja Judicial Division did attempt to murder Olisa Chiejina by intentionally causing fuel to be poured on his person and throwing a lit match on him.

STATEMENT OF OFFENCE 2ND COUNT

Attempted murder contrary to Section 320 of the Criminal Code Law Cap C.17 Vol.2 Laws of Lagos State 2003.

PARTICULARS OF OFFFNCE

CHUKWUEMEKA EZEUGO ALIAS DR. REV. KING ‘m’ on or about the 22nd of July, 2006 at No.6B Canal View Layout Ajao Estate, Lagos in the Ikeja Judicial Division did attempt to murder Onuorah Chizoba by intentionally causing fuel to be poured on her person and throwing a lit match on her.

STATEMENT OF OFFENCE 3RD COUNT

Attempted murder contrary to Section 320 of the Criminal Code Law Cap C.17 Vol.2 Laws of Lagos State 2003.

PARTICULARS OF OFFENCE

CHUKWUEMEKA EZEUGO ALIAS DR. REV. KING ‘m’ on or about the 22nd of July, 2006 at No. 6B Canal View Layout Ajao Estate, Lagos in the Ikeja Judicial Division did attempt to murder Vivian Ezeocha by intentionally causing fuel to be poured on her person and throwing a lit match on her.

STATEMENT OF OFFENCE 4TH COUNT

Attempted murder contrary to Section 320 of the Criminal Code Law Cap C.17 Vol.2 Laws of Lagos State 2003.

PARTICULARS OF OFFENCE

CHUKWUEMEKA EZEUGO ALIAS DR. REV. KING ‘m’ on or about the 22nd of July, 2006 at No.6B Canal View Layout Ajao Estate, Lagos in the Ikeja Judicial Division did attempt to murder Jessica Nwene by intentionally causing fuel to be poured on her person and throwing a lit match on her.

STATEMENT OF OFFENCE 5TH COUNT

Attempted murder contrary to Section 320 of the Criminal Code Law Cap. C.17 Vol.2 Laws of Lagos State 2003.

PARTICULARS OF OFFENCE

CHUKWUEMEKA EZEUGO ALIAS DR. REV. KING ‘m’ on or about the 22nd of July, 2006 at No.6B Canal View Layout Ajao Estate, Lagos in the Ikeja Judicial Division did attempt to murder Kosisochukwu Ezenwankwo by intentionally causing fuel to be poured on his person and throwing a lit match on her.

STATEMENT OF OFFENCE 6TH COUNT

Murder contrary to Section 316 of the Criminal Code Law Cap. C.17 Vol.2 Laws of Lagos State 2003.

PARTICULARS OF OFFENCE

CHUKWUEMEKA EZEUGO ALIAS DR. REV. KING ‘m’ on or about the 22nd of July, 2006 at No.6B Canal View Layout Ajao Estate, Lagos in the Ikeja Judicial Division murdered Ann Uzoh alias Ann Uzoh King.”

The trial commenced on 9th October, 2006 in the course of which the prosecution called 12 witnesses while the defence called 9 witnesses including the accused. Exhibits in terms of documents and real evidence were tendered and admitted in evidence. Upon the conclusion of evidence, both parties addressed the court and judgment reserved. In a judgment delivered on 11th January, 2007 the lower court found the appellant guilty on all the counts and sentenced him to death on the count of murder and twenty years imprisonment with hard labour in respect of each of the other counts of attempted murder in the following words on page 856 of the record:
“The accused is hereby sentenced as follows:
1. 20 years imprisonment including hard labour in respect of count 1.
2. 20 years imprisonment including hard labour in respect of count 2.
3. 20 years imprisonment including hard labour in respect of count 3.
4. 20 years imprisonment including hard labour in respect of count 4.
5. 20 years imprisonment including hard labour in respect of count 5.
6. All the prison sentences shall run concurrently and shall only take effect if the sentence in respect of count 6 is commuted or otherwise set aside.
7. And having been found guilty of murder in respect of count 6 the sentence of the court UPON YOU CHUKWUEMEKA EZEUGO ALIAS DR. REV. KING is that you be hanged by the neck until you be dead and may the Lord have mercy on your soul.”

Peeved and piqued by the aforementioned judgment, the appellant on 16th January, 2007 appealed against same by a notice of appeal anchored upon sixteen grounds of appeal. On 10th June, 2008 the appellant was granted leave by this court to file and argue additional grounds of appeal. Consequently the amended notice of appeal containing thirty one grounds of appeal was filed on 17th June, 2008. In strict compliance with the Rules of court parties filed and exchanged briefs of argument. The appellant’s brief of argument is dated 23rd June, 2008 and filed on 24th June, 2008 while the appellant’s reply brief is dated 2nd April, 2012 and filed the same date. The respondent’s brief of argument is dated 20th April, 2011 and filed on 21st April, 2011.

Mr. Olalekan Ojo for the appellant adopted the two briefs filed by the appellant in urging the court to allow the appeal and quash the conviction and sentence. Learned counsel submitted that the lower court was wrong in suo motu raising the issue as to admissibility of Exhibits P2, P4 and P9 and expunging them without hearing the parties. Mr. Lawal Pedro SAN, Solicitor General Lagos State leading Mr. Femi Adamson, Assistant Chief State Counsel and Mr. Mikhail Kadiri State Counsel, adopted the respondent’s brief in urging the court to dismiss the appeal in its entirety. Learned senior counsel conceded that though they were not invited to address the court on Exhibits P2, P4 and P9 but argued that it is not every error that affects the judgment in view of the other evidence adduced. On the defence of alibi raised, learned senior counsel submitted that the defence cannot succeed in view of the evidence of eyewitnesses fixing the accused to the crime. Learned Senior Counsel urged that the appeal be dismissed.

The appellant distilled sixteen issues for determination from the thirty one grounds of appeal. The said issues as submitted by the appellant are hereby reproduced, thus:

“ISSUE ONE

Whether the learned trial Judge was right in raising suo motu the issue of the inadmissibility of Exhibits P1 and P4 as well as oral evidence before the trial Court to the effect that the deceased Ann Uzoh King had declared or stated that the burn injuries suffered by her were from a generator accident and that the Appellant was not responsible for it and determining the issue raised suo motu against the Appellant without hearing the parties, particularly the Appellant.

This issue is covered by ground 15 of the amended notice of appeal.

ISSUE TWO

Whether or not the learned trial Judge was right to have believed and accepted the evidence of the Prosecution when writing his judgment before considering the evidence led by the defence.

This issue is covered by ground 4 of the amended notice of appeal.

ISSUE THREE

Whether or not the learned trial Judge was right in expunging from the record when writing his judgment as inadmissible dying declaration, Exhibits P1 and P4 as well as oral evidence before the trial Court to the effect that the deceased Ann Uzoh King had declared or stated that the burn injuries suffered by her were from a generator accident and that the Appellant was not responsible for the injuries.

This issue is covered by ground 17 of the amended notice of appeal.

ISSUE FOUR

Whether or not the declaration or statement by the deceased Ann Uzoh King to the effect that the burn injuries suffered by her were from a generator accident and that the Appellant was not responsible for the said burn injuries is admissible as forming part of the res gestae assuming without conceding that the said declaration is inadmissible as dying declaration.

This issue is covered by ground 18 of the amended notice of appeal.

ISSUE FIVE

Whether or not the learned trial judge was right in holding that the evidence of PW2, the investigating Police Officer to the effect that the deceased Ann Uzoh King in answer to the question of the said PW2 stated that the Appellant was not responsible for the burn injuries suffered by the deceased Ann Uzoh King is inadmissible in law, because it is hearsay evidence.

This issue is covered by ground 19 of the amended notice of appeal.

ISSUE SIX

Whether the learned trial Judge summed up the evidence of the Appellant in a manner that vitiated and impaired the evidence of the Appellant and thus breached the right of the Appellant to have his case fairly considered by the trial court.

This issue is covered by ground 20 of the amended notice of appeal.

ISSUE SEVEN

Whether or not the learned trial Judge was right by his failure to hold as incredible and improbable the case of the Prosecution that six persons had petrol poured on them when the six persons claimed to have been standing in a pool of petrol poured on them while only one person got seriously burnt and the second victim was lightly touched by fire after a lit match had been thrown at the six of them by the Appellant.

This issue is covered by ground 29 of the amended notice of appeal.

ISSUE EIGHT

Whether or not the learned trial Judge was right in treating PW4 as a reliable witness and acting on her evidence to convict the Appellant.

This issue is covered by ground 22 of the amended notice of appeal.

ISSUE NINE

Whether the learned trial Judge was right in rejecting in its entirety the evidence of DW1 on the ground that her evidence is incredible.

This issue is covered by ground 21 of the amended notice of appeal.

ISSUE TEN

Whether the trial Judge was right in his conclusion that the appellant’s defence of alibi was not properly set up and that the said defence of alibi collapsed.

This issue is covered by grounds 12, 27 & 28 of the amended notice of appeal.

ISSUE ELEVEN

Whether or not the learned trial Judge was right by not holding that PW1 is a tainted witness whose evidence requires corroboration by rules of practice and by not warning himself as to the danger of acting on the evidence of PW1 in the absence of corroboration.

This issue is covered by ground 30 of the amended notice of appeal.

ISSUE TWELVE

Whether or not the learned trial Judge was right by not holding that the evidence of PW9 is credible and in acting on it in convicting the appellant.

This issue is covered by ground 31 of the amended notice of appeal.

ISSUE THIRTEEN

Whether or not the learned trial Judge was right in regarding as true the evidence of PW10 and acting on it in convicting the Appellant.

This issue is covered by ground 26 of the amended notice of appeal.

ISSUE FOURTEEN

Whether or not the learned trial Judge was right in holding that the evidence of PW3 and PW4 had been corroborated by the evidence of PW1, PW8, PW9 and PW10. PW9 as well as other real evidence before the trial Court.

This issue is covered by grounds 5, 23, and 25 of the amended notice of appeal.

ISSUE FIFTEEN

Whether or not the learned trial Judge properly and adequately evaluated the totality of the evidence before the trial court before coming to the conclusion that the Appellant committed the offences with which he had been charged.

This issue is covered by ground 24 of the amended notice of appeal.

ISSUE SIXTEEN
Whether the learned trial Judge was right in holding that the case of murder and attempted murder had been established against the Appellant beyond reasonable doubt as mandatorily required in law having regard to the totality of the evidence before the trial Court.

This issue is covered by grounds 6, 7, 9, 10, 11, 13, 14 and 16 of the amended notice of appeal.”

The respondent on its part, nominated seven issues for determination on pages three to four of its brief of argument, as follows:
“(1) Whether the learned trial Judge is obliged to invite parties to address him on the issue before expunging from his record when delivering his judgment any evidence that was wrongly admitted (ground 15 of the Amended Notice of appeal).
(2) Whether the learned trial Judge was right from expunging Exhibits P1 and Exhibits P4 as well as part of the oral evidence of PW2 from the record when delivering his judgment. (Ground 17 of the Amended Notice of Appeal).
(3) Whether the learned trial judge was right to have dismissed the defence of Alibi put up by the Appellant. (Ground 12, 27 and 28 of the Amended Notice of Appeal).
(4) Whether PW1 is a tainted witness whose evidence required corroboration and in the absence of which his evidence should be treated as unreliable (Ground 30 of the Amended Notice of Appeal).
(5) Whether the learned trial Judge was right when he held that the evidence of PW3 and PW4 were corroborated by the evidence of PW1, PW8, PW9 and PW10 as well as other real evidence before the court. (Grounds 5, 23 and 25 of the Amended Notice of Appeal).
(6) Whether the learned trial Judge properly evaluated the evidence of the parties before arriving at his decision to convict the Appellant (Grounds 4, 20, 21, 22, 24, 26, 29, 31 of the Amended Notice of Appeal).
(7) Whether the learned trial Judge was right when he held that the prosecution proved the cases of murder and attempted murder against the Appellant beyond reasonable doubt. (Grounds 6, 7, 9, 10, 11, 13 and 14 of the Amended Notice of Appeal).”

The issues for determination identified by both parties to this appeal are virtually the same and identical, though the issues submitted by the respondent appear to be more concise and all embracing. Hence the appeal will be resolved on the issues submitted by the respondent.

Issues 1 and 2

The appellant’s issues 1, 3, 4 and 5 are those treated in the Respondent’s issues one and two. The appellant contended that the trial court in its judgment raised the issue as to the admissibility of exhibits P1, P4 and P9 and part of the oral testimonies of PW2, PW5 and PW7, and expunged same without inviting parties to address it. The appellant argued that a court must not raise an issue suo motu and resolve it against a party without having heard the party against whom the issue is resolved against and such an action by the lower court violates the constitutional right of the affected party to fair hearing. The appellant posited that none of the parties raised any issue as to the admissibility of the said evidence, but the lower court raised it suo motu and held that the said documentary and oral evidence was inadmissible either as dying declaration or res gestae and accordingly expunged same. By its failure to invite parties to address it before expunging the said evidence, the appellant argued that the lower court was wrong in doing so. In support of this contention, reference was made to the following cases: Ndidi v. State (2007) 12 NWLR (PT.1052) 633 at 659, ARAKA V. EJEAWU (2001) 1 SCM 50 AT 55, AGBI V. OGBE (2004) 17 NSCQR (PT.991) 299 AT 321 – 322, UGO V. OBIEKWE (1989) 2 SC (PT.11) 41 AT 53, MOSES V. STATE (2006) QCCR VOL. 6 P.1 AT 47.

The appellant submitted that the lower court was also wrong in excluding the said evidence as inadmissible as a dying declaration. The appellant contended that the only ground upon which the lower court predicated its decision that the said evidence was inadmissible as a dying declaration was that there was no proof that the deceased declarant believed herself to be in the danger of approaching death at the time of making the declaration. The appellant contended that the common law doctrine of dying declaration has been codified in Section 33(1)(a) of the Evidence Act, and listed the conditions of admissibility of declarations made under the said Section. In support, reference was made to Hausa v. State (1994) 6 NWLR (Pt.350) 281 at 289 paragraphs 11 – 12, Akpan v. State (1992) 6 NWLR (Pt.248) 439 at 469, Akinfe v. State (1988) 3 NWLR (Pt.85) 729, at 746.

The appellant argued that in most cases dying declaration was held admissible against the accused, but it is also admissible in favour of the accused as it is not foreclosed by Section 33(1)(a) of the Evidence Act. In support reference was made to R. v. Scalfe (1836) 1M & Rob. 51, Archbold Criminal Pleading, Evidence and Practice, 1999 edition pages 1170 – 1171 paragraphs 11 – 28, Phipson on Evidence 12th edition, page 1002 paragraph 1001 and the case of Jadesimi v. Egbe (2003) 10 NWLR (Pt.827) 1 at 25. The appellant submitted that the lower court was wrong in holding that there was no proof that the deceased believed herself to be in danger of approaching death. The appellant made reference to the evidence of PW6 and PW8 to the effect that from presentation the deceased stood no chance of survival as her burn injuries covered more than 50 percent of the total body area. The appellant argued that it is not the requirement of Section 33(1)(a) of the Evidence Act that there must be an express declaration by the deceased that he believed himself to be in danger of approaching death as the belief can be implied from the circumstances of the case. In support, reference was made to Okokor v. State (1967) NMLR 189 at 191, Chewmoh v. State (1986) 2 NWLR (Pt.22) 331 at 338 – 339 and Okoro v. State (2012) 4 NWLR (Pt.1290) 351 at 396. The appellant urged the court to hold that the lower court was wrong in holding that the evidence was inadmissible as dying declaration.
It was further submitted on behalf of the appellant, that even where the evidence was not admissible as dying declaration it ought to have been admitted as forming part of the res gestae. On the definition of res getae, reference was made to Phipson on Evidence, 12th edition page 63. The appellant argued that where a fact becomes relevant to a fact in issue because it throws light on it by its proximity to it in point of time place and circumstance the first mentioned fact is said to form part of the res gestae. The appellant contended that a statement by the appellant as to how she suffered the burn injuries is admissible as forming part of the res gestae. In support reference was made to Okoko v. State (1967) NMLR 189 at 192, Otti v. State (1991) 8 NWLR (pt.207) 103 at 119. The appellant contended that the lower court was wrong in excluding the evidence, as it can be admitted as forming part of the res gestae. The appellant contended that the lower court was also wrong in expunging part of the evidence of pw2 as to what the deceased told him of how she sustained the burn injuries. The appellant stated that PW2, the investigating police officer gave evidence to the effect that the deceased told him she sustained injuries from a generator accident. The appellant argued that the evidence of pw2 as to what the deceased told him constitutes direct evidence, which is admissible in Law. In support, reference was made to the following cases: Oladejo v. State (1994) 6 NWLR (Pt.348) 101, R. v. Itule (1961) All NLR 162 at 462, Ibina v. State (1989) 5 NWLR (Pt.120) 238 at 248. The appellant argued that the lower court was wrong in excluding part of the evidence of PW2.

The respondent in reply stated that it is settled law, that cases are decided only on valid legally admissible evidence. Hence it was contended that where inadmissible evidence has been admitted in evidence, it is the duty of the trial court to expunge same in the course of its judgment or it can be expunged by an appellate court. In support, reference was made to Nnubia v. A. G. Rivers State (1993) 3 NWLR (Pt.593) 82 at 105 – 106. The respondent argued that the duty to expunge wrongly admitted evidence does not amount to raising an issue suo motu and the judge is not obliged to invite parties to address him before expunging such evidence. It was the contention of the respondent that all cases cited by the appellant on raising an issue suo motu are inapplicable to the instant case and should be discountenanced.
It was submitted on behalf of the respondent that while evaluating evidence, the trial court found the expunged Exhibits to be contradictory. The respondent posited that while Exhibits P1 and P4 stated that the appellant had no hand in the cause of her death, Exhibit P9 is to the effect that the appellant caused fuel to be poured on the deceased and other victims and he lit a match and threw it at her and other victims resulting in the burn injuries. The respondent contended that the trial court was right in declaring that the statements in Exhibits P1, P4 and P9 cannot amount to dying declaration. In support, reference was made to Hausa v. State (1994) 6 NWLR (Pt.350) 281, Peter v. State (1994) 6 NWLR (Pt.350) 281, Peter v. State (1994) 5 NWLR (Pt.342) 45.

On res gestae, the respondent stated that the doctrine is applicable in Nigeria by virtue of Section 5(a) of the Evidence Act and that Section 7 of the Act covers a wider scope. The respondent however argued that for the doctrine to apply, the statement must have been spontaneous and contemporaneous with the occurrence of the attack or incident. In the instant case the respondent posited that the incident occurred on the night of 22nd July, 2006 and victims rushed to the hospital in the presence of witnesses. The respondent contended that Exhibits P1, P4 and P9 were made on 24th and 25th July, 2006 respectively, hence not made spontaneously and contemporaneously with the attack on the victims and more so only Exhibit P9 was corroborated by independent witnesses and real evidence. The respondent contended that the statements in the Exhibits cannot be covered by the doctrine of res gestae hence the lower court was right in expunging them.
The respondent submitted that assuming without conceding that Exhibits P1 and P4 were wrongly expunged, the lower court would still have arrived at the same decision having regard to other available oral and real evidence. The respondent argued that the wrongful exclusion of evidence shall not by itself be a ground for the reversal of a decision and reliance was placed on Section 226(2) of the Evidence Act. In further support, reference was made to the following cases: Obidioze v. State (1987) 12 SC 74 at 103, Akpanu v. State (1994) 9 NWLR (Pt.368) 347 at 361. It was contended with respect to the oral testimonies of PW2, PW5 and PW7, that it is the duty of the trial court to give probative value to the evidence before it and that was correctly done by the lower court. The respondent stated that the trial judge rightly relied on the case of Obiode & Ors. v. State (1970) All NLR 36, to the effect that a court could under certain circumstances accept part of the testimony of a witness and reject the rest. The respondent urged the court to resolve the issues in their favour.

In a short reply, the appellant submitted that the admissibility or otherwise of any piece of evidence oral or documentary on ground of noncompliance with the Evidence Act is an issue of Law. Hence, where such an issue is raised suo motu, addresses of parties must be taken before the issue is determined. In support, reference was made to the following cases: Alli v. Alesinloye (2000) 6 NWLR (Pt.660) 177 at 214 – 215, Ayorinde v. Ayorinde (2011) 17 WRN 74 at 83 – 89. The appellant urged the court to reject the submission of the respondent to the effect that the lower court is not bound to invite addresses before expunging the evidence. On Section 227(2) of the Evidence Act, the appellant contended that it is inapplicable to this case, as no one could predict the effect of the excluded evidence could have had on the lower court if it had not been excluded. In support, reference was made to: State v. Ogbubunjo (2001) 2 NWLR (Pt.697) 581 at 699, Adisa v. A.G. Western Nigeria (1965) 4 NSCC 334, Chief Igbdin & Ors. v. Chief Obianke & Ors (1976) 10 NSSC 467, Elias v. Disu (1962) All NLR 214.

It is trite law that where a court raises an issue of law suo motu, parties must be invited to address the court on the new point raised by the court. The first complaint of the appellant under these issues, is that the lower court raised the issue as to the admissibility of Exhibits P1, P4 and P9 (statements made by the deceased while on admission in the hospital to PW2 the police investigator) and part of the testimony of PW2, PW5 and PW7 relating to what the deceased told them while on admission. The appellant contended that the lower court raised an issue as to their admissibility and expunged same without affording them a hearing by way of addresses.

I have painstakingly and meticulously studied the judgment of the lower court several times. The issue in contention was considered on page 851 of the record. The lower court in the course of reviewing and evaluating evidence, stated that the contents of Exhibits P1, P4, P9 and what the deceased told PW2, PW5 and PW7 while on admission in the hospital do not constitute dying declaration as they were not made by the deceased believing herself to be in the danger of approaching death. The lower court therefore refused according any weight to the said Exhibits and part of the testimony of PW2, PW5 and PW7 as it relates to what the deceased told them, on the ground that they do not qualify either as dying declarations or res gestae. Consequent upon the foregoing the lower court discountenanced the statements credited to the deceased in the following words:
“…I shall therefore discountenance the purported statements credited to the deceased as contained in Exhibits P1, P4 and P9 and in the oral testimonies of PW5 and PW7. This however does not affect the other aspect of the testimonies of those witnesses which I have accepted as a court can under certain circumstances accept part of the testimony of witnesses and reject the rest. See Obiode & Ors. v. State (1970) All NLR 36.”
(see lines 26 – 30 of page 851 of the record).

My simple understanding of what the lower court did, is not raising a new issue as to the admissibility of Exhibits P1, P4, P9 and part of the oral testimony of PW2, PW5 and PW7. The Exhibits had already been admitted in evidence. All that the court said in the course of evaluating evidence was that the statement credited to the deceased in those Exhibits and part of the oral testimony of PW2, PW5 and PW7 do not qualify as dying declarations or res gestae, hence the court discountenanced same. By discountenancing the said evidence, it means not according any weight to them. The lower court however did not at any point in time state that it had expunged the said evidence. Indeed if discountenancing the said evidence has been construed to mean expunging same, then that must be an error and it is not every error that results in setting aside a judgment except where the error has occasioned a miscarriage of justice. See Onamade & Anor v. African Continental Bank Ltd. (1997) 1 NWLR (Pt.480) 123, Onajobi v. Olanipekun (1885) 4 SC (pt.2) 156, Ike v. Ugboaja (1993) 6 NWLR (Pt.301) 539, Chiekweilo v. Nwali (1998) 8 NWLR (Pt.560) 114 at 124.

The appellant further contended that the lower court was wrong in not regarding the evidence as dying declaration, simply because the deceased did not believe herself to be in the danger of approaching death. The appellant argued that danger of approaching death can be inferred from surrounding circumstances and reference was made to the evidence of PW6 and PW8 to the effect that the burn injuries of the deceased covered more than 50% of the body area, hence she stood no chance of survival. The common law doctrine of dying declaration has been codified in Section 33(1)(a) of the Evidence Act which provides thus:
“33(1) Statements written or verbal, or relevant facts made by a person who is dead are themselves relevant facts in the following cases:
(a) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question; such statements are relevant only in trials for murder or manslaughter of the deceased person and only when such person at the time of making such declaration believed himself to be in danger of approaching death: although he may have entertained at the time of making it hopes of recovery.”
(parenthesis and underlining mine).
The rationale for the above rule was stated in 1789 by Eyre C. B. In R. v. Woodcock (1789) 1 Leach 500 at 502, as follows:
“The general principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the party is at the point of death and when every hope of this worth is gone: when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.”
It is very clear from the provisions of Section 33(1)(a) of the Evidence Act, for a statement to qualify as dying declaration, the person making the statement must believe himself to be in danger of approaching death. The belief in the danger of approaching death is subjective not objective. The person making the declaration must believe himself to be in danger of approaching death, as nobody would wish to die with a lie on his lips. The danger of approaching death cannot be inferred from surrounding circumstances or the opinion of third parties. See Okoro v. State (2012) 4 NWLR (Pt.1290) 351 at 372, Akpan v. State (1992) 6 NWLR (Pt.248) 439 at 469, Hausa v. State (1994) 6 NWLR (Pt.350) 281 at 289, R. v. Ogbuewu (1949) 12 WACA 483, Akpan v. State (1967) NMLR 185. The contention of the appellant that danger of approaching death can be garnered and inferred from surrounding circumstances or evidence of PW6 and PW8 is not correct and is hereby discountenanced. The statements made by the deceased not believing herself to be in the fear of approaching death cannot qualify as dying declaration. The statements will also not qualify as res gestae as they were made on 24th and 25th July, 2006 not contemporaneously with the occurrence of the unfortunate incident. The issues herein are herbey resolved against the appellant.

Issue 3

This issue challenges the decision of the trial judge in dismissing the defence of alibi raised by the appellant. It is covered by issue 10 of the appellant’s issues. The appellant submitted that it is well settled law that the defence of alibi if successfully raised by an accused is a complete defence. The appellant contended that by the said defence the accused was somewhere else not at the scene of the crime and once the defence is raised it is not the responsibility of the accused to prove same. The appellant argued that once the defence of alibi is raised, it is incumbent on the prosecution to investigate and rebut same. It was contended that the appellant in his statement made on 24th July, 2006 and his evidence as DW9, he stated that he was in his room and that it was only when he heard the shouts that he came out of his room to see the victim on fire in his house.

The appellant also made reference to the evidence of DW1, to the effect that she was in the appellant’s parlour and she saw the appellant coming out of his room. It was argued on behalf of the appellant that the lower court was wrong in holding that the appellant did not timeously raised the said defence as it was contained in the appellant’s statement to the police. Appellant urged that the issue be resolved in his favour. In support, reference was made to the following cases: Hause v. State (1994) 6 NWLR (Pt.350) 281 at 285 – 286, Dogo v. State (2001) 9 WRN 70 at 89, Dagaya v. The State (2006) 2 FWLR (Pt.310) 2301 at 2336 – 2336, Fatoyinbo v. A.G.W.N. (1966) WNLR 4 at 6 – 7.
In response, it was contended that the Apex Court had made some qualifications to reliance on the defence of alibi as follows:
(i) It must be raised at the earliest opportunity not in court.
(ii) The accused must give the police exact address of where he was and the people with whom he was on the day in question.
(iii) The police must investigate the alibi and where it is not done, accused can be discharged.
(iv) If the prosecution is able to pin the suspect to the scene of crime his alibi will be disregarded.

The respondent contended that where an accused can be pinned to the scene of crime, it is immaterial whether or not the alibi is investigated. In support, reference was made to the following cases: Sowemimo v. State (2004) 11 NWLR (Pt.885) 515 at 526, Balogun v. A.G. Ogun State (2002) 6 NWLR (Pt.763) 515 at 535 – 536.
The respondent submitted that where the prosecution is able to lead cogent and unassailable evidence that the accused was at the scene of crime at that material time as in the instant case or that he committed the offence, the defence of alibi will fail. The respondent argued that in the light of the available evidence, the trial court rightly disregarded the defence of alibi. In support, reference was made to Ozaki v. State (1990) 92 1 NWLR (Pt.124). It was urged that the issue be resolved in favour of the respondent.

The defence of alibi connotes that the accused is elsewhere. The etymology of the word ‘Alibi’ originates from latin. It stems from a combination of two words “ALIUS” and “IBI” or “UBI” meaning “other” and “There” or “where”, put together in English usage, it means “elsewhere”. The import of the defence of alibi and what it entails is to the effect that the accused person was somewhere other than where the prosecution alleges he was at the time of the commission of the offence, making it impossible for him to have committed or participated in the commission of the offence with which he was charged.

Once alibi is properly raised by an accused, it is the duty of the prosecution to investigate and disprove it.

In the instant case, the offences for which the appellant was convicted were committed within the premises of his house. The alibi raised by the appellant was to the effect that he was in his bedroom, until when he heard the shouts of fire, then he came out of the room to the courtyard where he saw the victims. In the statement in which the accused raised the defence of alibi, i.e. Exhibit ‘P2’ no mention was made of anybody’s name either DW1 who claimed to be in the appellants parlour scrubbing or that of DW6. This would have afforded the police the necessary particulars to investigate the alibi at the earliest opportunity. Furthermore, the evidence of the prosecution witnesses pinned down the appellant to the locus crimines or scene of crime. The evidence of the eye witnesses and victims of the crime committed by the appellant gave a graphic account of how the accused now appellant directed PW4 to pour petrol on the victims (namely PW1, PW3, PW9, PW10 and PW11) including the deceased, thereafter the accused struck a match and threw it on them. It is trite law, that where the evidence of witnesses located the accused to the scene of crime the defence of Alibi is logically and physically demolished. See Sowemimo v. State (2004) 11 NWLR (Pt.885) 515, Danlami Ozaki & Anor v. The State (1990) 1 NWLR (Pt.124) 92, Ogoala v. State (supra). Consequent upon the foregoing, this issue fails and is hereby resolved against the appellant in favour of the respondent.

Issue 4

The appellant contended that the learned trial judge relied on the evidence of PW1 in finding the appellant guilty as charged, and also held that PW1 not being an accomplice her evidence did not require corroboration. The appellant submitted that there is evidence on the record that PW1 had allegedly been beaten on the orders of the appellant and she deliberately lied in order to avoid being punished by the appellant for alleged fornication with some members of the church. Based on the foregoing, it was argued by the appellant that PW1 ought to have been regarded as a witness with a purpose of her own to serve and the learned trial judge ought to have warned himself of the danger of relying on the evidence of PW1 without corroboration. The appellant urged the court to hold that the lower court was wrong in holding that PW1 is not a tainted witness, whose evidence requires corroboration, and the failure to warn itself of the danger in relying on the evidence without corroboration. In support, reference was made to the following cases: Okolo & Ors. v. The State (1974) 2 SC 60 at 68, Agwu v. State (1998) 4 NWLR (Pt.544) 90 at 102 at 68, Agbanyi v. State (1995) 1 NWLR (Pt.369) 1 at 20 – 21, Orisakwe v. State (2004) 12 NWLR (Pt.887) 258 at 288 and 291.
In response, it was contended that PW1 was a victim of the crime and that does not make her a tainted witness, hence her evidence does not require corroboration. It was submitted that the evidence of a witness does not become inadmissible merely because he has a relationship with the deceased or the victim of crime, but rather such evidence should be treated with caution. In support, reference was made to Nwaogu v. State (1992) 7 NWLR (Pt.254) 429. The respondent argued that PW1 was an eye witness to the crime committed by the Appellant, hence her evidence is admissible and it is unnecessary to administer any warning for relying on her evidence. In support, reference was made to R. v. Ukut (1960) 5 FSC 183. It was also submitted that where the evidence of a witness is direct, the mere fact that the witness is the defendant’s enemy will not render his evidence unreliable. In support reference was made to Oteki v. A.G. Bendel State (1986) 2 NWLR (Pt.24) 648. It was further argued that assuming without conceding that PW1 was a tainted witness, the requirement that the trial judge should warn himself is one dictated by prudence not by law and failure to do so will not necessarily vitiate the conviction. In support reference was made to Mbenu v. State (1988) 3 NWLR (Pt.84) 615. The court was urged to resolve the issue against the appellant.

In the consideration of this issue, a good starting point will be from the definition of the term “tainted witness”.
A tainted witness may be defined as a witness who may not in the strict sense be an accomplice but who in giving his evidence is established to have some purpose of his own to serve and in respect of whom it is desirable that the warning as to corroboration be given. See David Omotola v. The State (2009) 7 NWLR (Pt.1139) 149, Moses v. State (2006) 16 NWLR (Pt.987) 173. PW1 was an eye witness and a victim to the crime committed by the appellant. The fact that she is an eye witness her evidence is admissible without the necessity of administering any special warning See R. v. Ukut (1960) 5 FSC 183. PW1 is an active member of the appellants church, and had ugly encounters with the appellant in the past. The encounters of PW1 and the appellant is insufficient to discredit her evidence against the appellant. See Oteki v. A. G. Bendel State (1986) 2 NWLR (Pt.24) 648.
My lord, Tobi, JCA (as he then was) in Udo v. Eshiet (1994) 8 NWLR (Pt.363) 483 at 502, sounded an advise on labelling a witness as a tainted witness. The law lord stated thus on page 502:
“A court of Law must be reluctant in disbelieving a witness on the ground that he is a tainted witness, because the expression is not only fluid but large and bogus… can it be the law that a wife who gives evidence in favour of the husband should be branded a tainted witness without more? In criminal law, a wife is a competent witness for the husband. The Evidence Act does not brand a wife as a tainted witness for all times and at all times without more.”
See also Ojo v. Gharoro (2006) 10 NWLR (Pt.987) 173. In David Omotola & Ors. v. State (2009) 3 SCM 127 at 147 – 148, my noble lord, Oguntade, JSC had this to say:
“Every citizen has the duty to come forward and offer assistance in the diligent detection and prosecution of crime. Their blood relationship with the victim of crime may constitute an additional incentive to come forward to testify in a court case. But that in my view cannot be regarded as a basis to describe their evidence as untrue, biased or tainted.”
PW1 being an eye witness and a victim of the crime is not a tainted witness, she is a competent witness and her evidence does not require corroboration. This issue also fails and is resolved against the appellant.

ISSUE 5

The appellant contended that the trial court was wrong to have held that the evidence of PW3 and PW4 were corroborated by the evidence of PW1, PW8, PW9 and PW10. The appellant submitted it nut corroboration is a confirmation in some material particular that not only was an offence committed but it was committed by the accused. In support, reference was made to the following cases: Nwankoala v. State (2005) 12 NWLR (Pt.940) 637 at 679, Dagaya v. State (2006) 1 SC (PT.11) 1 at 18. On the evidence of PW1, the appellant argued that a piece of evidence which requires corroboration cannot provide corroborative evidence to another evidence that requires corroboration. The appellant further argued that the evidence of PW9 and PW10 does not contain corroborative quality as their evidence is not credible. The appellant also submitted that the lower court was wrong in relying on the evidence of PW4, who admitted to telling lies in the past under the directive of the appellant. In support, reference was made to the following cases: Agbi v. Ogbeh (2005) 8. NWLR (Pt.926) 40 at 138, Yusuf v. Obasanjo (2005) 18 NWLR (Pt.956) 96 at 167, Dogo v. State (2001) 3 NWLR (Pt.699) 192 at 211.

In response, it was submitted that the lower court was right when it held that the evidence of PW1, PW9 and PW10 requires no corroboration and that it sufficiently corroborated the evidence of PW3 and PW4. The respondent contended that it is the duty of the trial court to evaluate evidence, hence urged the court to discountenance the submissions of the appellant on this issue. In support, reference was made to the case of Mbele v. State (1990) 4 NWLR (Pt.145) 484. On the evidence of PW4, the respondent submitted that the trial court having seen the witness and watched her demeanour, the trial court rightly concluded that she was telling the truth but her evidence would require corroboration which was found in the evidence of PW1, PW9 and PW10. The respondent contended that the evidence of PW1, PW9 and PW10 is credible and requires no corroboration. The respondent posited that where a witness gives reasons or explanations as to inconsistencies in his earlier statement and his evidence in court, his explanation is sufficient for the trial court not to treat such a witness unreliable. In support, reference was made to Asuquo Willimas v. State (1975) 9 SC 1, Audu v. State (2003) 7 NWLR (Pt.820) 516. The respondent maintained that the lower court was right in giving credence to the evidence of PW4 based on the aforementioned cases.

The grouse of the appellant under this issue is that the lower court was wrong in holding that the evidence of PW3 and PW4 had been corroborated. The appellant argued that the evidence of PW9 and PW10 is not credible, while that of pw1 needs corroboration hence it cannot corroborate any other evidence. PW1, PW9 and PW10, were eye witnesses and victims of the crime committed by the appellant. In their testimony, they gave an account of what transpired on the date the crimes were committed and how the accused committed the said offences.
It has to be reiterated at this point, that it is trite that evaluation of evidence is the primary responsibility of the trial court. See Solola v. State (2005) 2 NWLR (Pt.937) 460. In the instant case, the trial court found the evidence of PW1, PW9 and PW10 as credible, relied on same and used same to corroborate the evidence of PW3 and PW4. I do not see anything wrong in that. On the evidence of PW4, the learned trial judge properly evaluated her evidence on pages 831 to 832 and came to the conclusion that she was telling the truth but nonetheless her evidence needed corroboration. The said corroboration was found in the evidence of PW1, PW9 and PW10. I am also in agreement with the position of the lower court. This issue also fails and is resolved against the appellant.

Issue 6

It was submitted by the appellant that in deciding a case before it a court is bound to give consideration to all the evidence presented before it, be it oral or documentary. The appellant argued that where a consideration is not given to the evidence, the court is said to have committed an error. In support reference was made to Shell Development Company Ltd. v. Ofoko (1990) 6 NWLR (PT.159) 693 at 707, Nwaezema v. Nwaiyede (1990) 3 NWLR (Pt.157) 230. It was also contended that a trial court must not impair the evidence before it by inadequate evaluation. In support, reference was made to Adeleke v. Iyanda (2001) 13 NWLR (Pt.729) 1, Awudu v. Daniel (2005) 2 NWLR (Pt.109) 199 at 727, Millar v. State (1997) 1 SCNQR 100 at 189.
It was further contended that where a trial court fails to evaluate the evidence an appellate court can interefere. In support, reference was made to Udediba v. State (2007) 27 NSCQR 743 at 767 – 768. In the instant case, the appellant argued that the trial court did not evaluate the totality of the evidence, before coming to the conclusion that the appellant committed the offence. The appellant stated that Exhibit P3 tendered by PW4 to the effect that the accused was not at the scene and evidence of DW6 that the deceased stepped on burning tracts after the generator accident were not considered by the court.

In response it was contended that evaluation of evidence is the mandatory duty of the trial court and factors to be considered in evaluating evidence were also listed. In support, reference was made to Adekunle v. Aremu (1998) 1 NWLR (Pt.533) 203 at 229. It was submitted that the trial court, rightly evaluated the evidence before it and the conviction of the appellant flowed from the evidence adduced. It was argued that the defences raised, namely general denial and alibi were considered and dismissed because the prosecution’s evidence pinned down the accused to the scene of crime and role he played in committing the crime. It was further argued that the contention that most of the prosecution witnesses are victims of crime and their evidence require corroboration is misconceived and has no basis in law. In support reference was made to IORTIM v. State (1997) 2 NWLR (Pt.490) 711, Akalonu v. State (2000) 2 NWLR (Pt.643) 165. It was further submitted that once a trial court has done a proper evaluation as in the instant case an appellate court cannot interfere save where the decision is perverse. In support reference was made to Akinbisade v. State (2006) 17 NWLR (Pt.1007) 184 at 193, Gboko v. State (2007) 17 NWLR (Pt.1063) 272 at 305.

It is trite law, that evaluation of evidence and the ascription of probative value is the primary duty of trial court, which must have seen, heard the witnesses and observed their demeanour. Once this is properly done, an appellate court cannot interfere. The appellant contended that the lower court failed to evaluate the evidence of DW6 and Exhibit P3, which would have raised reasonable doubt in favour of the accused. The lower court made a proper evaluation of the evidence adduced by both the prosecution and the defence. The prosecution witnesses were eyewitnesses and victims of the crime. They testified giving a graphic account of what transpired and how the accused directed PW4 to pour petrol on the victims and he struck a match and threw same on them, resulting in the burns sustained by the victims and eventual death of the deceased. The evidence of DW6 was properly considered and evaluated on pages 838 to 841 of the record. The contention that the lower court did not evaluate all the evidence before it is of no moment and substance. Having properly evaluated the evidence, this court has no business interfering.

The appellant further contended that the way the judgment of the trial court was written had prejudiced the appellant as his case was not fairly considered by the lower court. Elaborating further on this point the appellant posited that the evidence of the prosecution was considered first before that of the defence, hence infringing on the principle of fair hearing. In support, reference was made to the following cases: Uchendu v. Ogboni (1999) 4 SCNJ 64 SCNJ 64 at 91, Stephen v. State (1986) 2 NSCC Vol.17 Pt.2 page 1416 at 1435 – 1436, Duru v. Nwosu (1989) 7 SC (Pt.1) 1 at 11.
In response, it was contended that the judgment of the trial court is in consonance with the spirit of judgment writing as stated in Stephen v. State (1986) 2 NSCC Vol.17 (Pt.2) 1416 at 1435 – 1436. It was submitted that the trial court assessed the evidence and reached a finding on the issues raised by both parties, hence complied with the requirement of a sound judgment and there was no infringement on the rights of the appellant. In support, reference was made to Kara v. Wassah (2001) 18 NWLR (Pt.744) 117 at 135 – 136, Ogidi v. State (2005) 5 NWLR (Pt.918) 2 286 at 304, Awopejo v. State (2001) 18 NWLR (Pt.745) 430 at 442.

By way of prologue and preamble, it must be stated that judgment writing is an art and each judge is entitled to and free to follow his own style in achieving the end result. There are however certain essential components which a good judgment must incorporate, namely, set out the nature of the case/action before the court; the issues in controversy; a review of the case for the parties; a consideration of the relevant law raised and applicable to the case; specific findings of fact and conclusions. The reasons for arriving at the conclusion must also be stated. The most essential thing however, is that a judge should show a clear understanding of the facts and issues raised in the case, the law applicable, and from all these he should be able to arrive at a conclusion. See Onuoha v. State (1988) 2 SC (Pt.11) 115, Ogolo v. Ogolo (2003) 18 NWLR (Pt.852) 494. Some judges adopt the approach of setting out the evidence of both parties one after the other before evaluating them, while others set out the evidence at the same time to evaluate them. Once there is proper evaluation of evidence and proper application of the law, the style adopted is not important.
In the instant case, the lower court considered the offences charged in the case, the evidence led and evaluated same before applying the relevant law and coming to a conclusion. Essentially all evidence adduced had been considered and evaluated. The complaint of the appellant in the instant case is that the court considered the prosecution witnesses before considering the defence witnesses. The Apex Court, per Uthman Mohammed, JSC in Awopejo v. State (2001) 18 NWLR (Pt.745) 430 at 442 stated thus:
“Whichever style a judge is used to or adopts, the essential thing is that he considers all the evidence before him by evaluation before arriving at his conclusion which is the finding. The mere fact that he first evaluated the evidence of the prosecution before adverting to that of the defence is not evidence of bias or wrong evaluation.”
Consequent upon the foregoing, the mode and style adopted by the trial court in writing the judgment was not in any way prejudicial to the rights of the appellant. This issue is also resolved against the appellant.

Issue 7

It was submitted by the Appellant that the prosecution owes a duty to prove the guilt of the accused beyond reasonable doubt. It was further submitted that a failure to prove any ingredient of the offence, amounts to a failure on the part of the prosecution to prove the offence beyond reasonable doubt. In support, reference was made to the following cases:
Alabi v. State (1993) 7 NWLR (Pt.307) 511 at 522 – 523, Okeke v. State (1995) 5 NWLR (Pt.392) 676 at 707, Shande v. State (2005) 1 NWLR (Pt.907) 218 at 239, Ibrahim v. State (1995) 3 NWLR (Pt.318) 35 at 47, Nsofor v. State (2004) 18 NWLR (Pt.905) 292 at 310 -311. The appellant argued that if at the end of the trial a court is in doubt as to the guilt of the accused, the doubt must be resolved in favour of the accused. In support, reference was made to the following cases: Obiade v. State (1970) 1 All NLR 35, Onafowokan v. State (1997) 3 NWLR (Pt.61) 531, State v. Danjuma (1997) 5 NWLR (Pt.506) 512 at 516, Arueye v. State (1967) NMLR 209.
The appellant stated that in a case of murder, the prosecution must establish that:
(a) The deceased died.
(b) The death of the deceased resulted from the act of the accused person.
(c) The killing was unlawful.
(d) The act of the accused was intentional with the knowledge that death or grievous bodily harm is the probable consequence.

In the instant case, the appellant posited that the prosecution failed to establish the above listed ingredients for the offence of murder. It was submitted that there was no positive and compelling proof that the appellant directed that fuel be poured on the alleged victims to which he lit a match and threw it at them while they were kneeling down in front of the appellant begging him.
It was submitted that the evidence of the prosecution as to what the appellant did was of contradictory and inconsistent nature, which ought to cast doubt on the prosecution’s case. Elaborating on the contradictions, the appellant submitted that while PW1 and PW9 never mentioned any lighter but fuel and matches, PW3, PW10 and PW11 said the appellant called for matches after the lighter has failed. It was further submitted that the contradictions with regard to the alleged use of lighter and matches by the appellant and whether fuel was poured once or twice are material to the case.
Secondly, it was also contended that the prosecution did not establish that it was the unlawful act of the appellant that caused the death of the deceased, Ann Uzoh. The appellant asserted that the deceased did not die on 22nd July, 2006 but on 2nd August, 2006 a period of about twelve days after the incident. Reference was made to the evidence of PW8 to the effect that the deceased died of overwhelming infection as a result of burns and that she was on drip and had sufficient fluid in her body. Reference was also made to the evidence of PW6, to the effect that the deceased died of what he described as hypovolaemic shock due to loss of body fluid from severe burn injuries. It was contended that the prosecution did not adduce evidence to exclude supervening circumstances as responsible for the death of the deceased. In the circumstance, it was argued that it is impossible to infer that the alleged appellant’s act was the cause of death. In support, reference was made to Uguru v. State (2002) 9 NWLR (Pt.771) 90. As for the attempted murder, the same submissions were adopted and that there was no evidence that the appellant directed fuel be poured on the victims to which he threw a lighted match on them. The appellant urged the court to hold that the prosecution had not established a case of murder and attempted murder against the appellant.

In response it was submitted that the onus on the prosecution is proof beyond reasonable doubt and that does not mean proof of a scientific certainty. In support, reference was made to State v. Azeez (supra); Audu v. State (2003) 7 NWLR (Pt.820) 516 at 554. The respondent asserted that in proof of its case, it called twelve witnesses and some of the witnesses gave an eye witness account of the incident that occurred on 22nd July, 2006 at No.6B Canal View Close, Ajao Estate Lagos. The respondent stated that PW1 Vivian Ezeocha, PW3 Olisa Chiejina, PW4 Kelechi Chikere, PW9 Chizoba Onuorah, PW10 Kosisochukwu and PW11 Jessica Nwene gave an eye witness account of the pouring of petrol and the burning of the deceased and other victims by the appellant. It was also contended that their testimonies were not discredited under cross examination. The respondent contended that the ingredients for the offences of attempted murder and murder were established by the evidence of the aforementioned witnesses with the Exhibits tendered. In support, reference was made to Jegede v. State (2001) 14 NWLR (Pt.733) 264 at 275 -276, Nwankwo v. FRN (2003) 4 NWLR (Pt.809) 5, at 64.

The respondent contended that the prosecution was able to establish the following by evidence in respect of the 6th count, namely:
(a) That one Ann Uzoh alias Ann Uzoh King (deceased) died.
(b) That the death of the deceased was caused by the unlawful act of the appellant; and
(c) That the act of the appellant which caused the death of the deceased was intentional with the knowledge that death was the probable consequence of the act.

It was submitted that PW5 (father of the deceased) and PW7 (biological brother of the deceased) gave evidence as to the death of the deceased. PW7 gave evidence of how PW8 (Doctor at Faith City Hospital) confirmed the death of the deceased. It was further submitted that the evidence of PW1, PW3, PW4, PW9, PW10 AND PW11, established the role of the appellant in causing the death of the deceased and injuries sustained by some of them as victims. Reference was also made to Exhibits P5, P5a, P18, P18a, P19 and P19a, the negative and positive exposures of the pictures of the deceased while in hospital and after her death. The respondent submitted that based on the evidence of PW1, PW3, PW4, PW9, PW10 and PW11, the appellant acted intentionally and a man is presumed to intend the natural consequences of his acts. In support, reference was made to Audu v. State (2003) 7 NWLR (Pt.820) 516, Mallam Zakari Ahmed v. State (1999) 7 NWLR (Pt.612) 64. In concluding, the respondent posited that the prosecution had proved the ingredients of all the offences against the appellant beyond reasonable doubt.

The presumption of innocence which is an essential foundation in our adversary adjudicatory system has a secured place in our criminal jurisprudence, which is Constitutionally guaranteed. Section 36(5) of the 1999 Constitution (as amended) provides thus:
“Every person charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”
By the aforementioned provision, the Constitution clearly places the burden of establishing the guilt of an accused person on the prosecution. The standard of proof is of course proof beyond reasonable doubt. See Section 135(1) of the Evidence Act which provides thus:
“If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”
See the cases of Woolington v. DPP (1935) AC 462, Bakare v. State (1987) 3 SC 1, Okoro v. State (2010) 16 NWLR (Pt.1220) 584, Agbiti v. Nigerian Navy (2011) LPELR 2944, Oduneye v. State (2001) 2 NWLR (Pt.697) 311, Dibie v. State (2007) 9 NWLR (Pt.1038) 30, Oteki v. A.G. Bendel State (1986) 2 NWLR (Pt.24) 648, Emeka v. State (2001) FWLR (Pt.66) 682. The prosecution therefore owes a duty to prove every ingredient of the offence charged as provided for in the substantive law beyond reasonable doubt. Where the standard of proof is not attained, any fingering doubt will be resolved in favour of the accused. See Onafowokan v. State (1987) 3 NWLR (Pt.61) 531, State v. Danjuma (1997) 5 NWLR (Pt.809) 1 at 35 – 36, Abdullahi v. State (2008) ALL FWLR (Pt.432) 1047.

The appellant contended that the prosecution failed to prove the essential ingredients of the offences, on two grounds namely:
(i) That the evidence led by the prosecution as to what the appellant did was of contradictory and inconsistent nature which ought to cast doubt in the prosecution’s case and
(ii) That the prosecution did not adduce evidence to exclude supervening circumstances as responsible for the death of Ann Uzoh King, hence it is impossible to infer that the alleged appellant’s act was the cause of her death.
I will start by a consideration of the first ground relating to contradiction and inconsistency in the evidence, thereafter consider the evidence adduced by the prosecution and then revisit the second ground as to whether it was the act of the accused that caused the death.
On the issue of contradiction and inconsistency in the evidence of the prosecution as to what the appellant did, the major one hammered and concentrated upon by the appellant is the one relating to pouring of fuel, use of matches and lighter. The appellant submitted that while PW1 and PW9, never mentioned any lighter but fuel and matches, PW3, PW10 and PW11 said the appellant called for matches after the lighter had failed. Furthermore the appellant contended that some witnesses said that fuel was poured on the victims twice before setting them ablaze while others said fuel was poured only once. Based on the foregoing, the appellant argued that the contradiction and inconsistency is material and ought to cast doubt on the case of the prosecution.

The law is settled that it is not every contradiction in the prosecution’s case that will raise a doubt, the benefit of which ought to be resolved in favour of the accused. It is only contradictions that are substantial and fundamental to the main issue in question that would be fatal to the prosecution’s case. For a contradiction to be material it must not only relate to a material fact it must in addition lead to a miscarriage of justice. See Dibie v. State (2009) 9 NWLR (Pt.1038) 30, Ikemson v. State (1989) 2 NSCC (Vol.20) 471, Onubogu v. State (1974) 9 SC 1 at 20, Nasamu v. State (1979) 6-9 SC 153, Kalu v. State (1988) 4 NWLR (Pt.90) 503 at 524, Sele v. State (1993) 1 NWLR (Pt.269) 276, John Agbo v. State (2006) 1 SC (Pt.4) 73, Ogoala v. State (1991) 2 NWLR (Pt.175) 509, Ekanem v. Queen (1960) SCNLR 42, Odunoye v. State (2001) 2 NWLR (Pt.697) 311.
The cumulative effect of the foregoing, is that for a contradiction to be fatal to the prosecution’s case, it must be material.
What then is the effect of the contradiction if any, complained of by the appellant in the instant case? I will digress a bit by way of introduction to examine the import or meaning of contradiction as analysed by the Apex Court in Ayo Gabriel v. The State (1989) 5 NWLR (Pt.122) 457 at 468-469:
“…A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not when there is just a minor discrepancy between them… Two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand a discrepancy may occur when a piece of evidence stops short of, or contains a little more than what the other piece of evidence says or contains some minor differences in details.”
The contradiction complained of a in the instant case is that PW1 and 9 never mentioned any lighter but fuel and matches, PW3, PW10 and PW11 stated that the appellant called for matches when the lighter had failed. The two set of witnesses are agreed on the fact that the appellant used matches in setting fire on the victims. The only point of difference is that one set of witnesses (PW1 & PW9) maintained that he used matches straight ahead while the second set (PW3, PW10 & PW11) stated that he resorted to matches when his lighter failed. Could that be said to amount to a contradiction? It is not contended that some witnesses said matches was used while others stated matches was not used. The bottom line is that all the witnesses are unanimous that the appellant used matches.
The second complaint is that some witnesses said fuel was poured once on the victims, while others stated that fuel was poured twice. To my mind, there is no contradiction because the bottom line of the evidence of the witnesses is that fuel was poured on the victims before setting fire on them by the appellant with use of his matches. To my mind that does not amount to contradiction and even if it does, it is not material to affect the prosecution’s case. In the case of John Agbo v. State (2006) 6 NWLR (Pt.977) 545 the Apex, per Ogbuagu JSC at page 563 stated thus:
“In a string of decided authorities by this court, it is now firmly established that for contradictions to be fatal to the prosecution’s case it must go to the substance of the case not of a minor nature. It is settled that if every contradiction however trivial to the overwhelming evidence before the court, will vitiate a trial, nearly all prosecutions will fail. That human faculty may miss some minor details due to lapse of time and error in narration in order of sequence.”
The contradictions complained by the appellant if any, are not material to be fatal to the prosecution’s case, to warrant resolving same in his favour.

I will briefly revisit the evidence adduced by the prosecution in support of its case. The appellant was arraigned before the lower court as earlier stated in this judgment on a six count charge of attempted murder and murder. Counts 1 to 5 are for attempted murder while count 6 is for murder. Section 320 of the Criminal Code Laws of Lagos State 2003 defines attempted murder in the following:
“Any person who:-
(1) attempts unlawfully to kill another.
(2) with intent unlawfully to kill another does any act, or omits to do any act which is his duty to do, such act or omission being of such a nature as to be likely to endanger human life, is guilty of a felony and is liable to imprisonments for life”
The essential requirement of the offence of attempted murder is the intention to kill unlawfully.

As for the offence of murder, the prosecution must prove the following:
(a) the death of human being.
(b) that the death of the deceased resulted from the act of the accused person.
(c) the killing was unlawful
(d) the act of the accused person was intentional with the knowledge that death or grievous bodily harm is the probable consequence.

The prosecution called 12 witnesses and tendered 25 Exhibits, consisting of documentary and real evidence.
The victims of the attempted murder in counts 1 to 5 of the charge were PW1, PW2, PW9, PW10 and PW11. Each of the aforementioned witnesses gave an account of how they along with Ann Uzoh King now deceased, were severely beaten by the appellant, thereafter the appellant directed PW4 to pour petrol on them: The appellant struck a match and threw it on them, which ignited fire burning the victims and the deceased. Each of the victims namely PW1, PW3, PW9, PW10 and PW11 and in their evidence gave of gory tale of their woes on how the appellant set them ablaze and the nature of injuries and burns they sustained. They also testified to the fact that the deceased was severally burnt which resulted in her admission at Faith Hospital Lagos before her unfortunate death on 2nd August, 2006.
PW4 tesfied on how she summoned all the victims PW1, PW3, PW9, PW10, PW11 and the deceased on the instructions of the appellant in the night of 22nd July, 2006. PW4 testifed as to how the appellant gave the victims severe beating and brutalized the deceased, thereafter he (Appellant) directed her (PW4) to get petrol and pour on the victims including the deceased, thereafter the appellant struck a match and threw it on them, which resulted in the fire that gave them various degrees of burns. PW4 further testified that the deceased received the worst beating hence she was weak and got burnt all over. PW4 identified Exhibits P16 and P17 as the generators in the house of the appellant and Exhibit p.12 as the bowl in which she collected petrol and poured on the victims and Exhibits P10 and P11 as bottles of oil applied on the deceased as first aid by the appellant.
PW5 was the father of the deceased, while pw7 was her biological brother. PW8 was the Doctor of Faith Hospital Lagos where the deceased was admitted from 22nd July, 2006 to the date of her death being 2nd August, 2006. PW6 Dr. Sunday S. Soyemi performed the post mortem examination/autopsy on the cadaver of the deceased. PW12 Dr. Olusegun A. Okeowa is the medical Director of Forgas Clinic Surulere where PW10 was treated. The evidence of PW5, PW6, PW7 and PW8 established the fact that the deceased died. The evidence of PW1, PW3, PW4, PW9, PW10 and PW11 gave a vivid picture of how the appellant committed the offences charged. PW2 was the Police Investigator (IPO). The evidence of PW1, PW3, PW4, PW9, PW10 and PW11 debunked the fallacy and fantasy surrounding the story of a generator accident/fire and pinned the appellant to the crimes committed. See also Exhibits P7, 7A and P8, 8A, the pictures of the two generators (Exhibits P16 and P17) in the appellant’s house which are intact.

I will now revisit the second contention of the appellant to the effect that it is impossible to infer that the death of the deceased was as a result of the appellant’s act. The evidence of PW1, PW3, PW4, PW9, PW10 and PW11 as reviewed in the preceding paragraphs, have vividly given a picture of the dastardly and nefarious role played by the appellant in committing the crime. PW6, Dr. Sunday Sokunle Soyemi, who performed the autopsy stated that the deceased died of hypovolaemic shock due to loss of body fluid from severe burn injuries. One may pause to ask, as to who caused the burn injuries resulting in hypovolaemic shock? The answer is obviously not far fetched as it can be found in the evidence of the prosecution witness, to the effect that it was the appellant that caused burn injuries. Consequent upon the foregoing, the cause of death of the deceased was as a result of the appellant’s acts.

The standard of proof expected of the prosecution is proof beyond reasonable doubt. Thus proof beyond reasonable doubt does not mean proof to a scientific certainty or proof beyond any shadow of doubt. See Miller v. Minister of Pension (1947) 2 All ER 372, Abeke v. State (2007) All FWLR (Pt.366) 644. The evidence of the prosecution witnesses are overwhelming and damning. The prosecution have surely and effectively discharged the burden on them and have proved the offences charged beyond reasonable doubt. The issue also fails and is hereby resolved against the appellant.
Consequent upon the foregoing and having resolved the issues against the Appellant, the appeal herein is devoid of any merit and is hereby dismissed. The judgment of the High Court of Lagos State, Ikeja Judicial Division delivered on 11th January, 2007 in case No.ID/133C/2006 is hereby affirmed. The conviction and sentences imposed on the Appellant are hereby affirmed.
Before I draw the curtain, I must by way of parenthesis observe that the facts of this case are so miserable, sordid and morbid, reflecting the moral decay of the age in which we live. The Appellant a religious leader, instead of protecting and guiding his followers, has turned round, brutalizing them setting them ablaze, roasting an innocent soul to death and offering them stone when they desire bread and scorpion when they demand for fish. It is indeed sad and unfortunate.

AMINA A. AUGIE, J.C.A.: I have read in draft the lead Judgment just delivered by my learned brother, Jauro, JCA and I agree with him that the appeal lacks merit. He has dealt with all the issues canvassed in the appeal, and extensively too. I will, however, add a few words on the contradiction or inconsistency in the Prosecution’s case. The law does not insist that there must be no contradictions in the evidence; rather it is a well-established principle that the contradictions by witnesses should not be material to the extent that they cast serious doubts on the case presented as a whole or as to the reliability of such witnesses – see Igabele v. The State (2006) 6 NWLR (Pt. 975) 100 SC, where Onnoghen, JSC, explained –
“It is trite law that for contradiction in the evidence of Prosecution witnesses to be material and capable of rendering the evidence unreliable and not capable of being acted upon, such contradictions or inconsistencies must relate to the material ingredients of the offence charged. It is not every inaccuracy in the testimonies of witnesses that make such testimonies unreliable”.
A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not when there is just a minor discrepancy, which may occur when a piece of evidence stops short of or contains a little more than what another evidence contains – some minor difference in details, and “Material” means “having some logical connection with the consequential facts” – see Black’s Law Dictionary 9th Ed. In this case, the Appellant argued that PW1 and PW9 made no mention of lighter but only “fuel and matches”, but PW3, PW10 and PW11 said he called for matches after the lighter failed; and that some of the witnesses said fuel was poured on the victims twice while some others said the fuel was poured on them once before being set ablaze. These are contradictions or inconsistencies in the Prosecution’s case that the Appellant contends are material, which ought to cast doubt in its case. Pray, what is contradictory about the evidence of the said Prosecution witnesses?

The charge against him is that he intentionally caused fuel to be poured on his victims and threw “a lit match” on each of them. The witnesses said fuel was poured on the victims before they were set ablaze, and so, it is immaterial to the offence as charged whether the fuel was poured on them once or twice. It is also immaterial to the offence as charged whether he tried to use a lighter before “throwing a lit match” on the victims, who had fuel poured on them. He was charged with throwing a lit match, and the witnesses attested to that. The contradictions are not material to the ingredients of the offence charged, and do not in any way cast doubts in the case of the prosecution against him.

I am satisfied that the Prosecution proved their case against him, and there is no question in mind that the lower Court did a good job of evaluating the evidence before it, and the presumption that its findings and conclusions on the fact are correct have not been rebutted in any way by the Appellant.
The long and short of it is that I dismiss the appeal, and also affirm the decision of the trial court to convict the Appellant and sentence him to death.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I have had a preview of the draft of the judgment just delivered by my learned brother, the Honourable Justice Jauro, JCA. Having equally read, before now, the submissions of the learned counsel contained in the respective briefs of argument thereof vis – a – vis the records of appeal, as a whole, I cannot but concur with the reasoning and conclusion reached in the lead judgment in question, to the effect that the present appeal is devoid of merits. Thus, I equally share the view that the appeal is liable to be dismissed by this court.

My learned brother, Jauro, JCA, has remarkably outlined the facts and circumstances surrounding the appeal vis-i-vis the argument of the learned counsel contained in their respective briefs of argument. It’s my privilege to adopt both the reasoning and conclusion reached in the lead judgment in question.

Instructively, the genesis of the instant appeal is traceable to September 26, 2006. That was the date on which the Appellant was arraigned before the High Court of Lagos State, Ikeja Judicial Division, upon a five counts charge of attempted murder and one count charge of murder. The offences in question were contrary to Sections 520 and 316 of the Criminal Code Law Cap. 17 Volume 2, Laws of Lagos State, 2003, respectively.

Upon the arraignment of the Appellant before the court below on the said September 26, 2006, the trial proceeded in earnest. In the course of the trial, the prosecution called a total of twelve witnesses and tendered various exhibits, which were accordingly admitted in evidence. On the part of the defence, a total of nine witnesses, including the Appellant himself, testified. At the conclusion of the trial, both learned counsel to the prosecution and defence addressed the court below thus resulting in reserving judgment. On January 11, 2007 the judgment was delivered by the lower court, thereby finding the Appellant guilty on the six counts and accordingly sentenced him thus:
The accused is hereby sentenced as follows:
1. 20 years imprisonment including hard labour in respect of count 7.
2. 20 years imprisonment including hard labour in respect of count 2.
3. 20 years imprisonment including hard labour in respect of count 3.
4. 20 years imprisonment including hard labour in respect of count 4.
5. 20 years imprisonment including hard labour.
6. All the prison sentences shall run concurrently and shall only take effect if the sentence in respect of count 6 is committed or otherwise set aside.
7. And having been found guilty of murder in respect of count 6 the sentences of the court UPON YOU CHUKWUEMEKA EZEUGO ALIAS DR. REV. KING is that you be hanged by the neck until you be dead and may the Lord have mercy on your soul.

Not unnaturally, being dissatisfied with the convictions and sentences passed thereupon by the court below, the Appellant filed a notice of appeal on January 16, 2007, which was predicated upon a total of sixteen grounds of appeal. On June 17, 2008, an amended notice of appeal was filed, which is predicated upon a total of thirty one grounds of appeal. The Appellant has deemed it expedient to distil sixteen issues from the thirty one grounds of appeal. On the part thereof the Respondent has considered it appropriate to formulate only seven issues for determination.
My learned brother has deemed it expedient to adopt the seven issues formulated in the Respondent’s brief for the determination of the appeal. I agree that the Respondent’s seven issues are more concise and self embracing than the sixteen issues raised in the Appellant’s brief. And the reason for that is not farfetched! Indeed, it’s a trite principle, that issues for determination raised in briefs of argument must be concise and devoid of irrelevant complexities or frivolities. Thus, issues must be such as to ease comprehension of the matters to be adjudicated upon by the court. The court has the discretion to adopt the issues formulated by parties in the respective briefs thereof, or in special circumstances, may formulate such issues it deems relevant for the determination of the appeal. See GUDA VS. KITTA (1999) 12 NWLR (Pt.629) 21.
A fortiori, in the case of DIDE VS. SELEILETIMIBI, this court was recorded to have aptly, and rather emphatically, reiterated the now well settled principle, to the effect that –
The court has discretion to either adopt the issues formulated by parties in their briefs or formulate such issues as it deems are necessarily consistent with the grounds of appeal filed by the Appellant. Issues formulated ought to essentially be consistent with the grounds of appeal filed otherwise such issues would be liable to be declared incompetent. See (2008) 15 NWLR (pt. 1110 221 at 234 paragraphs D-E, Per Saulawa, JCA. See also OTUO VS. NTEOGWUILE (1996) 4 NWLR (Pt.440) 56; EBO VS. NTA (1996) 4 NWLR (Pt.442) 314; INCAR (Nig.) PLC vs. BOLEX ENT. (NIG) LTD (1996) 6 NWLR (Pt.454) 318; EKUNOLA VS. CBN (2006) 14 NWLR (Pt.1000) 292; JAMBO VS. GOV. RIVERS STATE (2007) 17 NWLR (Pt.1062) 198.

ISSUES 1 & 2:

Both issues 1 & 2 of the Respondent are arguably co-terminous. The vexed questions raised therein are to the combined effect of whether the lower court was obliged to invite the parties to address it on the issue before expunging Exhibits P1 & P4, as well as part of the oral evidence of PW4 from the record. Both issues were distilled from grounds 15 & 17 of the notice of appeal.

At page 851, lines 1-30 of the Record, the court below was recorded to have held, inter alia, thus:
I shall now examine whether the death of the deceased was caused by the unlawful act or omission of the accused.

PW5 and PW7 gave evidence of what the deceased supposedly said to them about how she came about her injuries.

PW2 also tendered Exhibits P1, P4 and P9 said to have been extrajudicial statements of the deceased.
A former statement of any person whether or not he is a witness in the proceedings may not be given in evidence if the purpose is to tender the statement as evidence of the truth of the matters asserted in it. However, a previous statement of witness may be admitted in evidence as proof of the fact that the statement was actually made by the witness to the Police though not to prove its contents or used for contracting or impeaching the veracity or credit of the witness who made the statement … strict proof is required of the dying declaration on the exact words used by the deceased. see HAUSA vs. STATE (1994) 6 NWLR (Pt.350) 281.

The extra judicial statement Exhibits P1, P4 and P9 cannot be evidence of truth of their contents in the absence of the direct testimony before the court of the maker thereat.
It is safer to exclude these pieces of evidence either as res gestae or as dying declaration and I shall therefore discountenance the purported statements credited to the deceased as contained in Exhibits P1, P4 and P9 and in the oral testimonies of those witnesses which I have accepted as a court can under certain circumstances accept part of the testimony of a witness and reject the rest. See OBIODE & ORS VS. THE STATE 1970 ALL NLR 36.

At this point in time, I would want to stress the trite fundamental doctrine, that where a court deems it appropriate, or even expedient, to raise an issue or point suo motu, it then behoves the court to accord the parties every opportunity to address it there upon. Undoubtedly, there is a plethora of authorities on this principle. Of course, one of such authorities is the notorious case of COLE VS. MARTINS (1968) ALL NLR 161, where in the Supreme Court most aptly, and rather authoritatively, held, inter alia, this:
We have frequently stated in the past, and we must reiterate again now, that it is most desirable that if a court considers after hearing argument of counsel that a matter before it can in fact be decided on a technical point on which it has not been addressed by counsel, then the judge should have the matter re-opened and give counsel on each side the opportunity to address him on the point which he thinks may decide the matter before he gives judgment in regard to it. It is in our view only after so acting that a court should adjudicate on a technical point taken by the court itself, particularly when the defect, if there is one, and be cured if the court, in its discretion, gave leave to amend. Per Lewis JSC at 163; (1969) SCNLR 215 at 278, See also REGISTERED TRUSTEES OF APOSTOLIC CHURCH, LAGOS AREA VS. AKINDELE (1967) NMLR 263 at 264; (1967) SCNLR 205.

Notwithstanding the above trite general principle, however, a decision of a trial court should not merely be set aside by an appellate court unless it’s so obvious that the decision has occasioned a miscarriage of justice to both or any of the parties. See OSHIOMHOLE VS. FRN (2007) 8 NWLR (pt.1035) 58 at 65.

In the instant case, the fact that exhibits ‘P1, P4 & P9’ and the oral testimonies of the PW5 & PW7 were discountenanced by the lower court in the course of the vexed judgment thereof, is not in doubt. Under the English common law, it’s trite that the evidence of a statement made to a witness by a person who is not himself called as a witness is called “hearsay”, if the object of the evidence is only to establish the truth of what is contained in the statement in question. Generally speaking such an evidence is not admissible. However, there are some exceptions to the general rule. See SUBRAMANIAM VS. PUBLIC PROSECUTOR (1956) 1 WLR 965 at 969, wherein the privy council held, inter alia, thus:
Evidence of a statement made to a witness by a person who is not himself called a witness may not may not be hearsay. It is hearsay and admissible when the object of the evidence is to establish of what is contained in the statement. It is not hearsay and admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made.
Instructively, one of the most remarkable exceptions to the common law hearsay principle, is regarding statements made by deceased persons, otherwise known as DYING DECLARATIONS.
As a matter of principle, a dying declaration denotes a statement by a person who (believes) that death is imminent regarding the cause or circumstances of the impending death thereof. Such a statement may be admissible in evidence as an exception to the rule of hearsay. Also, termed death bed declaration; ante mortem statement. See BLACK’S LAW DICTIONARY, 9th edition 2009, at 468. See also Stephen J. F: A HISTORY OF THE CRIMINAL LAW OF ENGLAND (1883) 447-448, to the effect thus:
(A) The peculiar to criminal cases is the exception to the rule respecting hearsay evidence which renders dying declarations as to the cause of death admissible in trials for murder or man slaughter…The earliest emphatic statement of it … is to be found in woodcocks case decided in 1789…This case refers to a decision in 1720… and to the case or R. V. Reason and Tranter, decided in 1722… A series of cases from 1678 to 1765 show that during that period declarations of deceased persons as to the cause of their death were admitted even though the declarant had hopes of recovery when they were made.
Remarkably, under the provisions of Section 33 of the Evidence Act, there are six different circumstances or cases in which a statement of relevant fact by a deceased person is relevant, and therefore admissible in evidence. See Section 33 of the Evidence Act (supra):
33-(1) Statements, written or verbal, or relevant facts made by a person who is dead are themselves relevant facts in the following cases –
(a) When the statement is made by a person to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in case in which the cause of that person’s death comes into question, such statements are relevant only in trials for murder or manslaughter of the deceased person and only such person at the time of making such declaration believed himself to be in danger of approaching death, although he may have entertained at the time of making it hopes of recovery.
The above provision is similar to that under the English common law, albeit with some differences. What’s more, as aptly postulated by Aguda-
Admissibility of dying declaration is not confined to the common law and Evidence Act alone. According to the Moslem law of Malik School a conviction for murder can properly be had on proof of a dying declaration but it must be supported by the Kasama Oaths. See THE LAW OF EVIDENCE, 4th edition, 2002 at 71, INDABO VS. KANO N.A. (1957) 2 FSC 4.
It must be pointed out, that the extent of the relevancy of a dying declaration is determined by certain conditions viz:-
(a) That the declaration itself either written or verbal must be of relevant facts;
(b) That the declarant must have died prior to the evidence of the declaration is required to be given;
(c) That the declaration must relate to the cause of the death of the declarant nor as to any of the circumstances of the transaction which resulted in his death; and the cause of the declarant’s death must be in question in the trial;
(d) That the declaration is relevant only in trials for murder or for manslaughter of the declarant; and
(e) That the declarant must have believed himself to be in danger or approaching death, although he may have entertained at the time of making the declaration hopes of recovery.
See ORSHIOR KUSE VS. THE STATE (1969) NMLR 153 SC.
Contrariwise, the distinctive requirement under the English common law, as alluded to above, is that the deceased must have made the statement under “a settled hopeless expectation of death.” See R. VS. PEE L (1360) 2 F & F 21; 175 ER 941. Per Willes J; R. Vs PERRY (1909) 2 KB 697.
It’s trite –
There can be no doubt that there is a distinction between the condition of a person who has “a settled hopeless expectation of death” and that of a person who merely believes himself to be in danger of approaching death and at the same time entertains hope of recovery. Thus, not much reliance can be put on English common Law authorities in this regard. Afortiori, cases decided in Nigeria prior to the Evidence Act, (such as R.v Harry & ors and R. v. Daniel Bebesebe) are for same reason no more of much importance. See THE LAW OF EVIDENCE OPCIT, at 73. See also R. VS. O OGBUEWU (1949) 12 WACA 483; MOMO GARBA & ANR VS. R. (1959) 4 FSC 162.
Most especially, in the case of R. VS. OGBUEWU (supra), the deceased was wounded, and in hospital. He made a statement regarding the cause of his injury which was recorded. However, before making the statement, the police officer asked him whether he thought he was going to die, to which he replied thus: “I don’t know whether I am going to die.” It was held by the West African Court of Appeal (WACA), that the statement was not admissible as a dying declaration, on the ground that there was no proof that the deceased, when making it, believed himself to be in danger of approaching death.
In the latter case of MOMO GARBA & ANR VS. R. (supra), the deceased, who was injured, told the first person to arrive the scene that he was going to die, and that it was the 1st Appellant who instigated the beating. After he was taken home, and given water to drink, the deceased made a further statement but said nothing about his expectation of death. The trial court admitted the second statement on the ground that, “that is a sufficient belief in impending death to support declarations made the same evening.” On appeal, the Federal Supreme Court held that, that was too wide an expression due to the possibility that the expectation of death might have been (owing to his being at home and among friends) removed from the mind of the deceased. Thus, the evidence of the latter declaration was held to have been wrongly admitted by the trial court.
In the instant case, the court below had initially deemed it expedient to admit Exhibits P1, P4 & P9. However, in the course of judgment, having critically, albeit dispassionately, evaluated the entirety of the evidence, the court below, in its own wisdom, deemed it rather appropriate to discountenance the said Exhibits P1, P4 & P9, and the oral testimonies of the PW5 and PW 7 led thereupon, to the effect thus:
I therefore discountenance the purported statement credited to the deceased as contained in Exhibits P1, P4 and P9 and in the oral testimonies of PW5 and PW7 … see page 851, lines 26-30 of the Record.
I would want to appreciate, that the above finding of the court below is unassailable. It’s quite in accord with the well settled principles of law as eloquently enunciated in a plethora of authorities of the Supreme Court. See R. VS. OGBUEWU (supra); HAUSA VS. STATE (1994) 6 NWLR (pt.350) 281; PETER vs. STATE (1994) 5 NWLR (Pt.342) 45, et al.
Most interestingly, in each of the above mentioned cases, the Apex court, and indeed WACA before it, had reiterated the fundamental principle, that no dying declaration shall be admissible in the absence of proof that the maker thereof has believed himself to be in danger of approaching death at the material time he made the statement.
Strangely, the word “discountenance” has no pride of place in Black’s Law dictionary or even the Oxford Advanced Learner’s Dictionary. However, the word countenance, as a verb, denotes (to) support something or agree to something happening. And, with the prefix ‘dis’ added thereto, countenance becomes’ discountenance. The prefix ‘dis’ literally meaning not; the opposite of. Thus, the word discountenance simply means not agreeing with, or opposed to.
Hence, in the con used by the lower court in the judgment, the term discountenance simply means that the court did not agree with the Exhibits P1, P4 and P9 and the testimonies of PW5 and PW7 as valid evidence of a dying declaration of the deceased person. Thus, by discountenancing the pieces of evidence in question, the court below merely declined to attach any weight thereto.

Indeed, it’s trite law, that a trial court is under an onerous duty to admit and act upon only on an evidence which is properly admissible within the purview of the provisions of the Evidence Act and other relevant statutory provisions. Where, however, the trial court inadvertently admits such an inadmissible evidence, as in the instant case, the court is under a duty not to act on it. See R. VS. ELLIS (1910) 2 KB 746; STIRLAND VS. DPP (1944) AC 315 at 327; (followed by the Supreme Court in) WAHABI ALAO LAWAL VS. THE STATE (1966) ALL NLR 107; (1966) NMLR 343; AJAYI VS. OLUFISHER (1956) 1 FSC 90.
IN the case of MINISTER OF LANDS, WESTERN NIGERIA VS. NNAMDI AZIKWE & ORS (unreported): Supreme Court SC No.169/68, judgment dated January 31, 1969, it was held by the Apex court that –
“It is not within the competence of the parties to a case to admit by consent or otherwise a document which by law is inadmissible.” per Coker JSC.
Therefore, where such evidence is in error or otherwise admitted in evidence, as in the instant case, then it behoves the trial court to expunge it in the course of the judgment. And where the trial court fails to do so, then the Appeal Court has the duty to reject (discountenance) such evidence, and accordingly consider the case in the light only of the legally admitted evidence. See OMIDOKUN OWONIYI VS. OMOTOSHO (1961) ALL NLR 304; 1962 WNLR 1; IDOWU ALASE VS. SANYA OTORI ILU (1964) 1 ALL NLR 390; 1965 NMLR 66 SC.
Thus, there is no doubt that issues 1 & 2 ought to be resolved against the Appellant. And I so hold.

ISSUES 6 & 7

The sixth issue raises the fundamental question of whether or not the court below had properly evaluated the evidence of the parties before arriving at the decision to convict the Appellant. The seventh and last issue equally raises a fundamental question of whether the court below was right when it held that the prosecution had proved the cases of murder and attempted murder, against the Appellant, beyond reasonable doubt.
I have critically, albeit dispassionately, considered the submissions of the learned counsel, contained in their respective briefs of argument vis-‘a-vis the entirety of the record of appeal itself. Undoubtedly, by virtue of the combined effect of the well set out provisions of Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, and Section 138 (1) of the Evidence Act, as amended, the prosecution (Respondent) has a fundamental duty to prove its case beyond reasonable doubt against the Appellant. Otherwise, the trial shall be vitiated, and the Appellant ought to be discharged and acquitted. See BALAKE VS. STATE (1991) 7 NWLR (PT. 205) 567; CHUKWU VS STATE (2007) 13 NWLR (Pt.1052) 430 at 456-457 paragraphs G-B.
Most especially, the provision of Section 36 (5) of the 1999 Constitution is to the well cherished effect, that every person who is charged with a criminal offence shall be presumed to be innocent until he is (duly) proved guilty. Afortiori, the provision of Section 138 (1) of the Evidence Act is equally to the well cherished effect, that if the commission of a crime by a party to any proceeding (civil or criminal) is directly in issue, it must be proved beyond reasonable doubt.

In the instant case, it’s rather evident, on the face of the records of appeal, that in establishing (proving) the case thereof, the prosecution had called a total of twelve witnesses and tendered various exhibits. Some of the witnesses in question were indeed eye witnesses, who gave graphical eye witness accounts of the circumstances surrounding the horrible incident that occurred on July 22, 2006 at No 68 CANAL VIEW CLOSE, AJAO ESTATE, Lagos. Most particularly, the PW1 (VIVIAN EZEOCHA); PW3 (OLISA CHIEJINA); PW4 (KELECHI CHIKERE); PW9 (CHIZOBA ONUORAH); PW10 (KOSISO CHUKWU) and indeed PW1 (JESSICA NWENE), testified regarding the pouring and cruel burning of the deceased person and other innocent victims by the Appellant. Their testimonies were not discredited under cross-examination by the defence.

At page 101E, volume I of the record, the PW1 in her examination in chief narrated how the Appellant threatened to kill her and others on the 22nd July in question. According to PW1-
He (Appellant) asked Kelechi if I ask you to pour the fuel, you shift inside. So Kelechi now shifted a little bit and asked her to pour fuel on them and we were still kneeling down begging him, Kelechi poured the fuel on us. We were on our kneels (sic) begging when the fuel was poured on us until the accused person the first-match on the ground. It caught fire but not all that much and it went off. Before the fire went off, we moved away from the pool of fuel.
The accused told us to go back to where he asked us to stay, we went back there again and still begging. He asked Kelechi to pour the remaining fuel on us because she didn’t finish pouring before and Kelechi did as instructed.
That was when the accused person struck the second match and it caught fire.

At page 101F of the record, the PW1 continues the narration thus: By then I knew fire touched me but I would not say about the rest but the only person I can speak for is Ann (Deceased person) because I was together with her…
When the fire was on me, I used the velvet head tie to put off the fire on my body as I was running…
Ann was burning and she could not do anything…I was still there, the accused person stood at a distance and dragged Ann to the tap and opened the tap on her. The fire went off and he dragged her to a sitting position…
By then Ann was white…He took Ann to the boy’s quarters. … He was with King’s vegetable oil and palm oil and Goya oil.
He was pouring it on Ann… He now said Ann should not worry and then used king’s vegetable oil and poured it in to Ann’s vagina and all over her body…
I used palm oil on my hand and my leg. He was treating Ann by using First Aid but at a time he couldn’t do anything. Ann could not walk and was like this and was moving like a robot.

Continuing further at page 101G, the PW1 stated thus:
We went to the hospital …
Faith City Hospital at Asagari – Ogun …and I saw Ann lying down but … she could not talk, she was just there…
When asked as to the where about of Ann, the PW1 replied thus:
“A. My lord I don’t know where Ann is but I know that she is dead.”
Under cross examination (at page 101N), the PW1 reiterated her evidence in chief thus:
A. All I know is that I suffered burn on my head and leg. My cloth was burnt which I took to Panti and submitted as evidence to the IPO and I saw Ann Uzo who had burnt on her and saw Ihosi with burnt (sic) also my lord.
Again, at page 101P, the PW1 stated under cross examination thus:
A. What I said in my statement was that the accused person poured fire on us and the accused person struck the first and second matches and we were burnt.
The PW1 vehemently denied that she did not sustain any visible injury.
According to her-
A. My Lord it is not a gang up and as I am sitting here I still have the mark I sustained I dropped everything I was putting on that day at Panti with the IPO. (page 101T, lines 6-7 of the Record).

On his own part, the PW3 (OLISA CHIEJINA) testified at pages 148-161 (examination in chief) and 161-187 (cross examination). He, inter alia, stated that the Appellant was so furious with him and others at the time of the incident. According to the PW3:
Having beating (sic) all of us mercilessly, there he now told Kelechi that the next is that he was going to set us ablaze for fornication…. he now said we should pack ourselves closer to the gate. So, were there, we formed a triangular shape to the gate. He moved back and told Kelechi pour the fuel on us… Kelechi poured the first one, he now told her to empty everything that was in the basis which she did and she now dressed back…when tried using the liter it couldn’t ignite then he told Kelechi to go and get the matches for him, Kelechi now went and got the matches. He struck the first one, breeze blew it down, then he struck the second one, then as he struck it that was when I jumped out from where the wet ground was to another portion closer to the tap. Then he threw that one in to this thing and everywhere caught fire.

Ann was burning, I saw Ann like this burning head to toe. That night she was putting on a silky night gown and her part because she was woken from sleep and the kind of hair she made was jelled it up, she just parked it and applied it jell. Ann got burnt from head to tow(sic) to the extent that she was now moving with fire. So there was a kind of fear within us. So everybody started looking for a way out, we were now shouting. Then the gate was on flames because the wetness was close to that gate….Kosi was as well burning on his legs…so he was now burning screaming, shouting ….so we now parked water and got to the gate, put off the fire that was there and ran back to the boys quarters to set more water for Ann because the was burning there … he (Appellant) now came with Ann and asked us to set palm oil, vegetable oil, Gayo. We brought those things…so he was now using it on Ann, he poured some on her body, he put some in her moth and he poured some in her private part.

According to the PW3, the Appellant –

Got in to his RAV 4 Jeep, put Ann in the other side got in there and asked Kelechi to go behind. Kelechi went behind, then we now got into a Gulf car (Kosis car) that was outside that compound and we drove to the hospital in Faith City Clinic Ajao Estate. See page 153 of the Record.

Regarding Exhibit P9 [Ann- deceased person’s statement), the PW3 vehemently denied that he was the one who gave the deceased the idea to say that she was burnt by the generator. According to the PW3-
A. My lord, before leaving the premises that day to the hospital, I was instructed and she was standing there. I was instructed by the accused to say that so that she can be able to be admitted into any hospital we go to. And on getting to the hospital, the accused did not enter with us, he just stood by the door and later left. I was still the one that took her in and she heard when I said it. After that, that was when the Doctor took her in and started treating her. So, she heard everything… and she picked the idea of what I said because, she was standing there when I said it See page 179 Record.
The evidence of the other eye witnesses (PW4, PW9, PW10 & PW11) of the prosecution are to a large extent corroborative of the evidence of both PW1 and PW3, most especially regarding the cause of the death of the deceased person (Ann) in question. That, it was the Appellant who instructed Kelechi to pour fuel on the deceased and other persons, and that he was the one who actually set them ablaze.
At page 706, the DW9 (Appellant) admitted having used the palm oil on the deceased (Ann):
A: Yes I stood and I took it and I began to use it on Ann, I didn’t try to carefully observe the container. I know they gave me red oil… in a plastic container but I didn’t know whether it was Eva container or Ragolis or Swan.

Under cross examination, the Appellant [DW9] was as asked thus:
Q: Okay now you also mentioned before this Honourable Court yesterday that anything God tells you that is what you do?
To which the Appellant boastfully answered-
“A: 100%, and million over 100%” (page 710)
When asked as to whether he would burn people alive if God asked him to do so, the Appellant replied rather shockingly, thus:
…I have said the truth if God says, burn the whole, he would bring the power and I know burn the whole world I would go on and do it.
… Not I see God face to face not hear and he talks to me face to face.
… But if he didn’t say burn the whole world, I will not do it
… I say one thing is binding as Heaven pleases and as God pleases that is how the servant of God must do. (Page 711, lines 1-15, Record).

In view of the foregoing postulations, I am duly satisfied that the answer to issues 6 & 7 is most inevitably in the affirmative, and they are both hereby resolved against the Appellant.

Having critically, albeit dispassionately, considered the nature and circumstances surrounding the case, the totality of the creditable evidence adduced at the trial, I am left with no doubt that the prosecution has established beyond reasonable doubt its charges of attempted murder and murder against the Appellant as charged.

Instructively, from the attitudinal disposition of the Appellant at the trial, as depicted on the face of the records of appeal, the Appellant could not be said to have been insane prior to or at the time of the commission of the offences in question. Thus, as aptly found by the court below, neither the defence of provocation, nor that of insanity could have availed the Appellant in the circumstances of the present case.

Hence, in the light of the foregoing postulations, and the detailed reasoning and conclusion reached in the lead judgment, I have no hesitation whatsoever in holding that the instant appeal is grossly devoid of merits. Consequently, the appeal is hereby dismissed by me. The vexed judgment of the High Court of Lagos State, Ikeja Judicial Division, which was delivered by the Honourable Justice J. O. K. Oyewole on January 11, 2007 in case No.ID/133C/2006 is affirmed. The conviction and sentences passed there upon the Appellant are affirmed.

I have deemed it expedient to remark, at this point in time, that the circumstances surrounding the brutal and merciless setting ablaze of the deceased and other persons by the Appellant in ‘God’s name’ was most unbelievably appalling! The fact that the Appellant was driven by a sheer misguided religious zealotry to commit the heinous, and rather revolting crimes is not at all in doubt! As alluded to above, the Appellant had stated under cross examination that he could burn people alive in God’s name – if God asked him to do so. The Appellant had shockingly stated thus:
… I have said the truth if God says burn the whole world, he would bring the power and I know burning the whole world I would go on and do it.
…Not I see God face to face, not hear and he talks to me face to face.
… But if he didn’t say burn the whole world, I will not do it.
…I said one thing is binding as Heaven pleases and as God pleases that is how the servant of God must do, (page 711, lines 1-15 volume 3 of the Record of Appeal).

I could recall, very vividly, the remark once aptly made by this court to the following effect:
There is no doubt that in every culture all over the world, the crime of murder is shocking, revolting and rather abominable. It is, as a matter of fact, the most heinous and unnatural crime that could be committed (by that animal called man!) See CHUKWU VS. THE STATE (2007) 13 NWLR (Pt.1052) 430 AT 468 paragraph D, per Saulawa, JCA.
see also UDOFIA VS. THE STATE (1988) 3 NWLR (pt 84) 533 AT 539 F-H. Per Oputa, JSC.

There is no gainsaying the fact, that from the senselessly brutal attitudinal disposition thereof, the Appellant is far from being a normal person. Inarguably, a sane, normal and God fearing person wouldn’t just go about setting people ablaze in ‘God’s name’. Thus, could the Appellant be said to be psychopathic (insane)? What was the compelling or motivating reason, if any for his committing such a most heinous, and rather unnatural, crime? That’s, if he’s capable of reasoning at all!

Undoubtedly, killing of unarmed innocent people in God’s name is abhorrent, and rather unjustifiable. The cruel manner in which the Appellant set ablaze the deceased and other persons could aptly be likened to the fate that had befallen the 300 legendary Protestants (Martyrs) that were burnt to death as far back as in the year 1554. I think, that was during the infamous reign of Queen Mary Tudor, who succeeded King Edward VI in 1553. After reviving the Pope’s jurisdiction over England, Queen Mary got Parliament to reenact the defunct obnoxious laws against heresy. The Ecclesiastical courts were conferred with jurisdiction to enforce the laws against heresy. However, the Ecclesiastical courts lacked jurisdiction to pass death sentence. They only had power to try and condemn (convict) heretics. The Queen herself reserved the exclusive power to pass a death sentence by issuing a writ termed WRIT HAERETICS CUMBERENDO.

Within a period of four years, hundreds of Protestants were tried, convicted and brutally condemned to death by burning. They were tied to the stakes and set ablaze! Not surprisingly, the verdict of history was such that this outrageous reign of terror in England at the time bred so much a hatred of Roman Catholics and all they stood for. As aptly attested to by GM Trevelyr-
In the hands of the propagandists like John Foxe, the memory of Martyrs bred a hatred of the Church of Rome, which proved the one constant element in English opinion during the coming centuries of civil and religious faction, for the next two hundred years and more Foxes Book of Martyrs was often placed beside the Bible in the Parish churches, and was read in manor house and cottage, by Anglican and puritan, in an epoch when there was relatively little else to read and when interest in religion was profound and widespread.

Most of the victims were inhabitants of London or the Home counties, and most of them were humble folk.
See HISTORY OF ENGLAND, BOOK III, CHAPTER IV. See also John Foxe: THE BOOK OF MAWRS; Lord Denning, MR: LAND MARK IN THE LAW, 1984; 92.

Paradoxically, the current reign of terror unleashed by the notorious Boko Haram insurgents upon the hapless people (most especially in the Northern part of this country) in God’s name, is antithetic to the well cherished Islamic teachings and values. By the Holy Scriptures, human life is sacrosanct (sacred); thus must not be taken save by the due process of law! Under the 1999 Constitution (supra), every person has a right to life; a right to dignity; a right to personal liberty; a right to fair hearing; a right to private and family life; a right to freedom of thought, conscience and religion, et al. See Sections 33-43 of the 1999 Constitution as amended (supra). These are the everlasting fundamental inalienable rights to which every citizen of this country is entitled. We must collectively rise up to the challenges to uphold and preserve those rights cherishingly enshrined in the Constitution (supra). We have the obligations to do so, not just for our present generation, but for all posterity, as well!

Appearances

Olalekan Ojo Esq.For Appellant

AND

Mr. Lawal Pedro SAN, Solicitor – General Lagos State with Mr. Femi Adamson, Assistant Chief State Counsel and Mr. Mikhail Kadiri, State Counsel, Ministry of Justice Lagos StateFor Respondent

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