GABRIEL EWHARIEME & ORS. V. THE STATE
(1985) LCN/2245(SC)
In The Supreme Court of Nigeria
On Friday, the 29th day of November, 1985
SC.196/1984
JUSTICES
KAYODE ESO Justice of The Supreme Court of Nigeria
AUGUSTINE NNAMANI Justice of The Supreme Court of Nigeria
BOONYAMIN OLADIRAN KAZEEM Justice of The Supreme Court of Nigeria
ADOLPHUS GODWIN KARIBI-WHYTE Justice of The Supreme Court of Nigeria
SAIDU KAWU Justice of The Supreme Court of Nigeria
Between
- GABRIEL EWHARIEME
2. DAVID IKPEGBU
3. EZEKIEL KAROMU
4. DICKSON EWHARIEME Appellant(s)
AND
THE STATE Respondent(s)
RATIO
WHETHE OR NOT THE SUPREME COURT DEALS WITH APPEAL ON ISSUES OF LAW ONLY
Be that as it may, I think it is necessary again to re-emphasize that this Court essentially deals with appeal on issues of law only even though under Section 213(3) of the Constitution of the Federal Republic of Nigeria 1979 as Amended, grounds of mixed law and facts or of facts simpliciter may in certain cases be allowed to be argued by leave of the Court of Appeal or of this Court. For this reason, it is therefore important to stress that issues which come within the ambit of Section 213(3) of the Constitution should have first been raised at both the trial court and the Court of Appeal before if at all, they are again raised in this Court. If that is not done or if it is considered that those issues have been exhaustively dealt with by those courts, this Court will be compelled to refuse leave for such issues to be raised again and canvassed in this Court. PER KAZEEM, J.S.C.
WHETHER OR NOT AN APPELLANT HAS THE RIGHT OF APPEAL WITHOUT LEAVE ON DECISIONS IN CRIMINAL PROCEEDINGS WHERE A DEATH SENTENCE HAS BEEN ORDERED
The appellant no doubt has right of appeal to this Court without leave under s.213(2)(d) of the Constitution of the Federal Republic of Nigeria 1979 which provides for appeal to this Court from the Court of Appeal as of right in-
“decisions in any criminal proceedings in which any person has been sentenced to death by the Court of Appeal or the Court of Appeal has of firmed a sentence of death imposed by any other court.” PER ESO, J.S.C.
WHETHER THE SUPREME COURT CAN INTERFERE WITH THE CONCURRENT FINDINGS OF THE TRIAL COURT
The Court of Appeal upheld all the findings of fact made by the learned trial judge. In effect what were before this Court were concurrent findings of fact by the two courts and there is nothing that persuades me that this court should interfere. PER NNAMANI, J.S.C.
WHETHER OR NOT IT IS LEGITIMATE FOR THE SUPREME COURT TO DECIDE ON AN APPEAL NOT CONSIDERED BY THE LOWER COURTS
It is not legitimate for this Court to decide an appeal on any of the issues which has not been considered by the Court below. However, where the ground of appeal relied upon is an issue of jurisdiction as in Shobogun v. Sanni & Ors. (1974) 1 All N.L.R. (Pt.2)p.311, Ajao v. Sonola (1973)5 S.C. 119 this Court can take the ground of appeal. PER KARIBI-WHYTE, J.S.C.
B. O. KAZEEM, J.S.C. (Delivering the Leading Judgment): In this appeal, the Appellants were all tried and convicted for Armed Robbery by Adio J under Sec.1(2)(a) of the Robbery and Firemarms (Special Provisions) Act No.47 of 1970 as amended by Act. No. 8 of 1974. They were all sentenced to death, and their appeal to the Court of Appeal in Ibadan was equally dismissed. They have now further appealed to this Court.
The facts which led to the conviction are straightforward. The Appellants were in a gang of robbers who, armed with guns, invaded the premises of Faseru Motors, Ilesa in the early hours of 23rd November, 1981 in order to steal therein. One of them shot one Moses Adaramoye a night-watchman (P.W.1), with a gun ofter he failed to give them the keys to the office and the gate in the premises. He was shot in the stomach, his chest and side but he was immediately able to recognise one of the robbers as having a deformed leg. That person turned out to be the 2nd Appellant. Later at an identification parade held on 2nd February, 1982, the witness identified all the four Appellants as among the robbers. The robbers also attacked another night guard one Joseph Orubuleye (P.W.2), and shot him near his eye and the bullet came out of his cheek and went through his shoulder. He was left unconscious in his pool of blood. He was not able to recognise any of the robbers. In their escapade the robbers also attacked and shot with a gun a gardner one Balubi Jubrila (P.W.4), who slept in the premises that night. Eventually, the robbers succeeded in breaking into the office of the Spare-parts Manager, Mr. Ayeni Olaniyi (P.W.6) from where they stole a sum of N109 which was the proceeds of sale for Saturday the 21st November, 1981. The theft was later discovered by P.W.6 when he got to his office the following Monday, the 23rd November, 1981. However, the matter was then reported to the police who commenced investigation. The four Appellants were later arrested on 1st December, 1981 at a meeting held in a hotel while they were planning another robbery operation for Adamog Construction Company Ilesa. Inside the Peugeot Car No. BD 9296 BA belonging to the 2nd Appellant, which was brought by the Appellants to the meeting, the Police found several types of guns with live ammunitions, a sharpened matchet, some serviceable touch lights, a big hammer, some charms, two bags containing dark clothes and masks.
At the trial, the Appellants denied the charges, and put up several defences namely:
(a) that the identification parade carried out on the 2nd February, 1982 at which P.W.1 identified all the Appellants, was improperly conducted. The reasons ascribed for this was that it was held in suspicious circumstances because a Daily Times Newspaper published on 15th December, 1981 Exhibit about the Press Conference held by the commissioner of Police, Ibadan on the armed robbery operations in Oyo State contained the pictures of the Appellants who were shown to the public as being among those armed robbers; and that there was a possibility that P.W.1 who identified the Appellants had previously seen those pictures in the newspaper that has been in circulation in the State.
(b) that there was contradiction between the testimony of P.W.1 and P.W. 9 because P.W.1 said that ofter he was shot by the Appellants he later went to report the incident at the Police Station whereas P.W.9 said that he saw him among the victims of the robbery when he visited the scene ofter the report. And that there was a discrepancy between the evidence of P.W.2 at the trial and his statement to the Police – Exh.A in that P.W.2 said at the trial that he could not recognise the Appellants because his sight was blurred by the blood from his wounds when he was shot, whereas in Exh.A, he said it was because the Appellants were masked.
(c) that the 2nd Appellant particularly, put up an Alibi which was supported by his brother D.W.3 that at the material time when the robber was committed at Ilesa in the early hours of 23/11/81. He was visiting his brother at Osogbo where he stayed throughout the night of 22nd November, 1981 till the morning of 23rd November, 1981.
In his well-considered judgment, the learned trial judge meticulously dealt with all those defences. On the issue of identification of the Appellants he considered it in relation to each Appellant; and on the whole, he found not only that the identification parade was properly conducted, but also that P.W.1 clearly identified all the Appellants as those who took part in the armed robbery. On the issue of contradiction, the learned trial Judge first observed that:
“It is not every discrepancy between what one witness says, or between what a witness says at one time and what he says at another that is sufficient to destroy the credibility of a witness altogether. See Ndebili v. The State (1965) N.M.L.R. 253 at p.257.”
and ofter reviewing the evidence on the issue, he then concluded that:
“In any case, I do not consider the alleged contradiction, if any, as of any substonce. For an objection to succeed on the ground of contradiction in the evidence of a witness for the prosecution, the contradiction must be shown to amount to substontial disparagement of the witness or witnesses concerned, making it dangerous or likely to result in a miscarriage of justice to rely an the evidence of the witness or witnesses, see Enahoro v. The Queen (1965) N.M.L.R. 265.”
Moreover, on the issue of Alibi, the learned trial Judge found that the defence was an after thought because at the first opportunity after the incidence when the 2nd Appellant made his statements to the Police – Exh. BB and CC, he did not state herein that he was staying with his brother at Osogbo at the time of the armed robbery in Ilesa. He then observed that:
“Having regard to the totality of the evidence be fare the court my conclusion is that the alibi put up by the 2nd accused cannot be sustained. It was an ofterthought calculated or intended to mislead the court.”
On the whole, the learned trial Judge after careful consideration of the totality of the evidence of the prosecution witnesses as well as the defences put up by the appellants, convicted all of them and sentenced them to death. They all appealed thereafter to the Court of Appeal in Ibadan.
In their Notices and Grounds of Appeal to the Court of Appeal the four Appellants apart from filing the Omnibus Ground that “the decision is altogether unwarranted, unreasonable and cannot be supported” also raised the issue that the identification parade was improperly conducted in that the photographs of the Appellants had been published in the Daily Times of 15/12/81 before the identification parade took place 8 days later.
At the Court of Appeal however, learned Counsel for the Appellants with leave filed and argued other additional grounds of appeal and abandoned all the other original grounds filed by the Appellants. It was then submitted that the charge was defective in that it did not disclose that any person was robbed or that any property belonging to any person was stolen. In essence, it was argued that ownership was neither alleged in the charge nor proved. The Court of Appeal of course rejected that submission and cited in support the decision in R v. Elechi (1958) 3 F.S.C.17, and the provisions of Sec. 154(1) of the Criminal Procedure Act. That section provides that where the property referred to in a charge is described with reasonable clearance, it was not necessary, except when required for the purpose of describing an offence an any special ownership of property, to name the person to whom the property belongs. The Court of Appeal therefore found that there was no defect in the charge; and that the Appellants were not in any way misled or embarrassed in their defence by the facts that the correct ownership of the stolen property was not stated in the charge; and that the defect (if any) was not material to the charge. The appeal was accordingly dismissed.
In a further appeal to this Court, the Appellants originally filed one omnibus ground; but their learned Counsel was given leave to file and argue three additional grounds.
Those new grounds raise the following issues:
(a) that the onus to prove the case against the Appellants beyond all reasonable doubt, was not discharged by the prosecution;
(b) that there were obvious contradictions in the testimonies of same prosecution witnesses; and that those contradictions were not resolved in favour of the Appellants;
(c) that there was no evidence to prove that the gun-shot wounds allegedly found on the 1st and 4th prosecution witness came from the firearm allegedly recovered from the house of the 2nd Appellant; or that the bullets extracted from their bodies were capable of being fired from the guns recovered from the Appellants;
(d) that no proper and fair identification parade of the Appellants was carried out, in that the Appellants’ pictures had already been published in the newspapers before they were identified at the parade by P.W.1.
Apart from possibly the first issue, none of the other issues was raised by the Appellants at the Court of Appeal so as to enable that court to consider and decide upon them. Moreover, as I have already indicated in this judgment, those issues which were issues of mixed law and fact had been thoroughly and meticulously considered at the trial.
However, in the interest of justice and because the offence carries a death penalty, learned counsel for the Appellants was allowed to argue those issues; and having done so, we found his submissions very unconvincing. We therefore found the appeal to be devoid of any merit and it was for those reasons that it was dismissed on the 9th October, 1985; and the convictions and sentences passed on the Appellants were confirmed.
Be that as it may, I think it is necessary again to re-emphasize that this Court essentially deals with appeal on issues of law only even though under Section 213(3) of the Constitution of the Federal Republic of Nigeria 1979 as Amended, grounds of mixed law and facts or of facts simpliciter may in certain cases be allowed to be argued by leave of the Court of Appeal or of this Court. For this reason, it is therefore important to stress that issues which come within the ambit of Section 213(3) of the Constitution should have first been raised at both the trial court and the Court of Appeal before if at all, they are again raised in this Court. If that is not done or if it is considered that those issues have been exhaustively dealt with by those courts, this Court will be compelled to refuse leave for such issues to be raised again and canvassed in this Court. Learned Counsel for the Appellants are therefore well-advised to desist from raising again in this Court issues of facts or mixed law and facts which have either not been raised at all or if raised been adequately considered and dealt with in the lower courts.
K. ESO, J.S.C. (Presiding): My learned brother, Kareem, J.S.C., has in the Reasons for judgment just read, fully stated the background to this appeal and I agree with the reasons he has given. There was no merit whatsoever in the appeal before us and it was only because the appeal is in regard to an offence which carried a death penalty that we allowed the issues raised before us to be canvassed.
The issues which are all matters of facts or mixed law and facts, as regards contradictions in the testimonies of the prosecution witnesses, non-evidence in regard to the fatal gun shots and identification of the prisoners were not even raised in the Court of Appeal. There was only one ground of appeal that relates to law and that deals with the discharge of onus of proof but even then, one would still have recourse to the facts.
The appellant no doubt has right of appeal to this Court without leave under s.213(2)(d) of the Constitution of the Federal Republic of Nigeria 1979 which provides for appeal to this Court from the Court of Appeal as of right in-
“decisions in any criminal proceedings in which any person has been sentenced to death by the Court of Appeal or the Court of Appeal has of firmed a sentence of death imposed by any other court.”
but as my learned brother Kazeem, J.S.C., has said, and I am in full agreement, it is essential that matters dealing with law and mixed law and facts ought to have been raised in the Court of Appeal for this Court to appreciate whether the treatment thereof by that court is right or wrong. The Supreme Court is never and shall never be used as a Court of facts raised in the first instance.
For these reasons, and the reasons given in greater detail by my learned brother Kazeem, J.S.C., I dismissed the appeal and affirmed the judgment of the High Court and the Court of Appeal.
A. NNAMANI, J.S.C.: On the 9th October, 1985 when this appeal came before this Court, I dismissed it and of firmed the conviction and sentence passed on the appellants. I indicated that I would give my reason for this judgment today which I now do.
After reading the records of appeal then, I was satisfied as I am still, that there is no merit in the appeal. This was the case in which the appellants robbed Fateru Motors, Ilesha. They stole N109 found in a locker in the office of the P. W.6. In the course of that robbery, one of the appellants shot the P.W.1 on stomach, chest and side. He was shot at the request of the 2nd appellant who P.W.1 observed had a deformed leg. Another guard, P.W.2 was shot near the eye. The bullet passed through his cheek and shoulder and he was left unconscious in his own blood The appellants were later identified by the P.W.1 at an identification parade. The appellants raised various defences including a plea of alibi by 2nd appellant. It is also pertinent to mention that the appellants through their contact with P.W.7 were apprehended while preparing to rob a construction firm of the salaries of its workers. On 2nd appellant’s car being searched, the police recovered pistols, cartridges and live ammunition as well as spanners, hammer and masks etc. The learned trial judge exhaustively reviewed the evidence before him, and after considering this evidence and all the defences raised by the appellants, found all four of them guilty.
The Court of Appeal upheld all the findings of fact made by the learned trial judge. In effect what were before this Court were concurrent findings of fact by the two courts and there is nothing that persuades me that this court should interfere. The only point of law canvassed before the Court of Appeal was that the charge was defective as it did not name an owner of the stolen property. The Court of Appeal adequately dealt with this relying on Section 154(1) of the Criminal Procedure Ordinance Cap. 432 Laws of Nigeria and Queen v. Michael Elechi (1958) 3 F.S.C.17
Before this Court, Mr. Aiyedun, learned counsel to the appellants argued only one ground of appeal, grounds 1 and 2 of his grounds of appeal having been struck out. That ground of appeal dealt completely with facts.
Indeed it was to draw attention to the impropriety of counsel adopting this stone in this court that it became necessary to send down reason for the judgment of 9th October, 1985. In this connection, I had a preview of the lead reasons for judgment just delivered by my learned brother, Kazeem, J.S.C. He dealt fully with this matter and I entirely agree with his reasoning. It seems strange to me too that learned counsel would inflict this Court with argument on issues of fact when there are concurrent findings of two lower courts. The situation is made worse when learned counsel did not comply with Section 213(3) of the Constitution. Counsel was indeed allowed to argue this ground of appeal only in the interest of justice. It was for these reasons, and for the more detailed reasons given by Kazeem, J.S. C, that I dismissed this appeal.
A. G. KARIBI-WHYTE, J.S.C.: I have had the privilege of reading the reasons given in the judgment of my learned brother Kazeem J.S.C. in this appeal. I agree entirely with the reasoning and the conclusion. On the 9th October, 1985 I dismissed this appeal and indicated that I will give my reasons today.
This is an appeal against the judgment of the Court of Appeal, dated 5th July, 1984. The four Appellants were charged before the High Court, Ilesha on 16th March, 1983 and convicted for the offence of Armed Robbery, contrary to Section 1(2)(a) of the Robbery and Fireams (Special Provisions) Act No.47 of 1970 as amended by an Act of the same name No.8 of 1974. They were all convicted of the offence and sentenced to death on the 13th July, 1983. Their appeal to the Court of Appeal was dismissed on the 5th July, 1984.
My learned brother Kazeem J.S.C. has stated the facts exhaustively. I adopt his statement of the facts. The learned trial judge was satisfied on the evidence before him that there was a robbery with arms at Faseru Motors, Ilesa, in the early hours of the 23rd November, 1981. That appellants were among the persons who committed the robbery, and that the sum of N109 was stolen from Faseru Motors in consequence of this robbery.
At the trial, the learned trial judge rejected the defences of appellants that they were not properly identified because, as they argued, the identification parade was improperly conducted. Their defence of contradictions in the evidence of the prosecution witnesses was also rejected on the ground that the contradictions were not material. Finally, the alibi pleaded by the 2nd appellant was found to be false since the alibi related to an earlier date, namely, 22/11/81 as against 23/11/81 which was the date when the offence was committed. The learned trial judge found that appellants were properly identified as those who took part in the robbery.
In the Court of Appeal, appellants relied on other ground for attacking the correctness of the judgment of the learned trial judge. The main issue raised on appeal was whether a charge which did not allege and prove the ownership of the person and goods robbed was not defective. The Court of Appeal rejected the submission and relied on R. v. Elechi (1958) 3 FSC.17, to hold that the provisions of section 154(1) of the Criminal Procedure Act is satisfied if the property referred to in the charge was described with sufficient clarity if the owner of the property is named. The ownership of the property in this case was clearly stated and appellants were not misled or embarrassed in their defence.
In this Court, Appellant abandoned all the grounds raised and argued in the Court of Appeal. Appellants filed without leave of this court three additional grounds of appeal which are as follows –
ADDITIONAL GROUNDS OF APPEAL
“I. The Learned Justices of Appeal erred in law by upholding the judgment of the Learned Trial Judge who convicted the Appellants upon circumstantial evidence alone.
2. The learned Justices of Appeal erred in law by upholding the decision of the trial learned Judge when he failed to resolve the material contradictions and inconsistencies in the evidence of the prosecution witnesses and yet proceeded to convict the appellants on the evidence.
3. The Learned Justices of Appeal erred in law by upholding the decision of the Learned Trial judge when he convicted the Appellants when the prosecution failed to establish their case in accordance with the standard required by law in criminal cases.
PARTICULARS
(a). The evidence relied upon by the prosecution were particularly those of the 1st P.W., 4th P.W. and 7th P.W., who relied in the alleged statement by the Appellants that they were armed robbers who robbed Faseru Motors, Ilesa. Also relied upon were the exhibits pistol, matchets and sawn of double barrel shot-gun and the identification by the 1st P.W. of the appellants at the parade.
(b). The 4th P.W. in his statement to the police (when the incident was fresh in his memory) impliedly admitted that the premises of Faseru Motors, Ilesa was not flooded with light when he said on oath in evidence in Court that as he tried to put on the lights someone ordered him to get back and that the intruder painted up his face in disguise. The 1st P.W. however in his own evidence admitted that he was looking for his torch- light to see the direction where a sound came from, impliedly admitted that the place was not illuminated. The 1st P.W. however said he was able to see the faces of the appellants very well.
(c). The prosecution’s case will stand or fall on the evidence identification of the appellants during the identification parade. There was no shred of evidence to prove that the bullets extracted from the body of the 1st P.W. were fired by any of the firearm exhibits.”
On examination of these grounds, it is clear that grounds 1 and 2 contain mixed law and fact. This is without doubt a contravention of s.213(3) of the Constitution 1979.
It is obvious that grounds 1 and 2 of the additional grounds of appeal were issues canvassed and rejected in the trial court, and not raised in the Court of Appeal. They are therefore issues deemed to have been abandoned by the appellant in the Court of Appeal- Furthermore since this is an appeal from the judgment of the court below, this Court is entitled to expect a consideration of the issues and the benefit of the opinion of the court below. See United Marketing Co. v. Kara (1963) 2 ALL E. R. 553. It is not legitimate for this Court to decide an appeal on any of the issues which has not been considered by the Court below. However, where the ground of appeal relied upon is an issue of jurisdiction as in Shobogun v. Sanni & Ors. (1974) 1 All N.L.R. (Pt.2)p.311, Ajao v. Sonola (1973)5 S.C. 119 this Court can take the ground of appeal.
In this appeal, despite the fact that the appeal lacked merit we heard counsel on all the additional grounds filed. I am satisfied that grounds 1 and 2 as being grounds of appeal based on concurrent findings of facts in the two courts below, and as there were no exceptional reasons for interfering with the findings they must be allowed to stand.
There is no substance in ground 3 which challenges the judgment on the ground of the burden of proof required in criminal cases. I am satisfied that on the evidence before the learned trial judge there was sufficient evidence upon which he could convict all the appellants. The prosecution established the guilt of the appellants beyond reasonable doubt.
These are my reasons for dismissing the appeal on the 9th October, 1985.
S. KAWU, J.S.C.: On the 9th day of October, 1985, having heard counsel’s submissions, we dismissed the appeal and confirmed the appellants’ convictions and the sentence passed on them. We then indicated that we would, today, give our reasons for doing so.
I have had the advantage of reading, in draft, the reasons for judgment just delivered by my learned brother, Kazeem, J.S.C. and it was for those reasons that I dismissed the appeal on 9th October, 1985.
Appeal dismissed
Conviction and death
sentence confirmed.
Appearances
Akin Aiyedun, Esq. For Appellant
AND
Dr. (Mrs.) Olateru-Olagbegi, Deputy Director of Public Prosecutions, Oyo State For Respondent
