ADAMU v. STATE & ANOR
(2022)LCN/15992(CA)
In the Court of Appeal
(YOLA JUDICIAL DIVISION)
On Tuesday, March 29, 2022
CA/YL/111C/21
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Mohammed Lawal Abubakar Justice of the Court of Appeal
Between
GEOFREY ADAMU APPELANT(S)
And
1. THE STATE 2. BELLO ADAMU RESPONDENT(S)
RATIO
THE POSITION OF LAW ON AN OBJECTION TO THE COMPETENCE OF AN APPEAL
An objection to the competence of an appeal is to dispose of the entire appeal but, where an objection is merely challenging the competence of some of the grounds of Appeal and not the competence of the entire appeal, there is a procedure laid down for a valid challenge of a few grounds. In the instant case, only grounds 1 and 2 are challenged. The procedure is to come by way of a motion on notice urging that the incompetent grounds be struck out. The application should show the grounds for the application, affidavit in support and the argument which could be raised in the Respondent/Objector’s brief of argument, previously pursuant to Order 6, Rule 3 of the Court of Appeal Rules, 2011 and by the new Rules of this Court, pursuant to Order 6 Rule 1 of the Court of Appeal Rules, 2021 now requiring that addresses/argument be filed with the motion which the Appellant would also respond to in a written form. See ADEJUMO VS. OLAWAIYE (2014) 12 NWLR (PT. 1421) 252 at 265, OKEREKE & ANOR VS. ADIELE (2014) LPELR – 24103 (CA) PP. 8 – 11, PARAS. D – E, NEPA VS. ANGO (2001) LPELR – 5933 (CA) PP. 5 – 7, PARAS. D – A and WOWEM VS. STATE (2021) LPELR – 53384 (SC) P. 9, PARAS. B – E, DAUDA VS. FRN (2018) 10 NWLR (PT. 1626) 169, N.C.C. VS. MOTOPHONE LTD (2019) 14 NWLR (1691) 1 at 24 – 25, PARAGRAPHS H – B and IKPA VS. UPPER AREA COURT, OTUKPO & ANOR (2020) LPELR – 50233 (CA) PP. 21 – 23, PARA. E. PER UWA, J.C.A.
THE PROCEDURE OF THE TRIAL COURT DURING ARRAIGNMENT
It is trite that the procedure during arraignment is for the trial Court to record the name of the interpreter who read, interpreted and explained the charge to the accused person but, the failure or omission to reflect same in the record of proceedings is not always fatal to the proceedings so as to render the proceedings a nullity, it depends on the circumstances. Each case must be examined on its surrounding or peculiar circumstances, if the arraignment was carried out in a manner that is substantially regular, the procedure would remain valid. In such a situation, it would be presumed that the action of the Court has been done correctly and regularly until it is proved otherwise. Section 168 (1) of the Evidence Act, 2011 provides thus:
168 (1) “When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.”
See SHITTA-BEY VS. AG FEDERATION & ANOR (1998) LPELR – 3055 (SC) PP. 54 – 55, PARAS. D – F, ONDO STATE UNIVERSITY & ANOR VS. FOLAYAN (1994) LPELR – 2673 (SC) P. 34, PARAS. E – G, MAMONU & ANOR VS. DIKAT & ORS. (2019) LPELR – 46560 (SC) P. 61, PARAS. C – E and ESSEYIN VS. STATE (2018) LPELR – 44476 (SC) PP. 24 – 25, PARAS. E – A. PER UWA, J.C.A.
WHETHER OR NOT IT IS THE DUTY OF THE ACCUSED PERSON OR HIS COUNSEL ACTING ON HIS BEHALF TO BRING TO THE NOTICE OF THE COURT THE FACT THAT THE ACCUSED PERSON DOES NOT UNDERSTAND THE ENGLISH LANGUAGE
Further, it is the duty of the accused person or his counsel acting on his behalf to bring to the notice of the Court the fact that he does not understand the English Language in which the trial is being conducted otherwise, it would be assumed that he has no cause to complain. See ADENIJI VS. STATE (2001) FWLR (PT. 57) 809 – 817, FRANCES DURWODE VS. THE STATE (2000) 82 LR N 3038 at 3065; (2007) FWLR (PT. 36) 950 at 971 – 972. On the other hand, even though an accused person may opt to speak in a language other than English which is the language of the Court but, understands and can speak English but, chooses not to testify in English Language either as a matter of preference or is more confident in that other language to avoid grammatical errors or fear and aura of the Court. Where the accused person does not understand the language in which the trial is being conducted, it is a fact known to the accused person and it is for him or his counsel to bring this fact to the Notice of the Court at the earliest opportunity once the proceedings begin, it is his right. Where he does not claim the right at the proper time, he may not be able to complain afterwards on appeal, the complaint would be unfruitful. See MALLAM MADU VS. THE STATE (1997) 1 NWLR (PT. 482) 306 at 402 and SABINA CHIKAODI MADU VS. THE STATE (2012) 15 NWLR (PT. 1324) 405; LPELR 7867; (2013) 21 LRCN (PT. 1) 224. PER UWA, J.C.A.
THE PRESUMPTION OF THE INNOCENCE OF AN ACCUSED PERSON UNTIL THE CONTRARY IS PROVEN
The elementary principle of law is that an accused person charged with a crime is presumed innocent until the contrary is proved and the burden is on the prosecution to prove same beyond reasonable doubt in line with Section 36(5) of the Constitution (as amended) and Section 135 (1) of the Evidence Act, 2011. Proof does not entail beyond all doubt. Proof beyond reasonable doubt is when the facts and circumstances of the case with the quality of the evidence adduced is compelling and reliable to establish the guilt of the accused person. There must be a high degree of probability that the accused person committed the offence, the standard is that of a reasonable man and the doubt also of a reasonable man. The proof is not based on the number of witnesses fielded by the prosecution; the important thing is the quality of the evidence adduced as long as corroboration is not required in proof of the particular charge. See EGWUMI VS. STATE (2013) 2 SC (PT. 111) P. 119, ISAH VS. THE STATE (2017), LPELR – 43472 (SC) PP. 16 – 17, PARAS. F – D, OJO VS. FALAIYE (1961) LPELR – 25078 (SC), OGUNDIYAN VS. THE STATE (1991) LPELR – 2333 (SC) P. 13, PARAS. A – D, OKORO VS. STATE (1988) LPELR – 2494 (SC) PP. 7 – 8, PARAS. D – A, ABOKOKUYANRO VS. STATE (2016) LPELR – 40107 (SC) PP. 8 – 9, PARAS. E – D; PAGES 33 – 34, PARAS. E – A and AKALEZI VS. STATE (1993) 2 NWLR (PT. 273) PAGE 1. While the 1st Respondent made out that the prosecution proved its case beyond reasonable doubt the learned counsel to the Appellant argued that she did not. The burden then shifts to the accused person to prove that the prosecution did not prove her case beyond reasonable doubt. PER UWA, J.C.A.
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the High Court of Taraba State, presided over by J.Y. Tuktur, C.J. (as he then was) delivered on 15th day of November, 2016 (hereafter referred to as the trial Court) wherein the Appellant was convicted of Criminal Conspiracy, House Trespass and Culpable Homicide under Sections 97(1), 394 and 221(a) of the Penal Code respectively.
The Appellant who was dissatisfied with the said judgment filed his Notice of Appeal containing five (5) Grounds.
The background facts are that the Appellant and one Bello Adamu were arraigned before the trial Court on a three count charge as listed above on 15th May, 2014, where he pleaded “Not guilty” to all three counts when the charges were read out to him, page 23 of the printed records of appeal. At the trial, the prosecution called two witnesses in proof of her case, PW1 (Ali Yakubu) and PW2 (A.S.P.) Iorahii Zanbar, pages 30 – 31 of the records of appeal and pages 34 – 36 of the supplementary record of appeal respectively. The Appellant testified in defence with one other witness, the 2nd Respondent. At the close of the trial, the Appellant was convicted on the three count charge. The appellant who was dissatisfied with the decision of the Court, appealed to this Court. The following three issues were distilled for the determination of the appeal thus:
1. “Whether the failure of the trial Court to interpret the testimony of PW2 from English Language to Hausa Language that the Appellant speaks and understand does not amount to breach of fair hearing rendering the entire proceedings a nullity. (Distilled from grounds 1 and 2 of the Notice and Grounds of Appeal)
2. Whether the findings of the trial Court as to the commission of the offence of culpable homicide accords with the testimony of PW1 and PW2 to warrant Appellant’s conviction. (Distilled from Ground 3 of the Notice and Grounds of Appeal).
3. Whether having regard to the totality of evidence adduced by the prosecution before the trial Court, the prosecution has proved its case beyond reasonable doubt against the Appellant as to ground a conviction.” (Distilled from Grounds 4 and 5 of the Notice and Ground of Appeal)
The 1st Respondent on her part formulated the following sole issue for the determination of the appeal thus:
“WHETHER HAVING REGARDS TO THE ENTIRE CIRCUMSTANCES OF THE CASE, INCLUDING THE UNCHALLENGED TESTIMONY OF ANY EYE WITNESS, THE LEARNED TRIAL JUDGE WAS RIGHT TO HAVE CONVICTED THE APPELLANT UPON THE 3 COUNT INFORMATION PURSUANT TO WHICH HE WAS ARRAIGNED, TRIED AND CONVICTED.”
(This issue is framed from Grounds 3, 4 and 5 in the Notice of Appeal)
The 2nd Respondent did not file any brief of argument and had nothing to urge.
In arguing the appeal, the learned counsel to the Appellant, John Okezie Esq., adopted and relied on his brief of argument filed on 22/9/21 and his reply brief filed on 1/2/22 deemed properly filed and served on 2/2/22, as his argument in this appeal in urging us to allow same. We were urged to note that the 1st Respondent did not distill any issue from grounds one and two of the Notice of Appeal, to deem the grounds abandoned. In arguing his first issue, it was submitted that the failure of the trial Court to interpret the testimony of the PW2 from English to Hausa Language that the Appellant understood amounted to a breach of fair hearing. It was submitted that when the Appellant was arraigned, the records showed that the Appellant speaks Hausa Language even though no interpreter was provided for the Appellant and his fellow accused person when he took his plea, pages 23 and 24 of the printed records of appeal. It was submitted that the proceedings of the trial Court was conducted in English Language without any record to show that an interpreter was provided all through the proceedings and the judgment interpreted from English to Hausa Language. It was submitted that the trial Court relied on the evidence of the PW2, page 33 of the records to find the Appellant guilty, page 91 of the records. It was argued that an accused person who does not understand English which is the language of the Court has the right to an interpreter free of charge, reference was made to Section 36(6) (e) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) hereafter referred to as “the Constitution” and Sections 241 and 242 of the Criminal Procedure Code which provides that when evidence is given in a language not understood by the accused in Court, it should be interpreted to him in a language he understands. By the above provisions, it was submitted that it is mandatory that an interpreter be provided for an accused person in criminal proceedings where he does not understand the language of the Court. See ANYANWU VS. THE STATE (2002) 12 NWLR (PT. 783) 107, CHIKAODI MADU VS. STATE (2012) 501 NSCQR at PAGES 133 – 134 and KALU VS. STATE (2017) LPELR – 42101. The appellant’s right to have an interpreter was argued to be a Constitutional one that cannot be denied him which the record of the Court must also reflect or else, the proceedings would be a nullity. It was concluded on this issue that there was a complete breach of the Constitutional provisions relied upon when the PW2 testified in English Language without any evidence of interpretation for the Appellant’s benefit. We were urged to declare the proceedings a nullity.
In arguing issue two, it was submitted that the trial Court erroneously relied on the contradictory testimony of the PW1 to convict the Appellant whose testimony was said not to be in tandem with the cause of death of the deceased which did not link the Appellant with the assault that led to the death of the deceased. Further, that the evidence of a single witness could lead to a conviction only if it is cogent and credible. See AKINLOLU VS. STATE (2015) LPELR – 25986. The evidence of the PW1 was reviewed, pages 29 – 31 of the records of appeal to the effect that the evidence as to the cause of death of the deceased if filled with loopholes and did not point to the Appellant as the one that inflicted the injury that led to the death of the deceased. Also, that the PW1 testified that there were other people at the residence of the deceased apart from the Appellant and the 2nd Respondent. It was submitted that the identity of the other persons in the house of the deceased who allegedly jointly and severally beat up the deceased with the accused persons was not disclosed by the PW1, which created doubt in the evidence of the PW1 the eye witness. It was argued that the inferences drawn and conclusion reached by the trial Court was not supported by the evidence of the PW1 as to who beat the deceased to his death, the judgment of the trial Court was said to be liable to be set aside. It was submitted that without the identity of those who allegedly beat up the deceased with the Appellant this created doubt in the Appellant’s case. See AKPABIO VS. STATE (1994) 7 NWLR (PT. 359) SC. 695 at 670, PARAS. C – E and OKASI VS. STATE (2016) LPELR – 40454 (CA) PP. 20 – 22, PARAS. E – A.
It was submitted that the PW2 in his testimony contradicted the testimony of the PW1 under cross-examination when he testified that the deceased died instantly, page 35 of the printed records of appeal. We were once again urged to resolve the doubt created in favour of the Appellant. See MAKAAN VS. HANGEM & ORS (2018) LPELR 44401 (CA) PP. 42 – 43, PARAS. B – D and STATE VS EREYITOMI (2017) LPELR – 43573 (CA) PP. 48 – 49, PARAS. A – A. It was concluded on this issue that the trial Court ought not to have relied upon the evidence of the PW1 and PW2 which was contradictory in convicting the Appellant.
In arguing his third issue, it was submitted that the prosecution failed to prove her case beyond reasonable doubt for the Appellant to have been convicted. It was reargued that the evidence led by the prosecution is contradictory and conflicting and that the prosecution did not prove any of the essential ingredients of the offences alleged against the Appellant, reference was made to Section 135 (1) and (2) of the Evidence Act, 2011, ISIBOR VS. STATE (2002) NSC QR 248, ADEKUNLE VS. STATE (2006) 2 NCC 211, AIGBADION VS. STATE (2000) 7 NWLR (PT. 666) at 704, PARA. B and SOLOMON ADEKUNLE VS. STATE (2006) 2 NCC 211. Without conceding that the Appellant beat the deceased with a stick, there was no proof that the beating caused the death of the deceased and that the PW1 testified that the deceased was alive when he was taken to hospital and died three days later. It was also argued that the prosecution failed to tender any medical or autopsy report to confirm that the deceased’s death was caused by beating. See SOWEMIMO VS. STATE (2004) 18 NSC QR 24. It was argued that the Appellant ought to be acquitted where the ingredients of the offences charged were not proved. See SHANDE VS. STATE (2004) LPELR – 7396 (CA), P. 19, PARAS. F – G, IBRAHIM VS. STATE (2015) LPELR – 40833 (SC) PP. 23 – 27, PARAS. A – E. Further, that the Appellant in his defence denied making any statement at the office of the CID where he was forced to thumbprint a paper and denied ever seeing the PW1 and the 2nd Respondent in his life. It was argued that the Appellant raised the defence of alibi to the effect that he was at his place of work at Zing but, the 1st Respondent failed to investigate it and that there is nothing on record to show that the prosecution investigated the alibi. See BOZIN VS. STATE (1985) 2 NWLR (PT. 8) 465. It was concluded that the prosecution failed to prove its case beyond reasonable doubt.
In response, the learned counsel to the 1st Respondent M.A. Tende Esq., adopted and relied on his brief of argument filed on 17/1/22, deemed properly filed and served on 2/2/22. In the 1st Respondent’s brief of argument under paragraph 2.0 headed: STATEMENTS OF FACTS, PAGE 2 of the brief of argument, at page 5 of the brief of argument is another sub-head: “PRELIMINARY ISSUES ON THE COMPETENCE OF GROUNDS 1 AND 2 OF THE GROUNDS OF APPEAL”, argued at paragraphs 1.1 at page 5 to paragraph 1.7 at page 10 what was termed preliminary issues which supposedly challenged the competence of the Appellant’s Grounds 1 and 2 of the Grounds of Appeal before the sole issue for the determination of the appeal formulated at page 10 of the brief of argument, followed by the argument in support of the sole issue. Under the preliminary issue, it was submitted that Grounds 1 and 2 of the Notice of Appeal complained of lack of fair hearing in respect of the manner in which plea was taken by the Appellant at the lower Court, reference was made to page 25 of the printed records of appeal to the effect that the charge was read and interpreted to the Appellant and the 2nd Respondent and that each pleaded not guilty. It was submitted that the learned counsel to the Appellant at the triher al Court A.I. Jalo Esq., was present when plea was taken and neither he nor the Appellant protested in respect of not having an interpreter to translate from English Language, the language of the Court to Hausa Language understood by the Appellant. It was argued that the arraignment of the Appellant was not faulted when he took his plea. Further, that grounds 1 and 2 of the Notice of Appeal are fresh issues which did not arise from the judgment of the trial Court that culminated in this appeal. Also, that where a litigant is represented by counsel, counsel decides how his matter would be prosecuted and would be bound by the outcome of the decision. See MOSES AUGUSTINE VS. THE STATE (2021) LPELR – 52893 (CA), CHIMEREM WOWEM VS. THE STATE (2021) LPELR – 53384 (SC). It was argued that the learned counsel to the Appellant ought to have sought the leave of Court to raise the fresh issues and that the Appellant through his counsel freely elected not to canvas these new points at the trial. See NYAKO VS. ADAMAWA STATE HOUSE OF ASSEMBLY (2016) LPELR – 41822 (SC). The learned counsel to the 1st Respondent declared grounds one (1) and two (2) of the Notice of Appeal incompetent, which we were urged to strike out.
The learned counsel to the Appellant responded to the argument on the preliminary issue in his reply brief filed on 1/2/22, deemed properly filed and served on 2/2/22. It was submitted that grounds one (1) and four (4) of the Notice of Appeal challenged the validity of the Appellant’s arraignment before the trial Court and the non-compliance by the trial Court of the requirements of a valid arraignment which is that the charge be read to an accused person in a language he understands. See, MOHAMMED VS. FRN (2018) LPELR – 43908 (SC) PP. 35 – 36, PARAS. A – F. It was argued that the issue of arraignment borders on jurisdiction which goes to the foundation of the case and could be raised any time even on appeal for the first time without the leave of Court. See MUSA VS. STATE (2016) LPELR – 42802 (SC) PP. 9 – 10, PARA. C, AGBULE VS. WARRI REFINERY & PETROCHEMICAL CO. LTD (2012) LPELR – 20625 (SC), EZE VS. UNIJOS (2017) LPELR – 42345 (SC) PP. 10 – 11, PARA. B and NWABUEZE VS. THE PEOPLE OF LAGOS STATE (2018) LPELR – 44113 (SC) PP. 13 – 14 PARAS. A – A.
The 1st Respondent’s sole issue was formulated from Grounds 3, 4 and 5 of the Notice of Appeal. It was submitted that the trial Court properly evaluated the evidence adduced at the trial. Further, that every person charged with a criminal offence is presumed innocent until and unless proved to be guilty, the proof must be beyond reasonable doubt. It was submitted that the evidence of the PW1 (Ali Yakubu) an eye witness, a neighbour to the Appellant, the 2nd Respondent and the deceased was direct, cogent and uncontradicted to the effect that the Appellant and his brother Bello Adamu while armed with an iron headed stick, bow and arrow trespassed into their uncle’s house (Danladi Nygwanta) who alleged that he provoked the duo who threatened to burn down his house and that they would kill him if he did not come out, beat up the said uncle when he came out of the house in a manner that caused his death. The evidence of the PW1 was said not to have been challenged. It was argued that the trial Court properly analyzed the testimony of the PW1 before arriving at its decision; reference was made to pages 88 – 89 of the records of appeal, part of the judgment of the trial Court. It was submitted that the findings of the trial Court was not appealed against. See LADOJA VS. AJIMOBI (2016) 10 NWLR (PT. 1519) 87 at 144, B – D. Further, that the decision of the trial Court would only be interfered with if found to be perverse by this Court. See NIKAGBATSE VS. OPUYE (2010) LPELR – 4620 (CA).
It was argued that the Appellant’s learned counsel erroneously alleged that there were contradictions in the evidence of the PW1 in respect of the date when the deceased died. It was submitted that there were no contradictions in the evidence of the PW1 who gave the date of the death as 8th September, 2009 while the information as to the date of the crime stated that the incident of the crime was “on or about” the 5th day of September, 2009 which learned counsel to the 1st Respondent submitted was not contradictory but, rather, it gave room as to ascertain the actual date of the events. See AKPA VS. STATE (2006) LPELR – 7603 (CA) where the term “on or about” was explained. Further, that the evidence of the PW1 was unchallenged and uncontradicted as to the fact that the Appellant and the 2nd Respondent on 5th September, 2009, while armed with dangerous weapons with the desire to kill their uncle gave an account of what transpired at the scene with a clear intention that their beating the deceased up with a stick in the manner that they did was a likely and probable consequence of their actions. It was submitted that there is evidence that the deceased was taken to the hospital where he died on the 8th day of September, 2009. See BABARINDA & ORS VS. THE STATE (2014) VOL. 31 LRCN 124 at 158 – 159. It was argued that the trial Court was right when it found that the date of the demise of the deceased is immaterial, page 87 of the printed records of appeal.
On the defence of alibi put up by the Appellant at the stage of giving evidence, it was submitted that the alibi could not have been investigated by the prosecution, moreso the Appellant was fixed at the scene of crime by the evidence of the PW1 which was uncontradicted where an account of the role the Appellant played was given in detail. It was submitted that proof beyond reasonable doubt is construed on the basis of the facts of each case. See EBEINWE VS STATE (2011) (PT. 1) MJSC 27. The trial Court was said to have rightly found the Appellant guilty as charged with the cogent evidence against the Appellant, pages 94 – 95 of the printed records of appeal. We were urged to dismiss the appeal.
The learned counsel to the 1st Respondent under his “STATEMENTS OF FACTS” at page 2 of his brief of argument, argued from pages 5 – 10 of his brief under the heading: “PRELIMINARY ISSUES ON THE COMPETENCE OF GROUNDS 1 AND 2 OF THE GROUNDS OF APPEAL” purportedly challenged the competence of grounds one (1) and two (2) of the Appellant’s Grounds of Appeal thus leaving only grounds two (2), three (3) and four (4) as the valid grounds of Appeal. This cannot be said to be an objection properly raised. What the 1st Respondent argued does not constitute a valid challenge or objection against grounds one (1) and two (2) of the Appellant’s Notice of Appeal and the issue one distilled therefrom by the Appellant. The 1st Respondent ought to have filed a motion to raise the objection and served the appellant before he could argue same at the hearing of the appeal and/or in the brief of argument. See NWAOLISAH VS. NWABUFOH (2011) LPELR – 2115 – 1 at 52 OR (2011) 14 NWLR (PT. 1268) 600, ALARIBE VS. OKWUONU (2015) LPELR – (24297) 1 at 8 – 10, OKWUSOGU VS. OKADIGBO (2017) LPELR (42751) NDAH VS. WAYA (2017) LPELR (43357) 1 at 5 and NNPC VS. FAMFA OIL LTD (2012) NWLR (PT. 1328) 148 at 167. The Respondent failed to file any such motion as is required to challenge some of the grounds of appeal or the issue distilled therefrom. See ASHILONU & ANOR VS. OHALE & ANOR (2018) LPELR – 44267 (CA) PP. 14 – 16, PARAS. F – C and ONAFUYE & ORS V. NAOC LTD (2019) LPELR – 50913 (CA) PP. 4 – 5, PARAS. E.
Further, under the same preliminary issue in paragraph 2.0, page 5 of the 1st Respondent’s brief of argument, it was argued that the Appellant’s grounds 1 – 2 were fresh issues not decided upon by the trial Court, therefore incompetent because the appellant ought to have obtained the leave of the Court before raising such grounds and formulating an issue therefrom.
Looking at the grounds of appeal utilized by the 1st Respondent to formulate her sole issue, without a decision by this Court on the validity or otherwise of the Appellant’s grounds 1 and 2 of the grounds of appeal, the 1st Respondent discarded and did not utilize grounds 1 and 2 of the grounds of appeal in formulating any of her two issues formulated for the determination of the appeal. Grounds 1 and 2 of the Notice of appeal from which no issue was formulated by the Appellant are deemed abandoned by the 1st Respondent. See NGILARI VS. MOTHERCAT LIMITED (1999) LPELR – 1988 (SC) PP. 47 – 48, PARAS. G – B, OGUNDIYAN VS. STATE (1991) LPELR – 2333 (SC) P. 21, PARAS. B – D. ITOK VS. UDOYO (2020) LPELR – 52524 (SC) PP. 3 – 4, PARAS. E – A and AGU & ORS VS. IDU (2021) LPELR – 53317 (CA) PP. 31 – 32, PARAS. C – A. In essence, the 1st Respondent has only challenged and addressed the Appellant’s issues formulated from grounds 3, 4 and 5 and had nothing to say in respect of grounds 1 and 2 and the Appellant’s issue one formulated therefrom.
An objection to the competence of an appeal is to dispose of the entire appeal but, where an objection is merely challenging the competence of some of the grounds of Appeal and not the competence of the entire appeal, there is a procedure laid down for a valid challenge of a few grounds. In the instant case, only grounds 1 and 2 are challenged. The procedure is to come by way of a motion on notice urging that the incompetent grounds be struck out. The application should show the grounds for the application, affidavit in support and the argument which could be raised in the Respondent/Objector’s brief of argument, previously pursuant to Order 6, Rule 3 of the Court of Appeal Rules, 2011 and by the new Rules of this Court, pursuant to Order 6 Rule 1 of the Court of Appeal Rules, 2021 now requiring that addresses/argument be filed with the motion which the Appellant would also respond to in a written form. See ADEJUMO VS. OLAWAIYE (2014) 12 NWLR (PT. 1421) 252 at 265, OKEREKE & ANOR VS. ADIELE (2014) LPELR – 24103 (CA) PP. 8 – 11, PARAS. D – E, NEPA VS. ANGO (2001) LPELR – 5933 (CA) PP. 5 – 7, PARAS. D – A and WOWEM VS. STATE (2021) LPELR – 53384 (SC) P. 9, PARAS. B – E, DAUDA VS. FRN (2018) 10 NWLR (PT. 1626) 169, N.C.C. VS. MOTOPHONE LTD (2019) 14 NWLR (1691) 1 at 24 – 25, PARAGRAPHS H – B and IKPA VS. UPPER AREA COURT, OTUKPO & ANOR (2020) LPELR – 50233 (CA) PP. 21 – 23, PARA. E.
I hold that the preliminary issues or purported objection on the competence of grounds 1 and 2 of the grounds of appeal, argued under statements of fact did not properly challenge the competence of the Appellants grounds one (1) and two (2) of the Notice of Appeal, I discountenance same. It is observed that, without a decision being taken by this Court on the validity of the Appellant’s grounds one (1) and two (2) of the notice the learned counsel abandoned the said grounds and formulated no issue therefrom but, formulated the Appellant’s sole grounds from grounds 2, 3 and 4 of the Notice of Appeal. Having discountenanced the preliminary issues or the purported objection to grounds one (1) and two (2) of the notice of appeal, I would proceed to determine the appeal.
I would utilize the issues as formulated by the Appellant in the determination of the appeal. In resolution of issue one, from the records of appeal, no doubt the Appellant spoke in Hausa language, there was no interpreter on record that could have possibly interpreted the proceedings to the Appellant if the need arose. When the Appellant took his plea as well as when the PW2 testified, the records did not show that there was an interpreter used in the course of the proceedings of the day. It is true that where there is non-compliance with Section 36 (6) (e) of the Constitution (as amended) and Sections 241 and 242 of the Criminal Procedure Code, there would be a breach of the right to fair hearing of the Appellant. This is the law. Section 36 (6) (e) provides thus:
36 (6) “Every person who is charged with a Criminal Offence shall be entitled to –
(e) have, without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence.”
It is trite that the procedure during arraignment is for the trial Court to record the name of the interpreter who read, interpreted and explained the charge to the accused person but, the failure or omission to reflect same in the record of proceedings is not always fatal to the proceedings so as to render the proceedings a nullity, it depends on the circumstances. Each case must be examined on its surrounding or peculiar circumstances, if the arraignment was carried out in a manner that is substantially regular, the procedure would remain valid. In such a situation, it would be presumed that the action of the Court has been done correctly and regularly until it is proved otherwise. Section 168 (1) of the Evidence Act, 2011 provides thus:
168 (1) “When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.”
See SHITTA-BEY VS. AG FEDERATION & ANOR (1998) LPELR – 3055 (SC) PP. 54 – 55, PARAS. D – F, ONDO STATE UNIVERSITY & ANOR VS. FOLAYAN (1994) LPELR – 2673 (SC) P. 34, PARAS. E – G, MAMONU & ANOR VS. DIKAT & ORS. (2019) LPELR – 46560 (SC) P. 61, PARAS. C – E and ESSEYIN VS. STATE (2018) LPELR – 44476 (SC) PP. 24 – 25, PARAS. E – A.
On the other hand, if an interpreter was not used as shown in the records of the trial Court, by the provisions of Section 168 (1) of the Evidence Act, 2011 (as amended) as rightly argued by the learned counsel, the Appellant waived his right to have an interpreter in course of the proceedings. The Appellant was represented by learned counsel all through the proceedings; the appellant and his learned counsel did not complain about non-provision of an interpreter for the Appellant and did not raise any objection as to the non-availability or provision of one. The learned counsel to the Appellant did not make out at the trial that the Appellant could not follow the proceedings in English Language. The absence of an interpreter therefore cannot vitiate the proceedings leading to the conviction and sentence of the Appellant. In this case, Section 36 (6) of the Constitution cannot be invoked by an Appellant who was represented by learned counsel at the trial, who did not claim his right at the correct time, which is: while the proceedings were in English language and the witnesses testifying in English language.
On whether the right of an accused person to an interpreter can be invoked on appeal by the appellant who was represented by counsel at the trial as a ground for setting aside a conviction, in OLANREWAJU VS. STATE (2020) LPELR – 49569 (SC) PP. 11 – 13, PARAS. C – E, his lordship Eko, JSC held thus:
“The record ex – facie shows that the Appellant, from his arraignment to the conclusion of the trial, was represented by a counsel. The Appellant, as the 2nd Accused, testified as DW2. He testified in Yoruba language. There was no formal minute, apart from the endorsement that the charge was read and explained to all the accused persons through an interpreter before they pleaded not guilty to the allegation, that subsequently services of an interpreter were made available. The Defence Counsel, on the issue of interpretation, throughout remained mute. He like his clients, did not complain that they could not understand or follow the proceedings. The Appellant, could not sufficiently follow the proceedings at the trial raises the presumption that they waived the services of an interpreter. By that presumption, the defence thereby was not prejudiced by the lack of an interpreter, if at all. The presence of the defence counsel throughout bolsters that presumption which thus raises estoppels by conduct under Section 169 of the Evidence Act, 2004. It is also significant that this issue is being raised for the first time in this Court. The fact also reinforces the presumption of regularity under Sections 168 (1) and 169 of the Evidence Act strengthens my rejection of the argument that Appellant had suffered any prejudice by the absence ex-facie the record that no interpreter was engaged for the Appellant at the trial. It is not always fatal when the trial Court failed to reflect on the record the name of the interpreter: OLABODE VS. THE STATE (2009) 11 NWLR (PT. 1152) 279. It is also not always fatal when the record shows that at the inception an interpreter was provided, but the record does not show that subsequently such services were made available to the accused person. The proceedings, pronto, will not be vitiated thereby: FRN VS. MOHAMMAD (2014) 3 SC M 86. Each case is decided on its peculiar circumstance. The burden remains however on the accused person, as Appellant, to establish in what respect he suffered prejudice or miscarriage of justice by the fact that the record does not show that he was afforded the services of an interpreter – the rule being that not every omission or error complained of results in the decision appealed being set aside.”
See also, AKWUOBI VS. STATE (2016) LPELR – 41389 (SC) PAGES 34 – 36, PARAS. A – D, where his Lordship Sanusi, JSC in the same vane held thus:
“In the first place, it is noted by me from pages 26 to 27 of the Record that when the hearing in the case commenced by taking the plea of the accused/Appellant, he was represented by the same counsel who represented him all through, from the trial Court up to this Apex Court. When his plea was to be taken, the same counsel did not complain to the trial Court that his client did not understand English language i.e. the language of the trial Court and also did not request on his behalf, the use of an interpreter.”
In AKWUOBI’S case reliance was placed on QUEEN VS. EGUABOR (1962) 1 ALL NLR where it was held that:
“The right of an accused person to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence conferred by Section 21 (5) (e) of the Constitution of the Federation 1960 cannot be invoked on appeal by an appellant who was represented by counsel at the trial as a ground of setting aside a conviction unless he claimed the right at the proper time. . . .”
Further, it is the duty of the accused person or his counsel acting on his behalf to bring to the notice of the Court the fact that he does not understand the English Language in which the trial is being conducted otherwise, it would be assumed that he has no cause to complain. See ADENIJI VS. STATE (2001) FWLR (PT. 57) 809 – 817, FRANCES DURWODE VS. THE STATE (2000) 82 LR N 3038 at 3065; (2007) FWLR (PT. 36) 950 at 971 – 972. On the other hand, even though an accused person may opt to speak in a language other than English which is the language of the Court but, understands and can speak English but, chooses not to testify in English Language either as a matter of preference or is more confident in that other language to avoid grammatical errors or fear and aura of the Court. Where the accused person does not understand the language in which the trial is being conducted, it is a fact known to the accused person and it is for him or his counsel to bring this fact to the Notice of the Court at the earliest opportunity once the proceedings begin, it is his right. Where he does not claim the right at the proper time, he may not be able to complain afterwards on appeal, the complaint would be unfruitful. See MALLAM MADU VS. THE STATE (1997) 1 NWLR (PT. 482) 306 at 402 and SABINA CHIKAODI MADU VS. THE STATE (2012) 15 NWLR (PT. 1324) 405; LPELR 7867; (2013) 21 LRCN (PT. 1) 224.
In sum, issue one fails and is resolved against the Appellant.
I would resolve issues two and three together as both challenge the evaluation of evidence by the trial Court.
The elementary principle of law is that an accused person charged with a crime is presumed innocent until the contrary is proved and the burden is on the prosecution to prove same beyond reasonable doubt in line with Section 36(5) of the Constitution (as amended) and Section 135 (1) of the Evidence Act, 2011. Proof does not entail beyond all doubt. Proof beyond reasonable doubt is when the facts and circumstances of the case with the quality of the evidence adduced is compelling and reliable to establish the guilt of the accused person. There must be a high degree of probability that the accused person committed the offence, the standard is that of a reasonable man and the doubt also of a reasonable man. The proof is not based on the number of witnesses fielded by the prosecution; the important thing is the quality of the evidence adduced as long as corroboration is not required in proof of the particular charge. See EGWUMI VS. STATE (2013) 2 SC (PT. 111) P. 119, ISAH VS. THE STATE (2017), LPELR – 43472 (SC) PP. 16 – 17, PARAS. F – D, OJO VS. FALAIYE (1961) LPELR – 25078 (SC), OGUNDIYAN VS. THE STATE (1991) LPELR – 2333 (SC) P. 13, PARAS. A – D, OKORO VS. STATE (1988) LPELR – 2494 (SC) PP. 7 – 8, PARAS. D – A, ABOKOKUYANRO VS. STATE (2016) LPELR – 40107 (SC) PP. 8 – 9, PARAS. E – D; PAGES 33 – 34, PARAS. E – A and AKALEZI VS. STATE (1993) 2 NWLR (PT. 273) PAGE 1. While the 1st Respondent made out that the prosecution proved its case beyond reasonable doubt the learned counsel to the Appellant argued that she did not. The burden then shifts to the accused person to prove that the prosecution did not prove her case beyond reasonable doubt.
The offence of Criminal Conspiracy is said to have been committed where two or more persons have agreed to do an act which is unlawful or to do a lawful act in an illegal manner. See Section 96 of the Penal Code. It is difficult to prove by direct evidence the plot between the conspirators. The important thing is the meeting of the minds. The conspirators need not have met physically; it could be inferred from the acts or omission of the conspirators in furtherance of the offence or agreement.
To prove the offence of criminal conspiracy, the following ingredients must be satisfied:
i. There must be an agreement of two or more persons. In other words there must be a meeting of two or more minds.
ii. The persons must plan to carry out an unlawful or illegal act, which is an offence.
iii. Bare agreement to commit an offence is sufficient. Each of the accused must have participated in the conspiracy.
The conspiracy is complete if there are acts on the part of an accused person which would lead the trial Court to the conclusion that he and others were engaged in accomplishing a common goal or objective. See ADEKUNLE VS. STATE (1989) LPELR – 108 (SC) P. 22, PARAS. A – C, MORAH VS. FRN (2018) LPELR – 44054 (SC) PP. 11 – 12, PARAS. A – F and AKINLOLU VS. STATE (2017) LPELR – 42670 (SC) PP. 58 – 59, PARAS. D – A; PP. 19 – 20, PARAS. F – A.
The PW1 gave an eye witness account of what transpired at the scene on 5th September, 2009. The Appellant was fixed at the scene of the crime. The 2nd Respondent was also fixed at the scene of the crime, the acts of the Appellant and the 2nd Respondent showed a clear agreement to trespass into the house of the deceased and cause his death. The PW1, a relation of the Appellant and the deceased, a neighbour and an eye witness at page 30 of the printed records of appeal testified thus:
“On 5th September, 2009 being neighbour with Danladi, I heard the sound of cry from his house. I went there and met Bello Adamu with bow and arrow. Also Geoffrey was holding a stick which has an …… end and I met him lighting fire and saying that whoever is in the room should come out or else he will set the room on fire. I asked him what was happening; he told me that his uncle annoyed him. If he doesn’t come out he will kill him with fire. The uncle’s name is Danladi Nyawanti and was inside the room. I warned and I pushed and we were trying to come out which the uncle heard the sound of our struggle and came out. I was holding Bello then Geoffrey hit him with the stick above his eye. Then he fell down and sustained wound below the eye.
I saw that Geoffrey was beating Danladi hard. So I left Bello and went to hold Geoffrey. Danladi fell down so I went to report to the police. They accompanied me to the house and saw him lying down, they advised me to take him to the hospital where he finally gave up the ghost.”
From the evidence of the PW1, the Appellant and the 2nd Respondent on the fateful day had the intention of killing the deceased at his house. The learned counsel to the Appellant had argued that he played no role in the death of the deceased and that he only stood by with a stick but, the learned counsel did not give any explanation as to what the Appellant was doing at the scene, at the house of the deceased with a stick in the company of the 2nd Respondent who had a bow and arrow in his hands while the Appellant beat up the deceased with the stick and he fell down, he got injured above and below his eyes, the deceased was taken to the hospital where he died. The learned counsel to the Appellant did not explain why the PW1 would hold back the Appellant if he was a mere onlooker at the scene and also went to hold back the 2nd Respondent. The learned counsel to the Appellant did not explain the presence of the Appellant at the scene of crime, at the deceased’s house armed with a stick in company of the 2nd Respondent who was armed with a bow and arrow ordering the deceased to come out of his house or else they would set his house on fire, the deceased then came out and was attacked by the Appellant and the 2nd Respondent. It does not matter who hit the blow that caused the death of the deceased. The Appellant was in agreement with the 2nd Respondent to cause the death of the deceased and proceeded to successfully execute same.
Where an accused person is present at the scene of the crime not as a mere onlooker or spectator but, in furtherance of an agreement to commit a crime or with the aim of aiding or assisting the commission of the crime, his presence amounts to participation in the crime. See SALAWU VS. STATE (2014) LPELR – 24218 (SC) at 13, PARAS. A – C. The law is that for an offence of conspiracy, actual presence of the accused where the offence is committed together with another and prior abetment, in this case armed with an iron headed stick at the house of the deceased, while the 2nd Respondent had a bow and arrow with him both beat up the deceased and having earlier stated that they would kill the deceased with fire if he did not come out of his house, means full participation in the offence. See BUJE VS. STATE (1991) 4 NWLR (PT. 185) 287 at 298. The Appellant was at the scene to assist the 2nd Respondent in bringing to fruition what they both had earlier agreed upon, to kill the deceased, the appellant is equally guilty of committing the offence as much as his partner, the 2nd Respondent. See NYAM VS. STATE (1964) 1 ALL NLR 361, ONYENYE VS. STATE (2012) LPELR – 7866 (SC) at 27, A – D; NWONU VS. STATE (2020) LPELR – 50483 (CA) PP. 17 – 19, PARA. D and MBANG VS. STATE (2009) LPELR – 1852 (SC).
The evidence of the only eye witness who testified as the PW1 gave account of the threat to kill the deceased and his struggle to hold back and prevent the appellant from carrying out his plan, which he eventually did with the 2nd Respondent. The PW1 took the deceased to the hospital where he eventually died from the beating. The evidence of the PW1 was not contradicted or controverted under cross-examination. At pages 93 – 94 of the printed records of appeal the trial Court held thus:
“…as per the evidence of the PW1, from the oral statement of the accused persons that they were going to kill the deceased with fire, and that he me the (sic) the 1st accused person lighting fire, and he warned them and they went into struggle with the 1st accused, obviously to prevent him from setting the house on fire. The 2nd accused hit the deceased on his way coming out of the room, with a stick which has an iron end on his forehead near his eye as a result of which he fell down and finally died in the hospital. The facts which remained uncontradicted clearly disclosed that the accused person had a common criminal intention to do an illegal act, which was actualized as seen in the consequences of their act.”
The reasoning and conclusion arrived at by the trial Court holding that the appellant had a common criminal intention to do an illegal act which was actualized is unassailable; I am at one with the said view. The offence of criminal conspiracy was established by the prosecution at the trial and the trial Court was right to have convicted and sentenced the appellant for the said offence.
With the conviction for House Trespass under Section 349 of the Penal Code, what the prosecution had to prove are as follows:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
1. That the complainant had possession of the property in question.
2. That the property was a building, tent or vessel used as a human dwelling or any dwelling used as a place of worship or as a place for the custody of property.
3. That the accused entered into the building or having lawfully entered remained there.
4. That he did so with intent to commit an offence or to intimidate, insult or annoy the person in possession.
From the evidence of the eye witness, the PW1 which I earlier reproduced, page 30 of the printed records of appeal, the incident took place at the deceased persons dwelling house, a building. The deceased was inside his room/house when the Appellant and his brother the 2nd Respondent ordered him to come out otherwise they would set the house on fire with the deceased in it. The PW1 and the Appellant lived close by. The Appellant went to the deceased person’s premises to kill him and succeeded in doing so after intimidating and threatening him to come out of the house, and that they would set the house on fire if he failed to come out. The evidence of the PW1 is clear that the deceased was beaten up at his dwelling house by the Appellant. I have no doubt that the prosecution proved intent on the part of the Appellant who entered the dwelling house of the deceased to commit an offence, to kill him not stopping at intimidating, insulting or annoying the occupant (the deceased) which alone constitute the offence. See SPIESS VS. ONI (2016) LPELR – 40502 (SC) PP. 9 – 11, PARAS. C – D; PAGES 53 – 54, PARAS. C – F and my earlier and recent decision in GULKATHI VS. CHAMA (2021) LPELR – 53157 (CA) PP. 5 – 8, PARAS F – C where reliance was placed on ASENDE YAV & ORS VS. THE STATE (2004) LPELR – 5364 (CA) P. 8, PARAS. B – F and SINVASAMY SELVANAYAGAM VS. THE KING (1951) AC 83 at 87, 88. I hold that the prosecution proved the offence of House Trespass against the appellant beyond reasonable doubt and the trial Court rightly convicted and sentenced the Appellant for same, pages 94 – 95 of the printed records of appeal.
With the offence of Culpable Homicide under Section 221 (a) of the Penal Code, for conviction, the ingredients that must be proved are as follows:
a. That the death of a human being has actually taken place.
b. That such death has been caused by the accused and
c. That the act was done with the intention of causing death or that it was done with the intention of causing such bodily injury that death would be the probable result.
It is noteworthy that all the above three ingredients of the offence must co-exist. Where one is missing or not proved then the prosecution would have failed to discharge the burden of proof that the law places on it in order to succeed with proof of the charge. See MAIKUDI ALIYU VS. THE STATE (2013) 12 SCM (PT. 2) 195, OYAKHERE VS. STATE (2005) LPELR – 11325 (CA) PP. 18 – 19, PARAS. E – A, SANI VS. STATE (2017) LPELR – 43475 (SC) P. 51 PARAS. C – G, ISAH VS. STATE (2017) LPELR – 43472 (SC) P. 36, PARAS. B – E, UMARU VS. STATE (2020) LPELR – 50005 (CA) P. 36, PARAS. A – D, SANI VS. STATE (2020) LPELR – 51698 (CA) PP. 44 – 45, PARAS. F – C and WADA VS. STATE (2020) LPELR – 50008 (CA) P. 39, PARAS. A – D.
The evidence of the PW1 and PW2 established the ingredients of the offence of Culpable Homicide punishable with death beyond reasonable doubt against the Appellant. The PW1 gave an account of how the 2nd Respondent was armed with a bow and arrow while the Appellant was armed with a stick and invade the house of the deceased (Danladi Nyawanta) on that fateful day, 5/9/09. The PW1 gave account of how the Appellant hit the deceased with a stick on his forehead, injured his upper and lower eyes, the deceased fell down, wounded. It is in the evidence of the PW1 that after he reported the matter to the Police, he returned and still found the deceased on the ground before he was taken to the hospital where he died. There is no doubt that the deceased died. The Appellant’s learned counsel did not allege that Danladi Nyawanta is alive. With the second ingredient, there is no doubt that the acts of the Appellant and the 2nd Respondent caused the death of the deceased. Further, their acts were intended to cause death or intended to cause such injury that death would be the probable result and indeed, resulted in the death of the deceased.
The learned counsel to the Appellant had argued that a medical or autopsy report was not tendered to ascertain the cause of death of the deceased. It is trite that a medical report can be dispensed with by the Courts especially where the cause of death is glaring and also could be inferred from the surrounding circumstances. In the present appeal, the deceased was beaten up by the appellant and his partner, 2nd Respondent, the deceased fell down, he was later taken to the hospital where he died. No medical report is required to prove that he died from the beating having not recovered at an interval before his death. The PW1 gave an account of what led to the death of the deceased, even though it is desirable to have a medical report to establish the cause of death but, where it can be inferred, it can be dispensed with when the cause of death is clear. A medical report is not always necessary where there is other evidence, as in the present case, upon which the cause of death can safely be inferred to the satisfaction of the Court, the evidence of the PW1. See ONITILO VS. THE STATE (2017) LPELR – 42576 (SC) at 19, B – F, BILLE VS. THE STATE (2016) LEPLR – 40832 (SC), ALARAPE VS. THE STATE (2001) 5 NWLR (PT. 705) 79, WOWEM VS. STATE (2021) LPELR – 53384 (SC) PP. 51 – 54, PARAS. D – A, NWAOGU VS. STATE (2012) LPELR – 15420 (CA). In IDEMUDIA VS. STATE (1999) LPELR – 1418 (SC), the Apex Court stated the position of the law thus:
“It is now settled that medical evidence, though desirable in establishing the cause of death in a case of murder, it is not always essential, where the victim dies in circumstances in which there is abundant evidence of the manner of death medical evidence can be dispensed with. There is abundant evidence from eye witnesses that the appellant shot and killed Ngozi Opara instantly. Medical evidence on the circumstances of her death was clearly not essential.”
See also, BASIL AKPA VS. STATE (2008) LPELR – 368 (SC). At page 95 of the printed records of appeal, the trial Court held thus:
“From the evidence, it is clear that the accused persons nursed grievances against the deceased and that on the said date, they spared no effort to seeing that the deceased was done for and done with. I do believe (sic) the evidence of the accused persons. I am satisfied that the prosecution has proved that the killing of the deceased was unlawful and intentionally caused by the joint acts of the accused persons in the house of the deceased.”
I cannot fault the sound reasoning of the trial Court that the prosecution proved that the Appellant and his partner unlawfully, intentionally and jointly killed the deceased.
The appellant and his learned counsel made out that when he gave evidence as DW2 that he was elsewhere at Zing on 5/9/09, when the offences were committed. The evidence of the eye witness, PW1 as to what transpired at the scene was not controverted in respect of the fact that the Appellant was at the scene of the crime.
It is the law that where an accused person has been fixed at the scene of crime by credible evidence believed by the Court the defence of alibi would not avail the accused, it would fail. See STATE VS. EKANEM (2016) (SUPRA). In IDIOK VS. STATE (2008) LPELR – 1423 (SC) PP. 15 – 16, PARAS. C – B, his Lordship Ogbuagu, JSC PP. 15 – 16, PARAS. C – B stated thus:
“…The evidence of the PW4 fixed the appellant at the scene of crime, therefore his defence of alibi must fail. See the cases of ANI VS. STATE (2003) 11 NWLR (PT. 830) 142 at 172; NTAM VS. STATE (1968) NMLR 86, AKPAN VS. STATE (1991) 3 NWLR (PT. 182) 646 and ODU VS. STATE (2000) 7 NWLR (PT. 664) 283.”
See also CHUKWUNYERE VS. THE STATE (2017) LPELR – 43725 (SC) PP. 14 – 15, PARAS. D – E; P. 36, PARAS. B – E, VICTOR VS. STATE (2013) LPELR – 20749 (SC) P. 19, PARAS. C – E, EHIMIYEIN VS. STATE (2016) LPELR – 40841 (SC) PP. 18 – 19, PARAS. B – A and OPEYEMI VS. STATE (2019) LPELR – 48764 (SC) PP. 33 – 34, PARAS. E – B where his Lordship Eko, JSC restated the position of the law thus:
“…The purport of the defence of alibi is therefore, only to cast reasonable doubt on the prosecution’s case. It is demolished once the prosecution adduces sufficient evidence that fixes the accused person to the offence alleged and its scene. See NJOVENS VS. THE STATE (1973) 5 SC 15.”
See also SANMI VS. STATE (2019) LPELR – 47418 (SC) P. 30, PARAS. C – D. Further, the learned counsel to the Appellant had earlier submitted that the Appellant was only at the scene with a stick but, did not beat up the deceased or attack him in any way. This means that the learned counsel to the Appellant knew and agreed that the Appellant was at the scene of the crime on that date and time the offence was committed. It is not possible for the Appellant to have been in two places at the same time, at the scene with a stick and at the same time at Zing which is elsewhere. The defence raised by the Appellant is an afterthought and a lame one. The prosecution could not have investigated same since the Appellant had been fixed at the scene of the crime leading to the charges for which the Appellant was convicted and sentenced. I hold that the trial Court was right to have convicted and sentenced the Appellant for the offences charged. I cannot fault the evaluation of evidence done by the trial Court, Culpable Homicide was proved to have been committed by the Appellant and the trial Court was right to have held so.
In sum, issues two and three are jointly resolved against the Appellant. In the final analysis, the appeal fails and it is dismissed in its entirety.
The judgment of the trial Court in case No. TRSJ/36C/13 in respect of the Appellant is hereby affirmed. <br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
JAMILU YAMMAMA TUKUR, J.C.A.: I had the opportunity to read in advance the draft copy of the lead judgment just delivered by my learned brother, CHIDI NWAOMA UWA, JCA. I agree with the decision my learned brother arrived at in the lead judgment. I adopt the lead judgment as mine with nothing further to add.
MOHAMMED LAWAL ABUBAKAR, J.C.A.: I had the privilege of reading in draft the leading judgment delivered by my learned brother, Chidi Nwaoma Uwa, JCA in the matter. I entirely agree with the conclusion that the appeal lacks merit and therefore dismiss. The judgment of the lower Court is hereby affirm.