HOLO LANRE v. THE STATE(2018)

HOLO LANRE v. THE STATE

(2018) LCN/4715(SC)

In The Supreme Court of Nigeria

On Thursday, the 14th day of June, 2018

SC.210/2015

RATIO

EFFECT OF AN UNDISPUTED FACT

A principle of the law of evidence which now is firmly established in jurisprudence is that facts not disputed are taken as admitted and therefore need no further proof as they are no longer contentious: ODULAJA v. HADDAD (1973) 11 S.C 35; OGOLO v. FUBARA (2003) 11 N.W.L.R. (Pt. 831) 231. They are good and credible evidence that a Court of law can act or rely on, unless they are patently incredible: OKUPE v. IFEMEMBI (1974) 3 S.C. 97: OMEREGBE v. LAWANI (1980) 3 – 4 S.C. 109. The Appellant bears the duty of proving that a particular piece of evidence, especially an undisputed fact, is patently incredible and therefore unreliable. Until he discharged that burden an undisputed fact remains good and a credible fact the Court can act or rely on for any finding of fact. PER EJEMBI EKO, J.S.C.

WHEN IS AN ISSUE FOR DETERMINATION A FRESH ISSUE; ATTITUDE OF THE COURTS TO RAISING FRESH ISSUES ON APPEAL; DUTY OF AN APPELLANT WHO INTENDS TO RAISE A FRESH ISSUE ON APPEAL

An issue is a fresh issue at the appeal Court, if it was not an issue, either as a point of law or fact, that was not raised, tried, considered and pronounced upon by the Court below: SHONEKAN v. SMITH (1964) 1 ALL N.L.R. 158; AKPENE v. BARCLAYS BANK (1977) 1 S.C. 47; FADIORA v. GBADEBO (1978) 1 S.C. 219 at 247; OSINUPEBI v. SAIBU (1982) 1 S.C. 104; OKOLO v. UNION BANK OF NIGERIA LTD (1998) 2 N.W.L.R. (Pt. 539) 618. An appeal is a complaint against the ratio decidendi of the decision appealed against. That is why a ground(s) of appeal must properly relate to and connect directly with the decision on appeal: ODUNTAN v. AKIBU (2007) 7 S.C. (Pt. 2) 106; KWAJAFFA v. BANK OF THE NORTH (2000) 5 S.C. (Pt.1) 103 at 118. A ground of appeal is therefore irrelevant and incompetent if it constitutes a challenge to a non-existent or phantom decision and/or when it constitutes a challenge to a point that does not flow or arise directly from the decision M.B.N. PLC v. NWOBODO (2005) 15 N.W.L.R. (Pt. 945) 379. Appellate Courts, and this Court in particular, do not always allow an Appellant to raise and argue fresh issues or new points not raised in the Court below: ADEGOKE MOTORS v. ADESANYA (1989) 5 S.C.N.J. 80. Ordinarily, the Appellant who intends to raise a fresh issue or a new point is enjoined to seek and obtain leave to do so. Otherwise, or where no such leave was previously sought and obtained by the appellant to raise the fresh or new point canvassed in any ground of the grounds of Appeal, the said ground is incompetent and must be struck out. PER EJEMBI EKO, J.S.C

WHETHER A PARTY WHO FAILS TO BRING TO THE NOTICE OF THE TRIAL COURT THAT HE DOES NOT UNDERSTAND THE LANGUAGE IN WHICH THE TRIAL WAS CONDUCTED AT THE TRIAL CAN LATER COMPLAIN OF THE DENIAL OF HIS RIGHT TO AN INTERPRETED ON APPEAL

Ground 1, on which the Appellant’s issue 1 is predicated is not a ground or complaint validly and directly arising from the decision of the Lower Court. At the Court of Appeal, the Appellant never complained that his trial, including his conviction and sentence, was “irregular, unconstitutional, null and void” on the ground that the evidence of the prosecution witnesses, some of which were in Yoruba Language and others in English Language, as he is now complaining in ground 1 of his grounds of appeal. The issue he has now raised out of the ground 1 is – Whether the Court of Appeal was right in uuholding the conviction and sentence of the Appellant by the trial Court despite the abundant Proofs in the record that the trial proceedings were not interpreted to the illiterate Appellant (who could not speak or understand English Language) as mandatorily required by law. The misconception, inherent in this issue, is that the Appellant expects the Lower Court to behave like Don Quixote, the Knight Errant, who went about the country side seeking to fight the cause of justice in respect of which he was not invited. The Lower Court is a Court “established by law and constituted in such a manner as to secure its independence and impartiality.” Its neutrality or impartiality enjoins it, under Section 36(1) of the Constitution, to consider only the issues or complaints laid before it for adjudication. It accordingly did no wrong to the parties herein, particularly the Appellant, by refusing or declining to enter into the arena to do for a party a case it was not invited to do. The Appellant cannot complain that the Lower Court did not raise, suo motu, the issue of there being no interpretation of the proceedings from English to Yoruba Languages. Section 36(6)(e) of the Constitution, I agree, gives to the Appellant the right, “without payment, the assistance of an interpreter if he cannot understand the language used by the Court.” That right is beneficial to the Appellant, as the accused person. It is a personal right enjoyed by him in the criminal proceedings he was defending at the trial Court. There is no evidence from the records that the Appellant, who throughout was represented by a Counsel, asked for interpreter or the interpretation of the proceedings and he was refused or denied the right. He has cited THE STATE v. GWONTO & ORS (1983) 3 S.C. 62 at 55, (the opinion of Obaseki, JSC) for his contention that his conviction and sentence are all a nullity because some aspects of the proceedings were not interpreted to him in contravention of Section 36(6(e) of the Constitution. Obaseki, JSC, at page 66 of the Report, was emphatic that an accused person can only complain that he was denied the right to interpretation if he asked for an interpreter and he was not given, in the following unambiguous terms – The need for interpretation does not arise if the accused understands the language. A fortiori, the Court will not know that he does not understand the language unless he makes representation about it to the Court or Judge. In the GWONTO case, some of the accused persons, like the instant Appellant, claimed not to understand English Language, and that they understood only Hausa Language. Like the instant Appellant, also GWONTO & ORS were represented by Counsel at the trial. Nnamani, JSC, who wrote the lead judgment in the GWONTO case, placing emphasis on the words in Section 36(6)(e) of the Constitution – IF HE CANNOT UNDERSTAND THE LANGUAGE USED AT THE TRIAL OF THE OFFENCE, stated: The right to an interpreter only arises in such circumstances. This is why it is the duty of the accused person, or his Counsel, to bring to the notice of the Court the fact that he does not understand the language in which the trial is being conducted. Unless he does, it will be assumed that he has no cause for complaint and the question of violation of his right to an interpreter will not arise. From this and other cases namely: QUEEN v. IMADEBHOR EGUABOR (1982) 1 ALL N.L.R. 287; LOCKNAN & ANOR v. THE STATE (1972) 1 ALL N.L.R. (Pt.2) 62, I should think, and I so hold, that in a criminal trial where an accused person is represented by Counsel, if objection is not taken to any irregularity with respect to interpretation, such accused person cannot later on complain that his right, to have the proceedings interpreted to him in a language he understands, had been violated. From the facts peculiar to this case, I find it hard to accept, on this issue 1, that the alleged failure to provide an interpreter to this Appellant at the trial did occasion any miscarriage of justice to him. He has not discharged the duty, incumbent on him, to show that the failure to provide him an interpreter has occasioned a miscarriage. That duty is on him: QUEEN v. EGUABOR (supra); UWAEKWEGHINYA v. THE STATE (2005) ALL F.W.L.R. (Pt. 259) 1911 at 1923 – 1924; ANTHONY OKORO v. THE STATE (2012) L.P.E.L.R. – 7846(S.C). An accused person and/or his Counsel who, at the trial, acquiesced in the irregular procedure can only complain, and his complaint upheld if he shows that his trial, conviction and sentence had occasioned a substantial miscarriage of justice to him: AJAYI & JULANDE JOS v. ZARIA N.A. (1964) N.N.L.R. 61. I find no such miscarriage of justice to this Appellant. PER EJEMBI EKO, J.S.C

WHETHER THE EVIDENCE OF IDENTIFICATION BY SOMEONE WHO KNEW THE DECEASED WHILE HE WAS ALIVE IS SUFFICIENT, IN ALL CASES, IN ESTABLISHING THE IDENTITY OF A DECEASED PERSON, WHOSE DEATH IS THE SUBJECT OF A CHARGE OF MURDER OR MANSLAUGHTER

It is submitted for the Appellant on the authority of PRINCEWILL v. THE STATE (1994) 6 N.W.L.R. (Pt. 353) at 715, per Iguh JSC, that the simplest way of establishing the identity of a deceased person, the subject of a charge of murder or manslaughter, is evidence of identification by someone who knew the deceased while he was alive. Yes, this is true. But it is not true for all purposes. It is not also sacrosanct nor is it as umbiguitious as the learned Counsel would want it to be. It is only good for as long as the accused puts or makes the identity of the deceased an issue. I had earlier pointed out that facts not disputed are taken as established and that they need no further proof for the Court to rely and act on them: ODULAJA v. HADDAD (supra); OGOLO v. FUBARA (supra); OKUPE v. IFEMEMBI (supra) OMOREGBE v. LAWANI (supra). Facts admitted or deemed to have been admitted have the same potency. They constitute the best evidence: DIN v. AFRICAN NEWSPAPERS OF NIGERIA LTD (1990) 3 N.W.L.R. (Pt. 139) 392; (1990) 21 N.S.C.C. (Pt. 2) 318. PER EJEMBI EKO, J.S.C

INSTANCES WHERE MEDICAL EVIDENCE WOULD CEASE TO BE OF ANY PRACTICAL OR LEGAL NECESSITY

This Court in OGBU v. THE STATE (1992) 10 S.C.N.J 88, (1992) N.W.L.R. (Pt. 259) 255 has re-stated the principle that medical evidence is not always essential where the victim died on the spot or in circumstances in which there is abundant evidence of the manner the victim suffered his death, as in the instant case. See also R. v. OMONI W.A.C.A 511 at 512; SALAKO v. A.G. WESTERN NIGERIA (1965) N.M.L.R. 107. The cause of the death of Adeoye Dowo, being very clear from the unchallenged evidence on the confession of the Appellant that the deceased “dropped dead” after being clobbered several times with wood by the Appellant. Thereafter his corpse was butchered and the hunch-back brutally severed there from. I should think, and I so hold firmly in my view, that the combined brutality of clobbering the deceased “with wood until he dropped dead” and the savagery of severing from his body the hunch-back without anaesthetizing him are the obvious causes of death. In the circumstance, medical evidence ceases to be of any practical or legal necessity: AMAYO v. THE STATE (2001) 12 S.C. (Pt.1) at 17 – 18; KATO DAN ADAMU v. KANO N.A. (1956) S.C.N.L.R. 65; BWASHI v. THE STATE (1965) N.M.L.R. 162. PER EJEMBI EKO, J.S.C

IMPLICATION OF THE FAILURE OF AN ADVERSARY TO CROSS-EXAMINE A WITNESS UPON ANY PARTICULAR MATTER

… as it is stated in RABIU v. THE STATE (2013) 8 N.W.L.R. (Pt. 585) where the adversary fails to cross-examine a witness upon any particular matter, the implication is that he accepts the truth of the matter and the Court will have no other option than to accept and act on the unchallenged evidence, unless the piece of evidence is itself spurious. The law, as the Respondent submits, on authority of OFORLETE v. THE STATE (2000) F.W.L.R. (Pt. 12) 2081, is that facts not controverted or challenged are deemed to have been admitted. PER EJEMBI EKO, J.S.C

JUSTICES

IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria

KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria

AMINA ADAMU AUGIE Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria

PAUL ADAMU GALINJE Justice of The Supreme Court of Nigeria

Between

HOLO LANRE Appellant(s)

AND

THE STATE Respondent(s)

EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): The Court of Appeal, sitting at Akure (Coram: Owoade, Danjuma and Abiriyi, JJCA), on 24th February, 2015 in the appeal No. CA/AK/60CA/2014, affirmed the conviction of, and sentence imposed on the Appellant for the offences of criminal conspiracy to murder, and the murder of one Adeoye Dowo (a hunch-back young man 19 years old). The said Adeoye Dowo (deceased) was until 13th January, 2012, living with his mother, Mrs. Lydia Dowo (the PW.1) a widow. The deceased slept in the same house with his mother the previous night. Early in the morning of 13th January, 2012, he went out to urinate and never returned to the house. The deceased, according to the PW.1, was an intimate friend of the 1st Accused who lived in the neighbourhood. The villagers alerted, started frantic search for the missing youngman. The PW.1 and the villagers went to the house of the 1st Accused, who was a tenant of the 2nd Accused (the Appellant herein). The 1st Accused was not found in his room or within the vicinity of his home.

Upon the lead that the deceased was seen that morning with the 1st Accused, he (the 1st Accused) was arrested. On interrogation by the Police the 1st Accused, according to the PW.2 (a Police Officer), volunteered to take the Police and the villagers “to where the deceased was tied to a tree very close to Oniparaga village along Lagos/Ore expressway.” He led the team to the particular spot in the bush where the butchered corpse of the deceased was found. His hunch-back had been removed therefrom.

The 1st Accused, in his narration to the Police, mentioned the other persons (including the Appellant) who were party to the conspiracy and the murder of Adeoye Dowo (the deceased). The Appellant was arrested by the youths in Ore and brought to the Police Station at Ore.

The PW.3, an Inspector of police attached to the State C.I.D Headquarters, testified that he read over the 1st Accused’s confessional statement, in Exhibit A6, to the Appellant (the 2nd Accused) and that the Appellant, also confessing to the conspiracy to murder the deceased and the said murder of the deceased, further made Exhibit A7 voluntarily. PW.3 further testified that –

The 1st Accused, followed by the 2nd Accused (herein the Appellant) led us to a bush about 1/2 kilometer to the Express (way). Because the corpse had been removed to the mortuary by the Police at Ore, the accused persons showed us a tree where Adeoye Dowo, male 19 Years old student of one Secondary School in Ago Alaye, was tied. They said after tying the deceased against the tree, the 1st accused person and Dayo Araromi left the Place to buy schnapps and cigarette while Lanre (the Appellant herein) and Olodu were left behind to watch over the deceased in the bush. When they came back, (they) together with Lanre (the Appellant) started hitting the boy with wood until he dropped dead and Dayo started cutting the hunch-back. After removing the hunch-back, it was put in one custard plastic.
This piece of evidence, hostile as it is to the case of the Appellant, and establishing prima facie the involvement of the Appellant in the alleged conspiracy to commit murder, and the murder of Adeoye Dowo (the deceased), was not in any way subjected to cross-examination either to challenge it or discredit the PW.3 on it. A principle of the law of evidence which now is firmly established in jurisprudence is that facts

not disputed are taken as admitted and therefore need no further proof as they are no longer contentious: ODULAJA v. HADDAD (1973) 11 S.C 35; OGOLO v. FUBARA (2003) 11 N.W.L.R. (Pt. 831) 231. They are good and credible evidence that a Court of law can act or rely on, unless they are patently incredible: OKUPE v. IFEMEMBI (1974) 3 S.C. 97: OMOREGBE v. LAWANI(1980) 3 – 4 S.C. 109. The Appellant bears the duty of proving that a particular piece of evidence, especially an undisputed fact, is patently incredible and therefore unreliable. Until he discharged that burden an undisputed fact remains good and a credible fact the Court can act or rely on for any finding of fact.

The Appellant made two extra-judicial statements, Exhibits A5 and A7. Both are confessional and inculpatory. Exhibit A5, dated 17th January, 2012, to the PW.2, an Investigating Police Officer (I.P.O), was at page 23 of the record, tendered and admitted in evidence without objection. The statement is confessional and verily self-incriminating. The trial Court (Akeredolu, J., as she then was) relying on Exhibit A5 and other pieces of evidence particularly the testimonies of

PW.2, PW.3, PW.4 and PW.s, after thorough evaluation of the totality of the evidence available, found (particularly from pages 107 to 112 of the Record) as of fact that the prosecution had proved beyond reasonable doubt the guilt of the Appellant, as the 2nd Accused, in respect of the offences of criminal conspiracy and murder preferred against him. He was accordingly sentenced to death. His appeal to the Lower Court, argued on four (4) issues, was dismissed in its entirety. The four (4) issues argued at the Lower Court were all issues of facts.

The Lower Court, in dismissing the Appellant’s appeal, found inter alia that –
1. That the trial Judge has meticulously considered all the facts disclosed by evidence properly led and has come to the irresistible conclusion as he did. The judgment remains unimpeachable as there has been proper evaluation of evidence and the trial Court taking advantage of the benefit of observing the demeanour of witnesses who testified – (page 194).
2. Generally, the onus is on the Appellant to satisfy the appellate Court that the decision appealed was wrongly decided – (page 194).

(In the instant case), the prosecution does not rely on a confessional statement alone, but the chain of other unbroken evidence was conclusive and strengthened the evidence of the involvement of the Appellant in the charges – (page 194).
4. The person that the Appellant saw, being led into the bush, but kept or maintained a deadening silence upon the making good of the promise of N100,000.00 to him by the captors was later found dead! Butchered on a stake! That the death was a result of the concerted act of his captors is obvious—- From the act of the Appellant, conspiracy could be interred (page 194).
5. The overwhelming evidence of the prosecution witnesses, the PW.1 lost her only child, Adeoye Dowo, a hunch-back to the capriciousness and murderous intent and action of the 4 persons that were charged among whom was the Appellant herein, as proved (page 193).
6. The conduct of the Appellant was such that suggested conspiracy in respect of the offence that was consummated. That the 1st accused and 2nd accused/Appellant herein were together in the car, wherein they were with their victim, is discernible from their respective statements (Page 195).

The learned trial Judge did an expertly evaluation in knitting the evidence or statement of DW’1 to the evidence of Prosecution witnesses. All cumulatively proved the offences charged.It is against this judgment that the Appellant has further appealed on four grounds of appeal. The Respondent, the prosecution challenges in the Notice of Preliminary Objection, the competence of grounds 1, 3, & 4 of the Notice of Appeal “for gross incompetence”, the grounds having not arisen “from the judgment of the Court of Appeal and same not being an issue for determination before the Lower Court.”I have painstakingly perused the decision of the trial Court on which the Appellant’s appeal to the Lower Court was predicated. The four (4) grounds of appeal contained in the Notice of Appeal against the decision of the trial Court that was filed on 3rd December, 2013 does not raise any issue that the entire proceedings of the trial Court contravened the fair hearing provisions of the 1999 Constitution, as amended, on the grounds that “the trial Court failed to interpret or employ an interpreter to interpret the entire proceedings to the Appellant who does not understand or

speak English” language. No such issue was raised at the Lower Court, and no such issue was decided by the Lower Court. Clearly therefore, this issue now being canvassed in ground 1, of the grounds of Appeal is a fresh issue, which never arose from the decision appealed.
An issue is a fresh issue at the appeal Court, if it was not an issue, either as a point of law or fact, that was not raised, tried, considered and pronounced upon by the Court below: SHONEKAN v. SMITH (1964) 1 ALL N.L.R. 158; AKPENE v. BARCLAYS BANK (1977) 1 S.C. 47; FADIORA v. GBADEBO (1978) 1 S.C. 219 at 247; OSINUPEBI v. SAIBU (1982) 1 S.C. 104; OKOLO v. UNION BANK OF NIGERIA LTD (1998) 2 N.W.L.R. (Pt. 539) 618. An appeal is a complaint against the ratio decidendi of the decision appealed against. That is why a ground(s) of appeal must properly relate to and connect directly with the decision on appeal: ODUNTAN v. AKIBU (2007) 7 S.C. (Pt. 2) 106; KWAJAFFA v. BANK OF THE NORTH (2000) 5 S.C. (Pt.1) 103 at 118. A ground of appeal is therefore irrelevant and incompetent if it constitutes a challenge to a non-existent or phantom decision and/or when it constitutes a challenge to

a point that does not flow or arise directly from the decision M.B.N. PLC v. NWOBODO (2005) 15 N.W.L.R. (Pt. 945) 379.
Appellate Courts, and this Court in particular, do not always allow an Appellant to raise and argue fresh issues or new points not raised in the Court below: ADEGOKE MOTORS v. ADESANYA (1989) 5 S.C.N.J. 80. Ordinarily, the Appellant who intends to raise a fresh issue or a new point is enjoined to seek and obtain leave to do so. Otherwise, or where no such leave was previously sought and obtained by the appellant to raise the fresh or new point canvassed in any ground of the grounds of Appeal, the said ground is incompetent and must be struck out.
Notwithstanding the fact that issue 1, formulated from ground 1 of the Appellant’s ground of appeal, is a fresh issue and being an issue that never arose at the Lower Court, I will still give it a consideration. It has to be borne in mind that this Court has no jurisdiction, under Section 233 of the 1999 Constitution, as amended, to hear appeals directly from the trial High Court. Subsection (1) of Section 233 of the Constitution puts it beyond doubt that the appellate

jurisdiction of this Court is only “to the exclusion of any other Court in Nigeria, to hear and determine appeals from the Court of Appeal.” Ground 1, on which the Appellant’s issue 1 is predicated is not a ground or complaint validly and directly arising from the decision of the Lower Court.
At the Court of Appeal, the Appellant never complained that his trial, including his conviction and sentence, was “irregular, unconstitutional, null and void” on the ground that the evidence of the prosecution witnesses, some of which were in Yoruba Language and others in English Language, as he is now complaining in ground 1 of his grounds of appeal. The issue he has now raised out of the ground 1 is –
Whether the Court of Appeal was right in upholding the conviction and sentence of the Appellant by the trial Court despite the abundant Proofs in the record that the trial proceedings were not interpreted to the illiterate Appellant (who could not speak or understand English Language) as mandatorily required by law.
The misconception, inherent in this issue, is that the Appellant expects the Lower Court to behave like Don Quixote, the Knight Errant, who went about the country side

seeking to fight the cause of justice in respect of which he was not invited. The Lower Court is a Court “established by law and constituted in such a manner as to secure its independence and impartiality.” Its neutrality or impartiality enjoins it, under Section 36(1) of the Constitution, to consider only the issues or complaints laid before it for adjudication. It accordingly did no wrong to the parties herein, particularly the Appellant, by refusing or declining to enter into the arena to do for a party a case it was not invited to do. The Appellant cannot complain that the Lower Court did not raise, suo motu, the issue of there being no interpretation of the proceedings from English to Yoruba Languages.
Section 36(6)(e) of the Constitution, I agree, gives to the Appellant the right, “without payment, the assistance of an interpreter if he cannot understand the language used by the Court.” That right is beneficial to the Appellant, as the accused person. It is a personal right enjoyed by him in the criminal proceedings he was defending at the trial Court. There is no evidence from the records that the Appellant, who throughout was represented by

a Counsel, asked for interpreter or the interpretation of the proceedings and he was refused or denied the right. He has cited THE STATE v. GWONTO & ORS (1983) 3 S.C. 62 at 55, (the opinion of Obaseki, JSC) for his contention that his conviction and sentence are all a nullity because some aspects of the proceedings were not interpreted to him in contravention of Section 36(6(e) of the Constitution. Obaseki, JSC, at page 66 of the Report, was emphatic that an accused person can only complain that he was denied the right to interpretation if he asked for an interpreter and he was not given, in the following unambiguous terms –
The need for interpretation does not arise if the accused understands the language. A fortiori, the Court will not know that he does not understand the language unless he makes representation about it to the Court or Judge.
In the GWONTO case, some of the accused persons, like the instant Appellant, claimed not to understand English Language, and that they understood only Hausa Language. Like the instant Appellant, also GWONTO & ORS were represented by Counsel at the trial.

Nnamani, JSC, who wrote the lead judgment in the GWONTO case, placing emphasis on the words in Section 36(6)(e) of the Constitution – IF HE CANNOT UNDERSTAND THE LANGUAGE USED AT THE TRIAL OF THE OFFENCE, stated:
The right to an interpreter only arises in such circumstances. This is why it is the duty of the accused person, or his Counsel, to bring to the notice of the Court the fact that he does not understand the language in which the trial is being conducted. Unless he does, it will be assumed that he has no cause for complaint and the question of violation of his right to an interpreter will not arise.
From this and other cases namely: QUEEN v. IMADEBHOR EGUABOR (1962) 1 ALL N.L.R. 287; LOCKNAN & ANOR v. THE STATE (1972) 1 ALL N.L.R. (Pt.2) 62, I should think, and I so hold, that in a criminal trial where an accused person is represented by Counsel, if objection is not taken to any irregularity with respect to interpretation, such accused person cannot later on complain that his right, to have the proceedings interpreted to him in a language he understands, had been violated.

From the facts peculiar to this case, I find it hard to accept, on this issue 1, that the alleged failure to provide an interpreter to this Appellant at the trial did occasion any miscarriage of justice to him. He has not discharged the duty, incumbent on him, to show that the failure to provide him an interpreter has occasioned a miscarriage. That duty is on him: QUEEN v. EGUABOR (supra); UWAEKWEGHINYA v. THE STATE (2005) ALL F.W.L.R. (Pt. 259) 1911 at 1923 – 1924; ANTHONY OKORO v. THE STATE (2012) L.P.E.L.R. – 7846(S.C). An accused person and/or his Counsel who, at the trial, acquiesced in the irregular procedure can only complain, and his complaint upheld if he shows that his trial, conviction and sentence had occasioned a substantial miscarriage of justice to him: AJAYI & JULANDE JOS v. ZARIA N.A. (1964) N.N.L.R. 61. I find no such miscarriage of justice to this Appellant.

Issue 1, even on the merits, has no substance. I accordingly resolve it against the Appellant.

The core issue at the Lower Court was: whether at the trial Court, the guilt of the Appellant was proved beyond reasonable doubt Grounds 3 & 4, in the Notice of Appeal to this Court, have respectively complained that the Lower Court had “lowered the standard of proof even

below balance of probabilities when they upheld the decision of the trial Judge that there has been proof beyond reasonable doubt despite obvious reasonable doubt,” and that the Lower Court erred in law when it affirmed the guilt of the Appellant against the evidence before it. The complaints in the said grounds 3 and 4 having arisen, or flowed directly from the decision appealed against; they are competent. The objection to grounds 3 & 4, and consequently issue 3 encompassing both, having not been made out is hereby overruled.

The net result of this exercise is that the issues available for the determination of this appeal are two. In this wise, I prefer the two issues formulated by the Respondent’s Counsel to the Appellant’s issues 3.1.2 and 3.1.3. They are more precise, and are herein below reproduced thus –
1. Whether or not the learned Justices of the Court of Appeal rightly upheld the holding of the trial Court which admitted Exhibits A, A1, A2 and A3 (Photographs of a corpse) as Proof of the death and/or identity of the deceased – Adeoye Dowo

Whether the learned Justices of the Court of Appeal were right in holding that the prosecution proved his case beyond reasonable doubt at the trial CourtPrefatory to the issue: Whether the Lower Court was right in holding, affirmatively that the prosecution at the trial Court, proved the case against the Appellant beyond reasonable doubt, the Appellant’s counsel submits that the Respondent failed to prove the guilt of the Appellant beyond reasonable doubt as they were required to by Sections 135 and 136 of the Evidence Act, 2011. He cites NIGERIA AIR FORCE v. EX S.G.N. (DR. OBIOSA) (2003) F.W.L.R. (Pt.148) at 254 (S.C) for this trite and basic principle in criminal law jurisprudence. It has been the principle of law that the standard of proof, in criminal law, that the guilt of the accused person, charged with criminal offence, is established only upon proof beyond reasonable doubt, it is further the submission of the Appellant that the Respondent did not prove the death of Adeoye Dowo nor was the cause of his death linked to the Appellant.I agree, as submitted by the learned Counsel for the Respondent, that for the prosecution to discharge the onus of proof, in a murder charge, it must be established beyond reasonable doubt-

that the deceased, in this case Adeoye Dowo, died;
b. that the act or omission of the accused person caused the death of the deceased; and
c. that the act or omission of the accused person stated in (b) above was intentional or that it was done with the knowledge that death or grievous bodily harm was its probable consequence:
AHMED v. THE STATE (2003) 3 C.L.R. 145 at 149.
In submitting that the prosecution did not prove that Adeoye Dowo died nor that the Appellant was in any way linked to the death of the said Adeoye Dowo, the Appellants Counsel did not take into consideration the effect of the unchallenged pieces of evidence marshaled against the Appellant by the prosecution. The PW.3, for instance, testified that the Appellant and the 1st accused person led the investigating team to the scene of crime whereat they narrated how the Appellant “started hitting the boy (the 19 year hunch-back, Adeoye Dowo) with wood until he dropped dead and Dayo starting cutting the hunch-back. After removing the hunch-back, it was put in one custard plastic.” The piece of evidence fixing the Appellant to the gruesome manner of

Adeoye Dowo (the hunch-back boy) was killed and his corpse butchered, was not challenged under cross-examination. This piece of evidence coming from the PW.3 clearly identified the person killed, or who died, as Adeoye Dowo. It also established that the Appellant was hitting him “with wood until he dropped dead.
The man died instantly. His corpse was butchered, and the hunch-back removed and was stolen. The Appellant was present at all material times having initially actively performed the act of pounding the deceased who was tied to a tree “until he dropped dead.”
The Appellant had earlier admitted in Exhibit A5, admitted in evidence without opposition through the PW.2, that the deceased was lured into his house, where the 1st accused was is tenant, in the early hours of 13th January, 2012 and abducted. That from his house the abducted deceased person was taken “into the bush very close” to his house; and that –
When they were taking the boy into the bush, he wanted to shout but Samuel (1st accused) promised to give me N100,000.00. I did not tell anybody. When they promised the sum of N100,000.00 – the sum of N100,000.00 given was at Ago-Alaye. I buried the money in front of my house at Ago-Alaye.

The Appellant, according to the PW.2, wrote his name on Exhibit A5 himself. The trial Court found at page 105 of the Record, on this evidence, that “by Exhibit A5, the Appellant was aware of the abduction of the deceased the very morning it happened.” This piece of evidence completely derogates his subsequent feeble alibi that he was at Okitipupa when he heard that the deceased had been killed. The PW.3’s unchallenged evidence not only nailed the Appellant to the conspiracy, it also fixed him to the scene of crime as well as his active role in the killing of the deceased by hitting him “with wood until he dropped dead.”
The trial Court, on the available evidence, found as a fact that the 1st accused and the Appellant planned to abduct the deceased in order to extract his hunch-back, and that true to the plan, he was abducted and killed to facilitate the removal of the hunch-back. The trial Court, in the circumstance, found that the offences of conspiracy and the murder of the deceased charged had been proved beyond reasonable doubt. The Lower Court affirmed the judgment; hence this further appeal.

The Lower Court found correctly, in my view, that the receipt, by the Appellant, of the sum of N100,000.00 as consideration for keeping quiet is a clear evidence on which to infer that he aided and abetted the commission of the offence committed. The Appellant’s conduct clearly tantamounts to his encouragement of those he saw abducting the deceased and taking him to the bush: YAKUBU & ANOR. v. THE STATE (1980) 1 N.C.R.140.
The evidence of PW.5, as found by the Lower Court established the fore knowledge the Appellant had of the plans hatched by 1st accused and others to lure the deceased, entrap him and thereafter kill him for the purpose of the horrendous extraction of his hunch-back. The Appellant, in Exhibit A5, alluded to how the two girls brought in earlier in previous night lured the deceased to his house and thereafter took him into the bush near his house. He went out, after collecting N100,000.00 as fee for keeping quiet. Exhibit A5 clearly undermined and violently uprooted his testimony in open Court that he did not hear that Adeoye was missing and that there was a search for him.”

Exhibit A5 was corroborated by the testimony of the PW.3 detailing how Adeoye Dowo was killed and butchered.
In the face of these overwhelming pieces of evidence, it will be hard for me to agree with the learned Appellant’s Counsel that the prosecution did not prove that the person killed was Adeoye Dowo and that the Appellant was linked to the death and/or killing of Adeoye Dowo. From the evidence of the PW.3 alone, which remains unchallenged, there is proof beyond reasonable doubt that Adeoye Dowo died; he was killed by the Appellant and his accomplices, his corpse was butchered and the hunch-back removed after the Appellant had clobbered him severally “until he dropped dead.”

It is only good for as long as the accused puts or makes the identity of the deceased an issue. I had earlier pointed out that facts not disputed are taken as established and that they need no further proof for the Court to rely and act on them: ODULAJA v. HADDAD (supra); OGOLO v. FUBARA (supra); OKUPE v. IFEMEMBI (supra) OMOREGBE v. LAWANI (supra). Facts admitted or deemed to have been admitted have the same potency. They constitute the best evidence: DIN v. AFRICAN NEWSPAPERS OF NIGERIA LTD (1990) 3 N.W.L.R. (Pt. 139) 392; (1990) 21 N.S.C.C. (Pt. 2) 318. It does not, therefore, lie in the mouth of the Appellant to say that he did not know the identity of Adeoye Dowo, who he aided and abetted or encouraged his abduction, his being taken to the bush and tied to the stake and who he actively clobbered to death before his corpse was butchered and the hunch-back removed therefrom. His confession to the PW.3 and Exhibit A5 had put it beyond doubt the identification of the person whose unnatural death was the subject of the two count charge the Appellant had been found guilty of.
Yes, PW.2 and PW.3 may not, as I.P.O’s, previously had known the deceased. The Appellant who knew him, as his

victim living in the same neighbourhood, had confessed to his killing the deceased whose corpse was butchered in his presence. The photographs, Exhibit A, A1, A2 and A3, were tendered to establish the state the butchered carcass of the deceased, from which the hunch-back was stolen, was found. The PW.3 had testified that the Appellant and the 1st accused person led the Police team to the locus criminis at which they narrated confessionally, the gory details of how the deceased was killed and butchered. In my firm view, with or without the photographs Exhibits A, A1, A2 and A3, the concurrent findings of the trial Court and the Lower Court on other pieces of evidence are unassailable. The concurrent findings, not perverse and unreasonable, are particularly supported by the testimonies of PW.2 and PW.3 as well as Exhibit A5. These pieces of evidence suffered no challenge and damage nor were they discredited by cross-examination and the defence evidence. They are credible and reliable.

The learned Appellant’s Counsel makes a mountain out of a non-issue: that because the pathologist did not testify it tantamounts to withholding of evidence for which the

presumption under Section 167(d) of the Evidence Act, 2011, that evidence which could be produced and is not produced would, if produced, be unfavourable to the person who withholds it, could be invoked. He relies on OGUDO v. THE STATE (2011) 18 N.W.L.R. (Pt. 2178) at 31. 32, where Rhodes-Vivour, JSC states –
A vital witness is a witness whose evidence is fundamental in that it determines the case one way or the other. The failure to call a witness by the prosecution is fatal to the Prosecution’s case. Furthermore, it raises the presumption Section 149(d) (now 167(d)) of the Evidence Act that had he been called, the evidence he would have led would have been unfavourable to the prosecution.
The facts in the printed record do not support the allegation that the Respondent, as the Prosecutor had deliberately withheld the evidence of the medical officer pleaded in the Proofs of Evidence as “Autopsy Report of Medical Practitioner.” On 15th April, 2013 Mrs. Adegoke, the Prosecutor, after she had called five (5) witnesses, prayed to call “one more witness”, the Medical Practitioner. The trial Court adjourned the proceedings to 6th May, 2013 for that

purpose. On 6th May, 2013, Mrs. Adegoke was constrained to explain the absence in Court of the Medical Practitioner by telling the Court that the witness explained to her that he had a tight schedule of attending to patients that day. The defence Counsel, not impressed by the explanation, urged the trial Court “to order the prosecution to close its case.” The learned trial Court grudgingly acceded to the adjournment sought on terms that if the prosecutor failed on the adjourned date, 28th May, 2013, to produce the Medical Practitioner to testify the Prosecution shall close its case “and the defence shall open.” On 28th May, 2013, the defence Counsel was absent and a further adjournment to 25th June, 2013 was taken. On this 26th June, 2013, Mrs. Adegoke announced that the prosecution “having called 5 witnesses will humbly close its case.”
The facts, as highlighted above, do not support the allegation of deliberate withholding of evidence. They seem, rather, to suggest that the witness was not co-operating and the prosecutor was thereby being frustrated.

In any case, what is the evidence allegedly withheld, and how will it alter the landscape or structure of the case of the prosecution The learned Appellant’s counsel has not said. If it was to prove the cause of the death of Adeoye Dowo, will that not be mere surplusage, other pieces of evidence having already established that fact In the circumstance, the Medical Practitioner will no longer be regarded as a “vital witness whose evidence is fundamental as it determines the case one way or the other” – OGUDO v. STATE (supra). This Court in OGBU v. THE STATE (1992) 10 S.C.N.J 88, (1992) N.W.L.R. (Pt. 259) 255 has re-stated the principle that medical evidence is not always essential where the victim died on the spot or in circumstances in which there is abundant evidence of the manner the victim suffered his death, as in the instant case. See also R. v. OMONI W.A.C.A 511 at 512; SALAKO v. A.G. WESTERN NIGERIA (1965) N.M.L.R. 107. The cause of the death of Adeoye Dowo, being very clear from the unchallenged evidence on the confession of the Appellant that the deceased “dropped dead” after being clobbered several times with wood by the Appellant. Thereafter his corpse was butchered and the hunch-back brutally severed there from. I should think, and

I so hold firmly in my view, that the combined brutality of clobbering the deceased “with wood until he dropped dead” and the savagery of severing from his body the hunch-back without anaesthetizing him are the obvious causes of death. In the circumstance, medical evidence ceases to be of any practical or legal necessity: AMAYO v. THE STATE (2001) 12 S.C. (Pt.1) at 17 – 18; KATO DAN ADAMU v. KANO N.A. (1956) S.C.N.L.R. 65; BWASHI v. THE STATE (1965) N.M.L.R. 162.

The Appellant toyed with the defence of alibi. It is submitted by the Appellant’s Counsel that because alibi was not contradicted, it should have been believed. Was it not The alibi was preposterous in view of the unchallenged evidence of the PW.3 that the Appellant confessed his being at the locus criminis and clobbering the deceased “with wood until he dropped dead.” Exhibit A5 also suggests that the Appellant “went outside” his house only after the deceased had been successfully abducted and he, the Appellant, had received N100,000.00, blood money, for keeping quiet.

The integrity of Exhibit A5 is unassailable. The PW.2 testified unchallenged that the Appellant wrote his name on

the statement himself. There is no dispute about the voluntariness of the making of the statement. The Appellant does not plead non est factum. He also does not deny that he was arrested by Youths and brought to Ore Police State. If the PW.2 and PW.4 are found not to be too precise about the dates the Youths arrested the Appellant and when he was brought to Ore Police Station those are matters of details which do not affect the substance of their unchallenged testimonies. After all, as it is stated in RABIU v. THE STATE (2013) 8 N.W.L.R. (Pt. 585) where the adversary fails to cross-examine a witness upon any particular matter, the implication is that he accepts the truth of the matter and the Court will have no other option than to accept and act on the unchallenged evidence, unless the piece of evidence is itself spurious. The law, as the Respondent submits, on authority of OFORLETE v. THE STATE (2000) F.W.L.R. (Pt. 12) 2081, is that facts not controverted or challenged are deemed to have been admitted.

My Lords, this appeal is a challenge to the concurrent findings of act by the two Courts below. There is a limit we can step in and interfere with those

concurrent findings, with the view of disturbing them. It is rarely done by this Court. The only exceptional circumstances when this Court steps in and interferes with concurrent finding are when the finding are perverse and they are not supported by the available evidence, and the concurrent findings tend to occasion miscarriage of justice to the Appellant: SOKWO v. KPONGBO (2008) ALL F.W.L.R. (Pt. 410) 680 at 695 – 695. I have, all these while, been showing that the concurrent findings are supported and backed by available evidence that are credible and that the conclusions drawn from them, by the two Courts below, are neither unreasonable nor do they occasion any miscarriage of justice to the Appellant. With or without the photographs in Exhibits A, A1, A2, & A3 there are overwhelming evidence to sustain the conviction and sentence of the Appellant for the offences charged. Adeoye Dowa, a hunch-back was brutally killed for the purpose of extracting his hunch-back. The available evidence established, beyond reasonable doubt, that the Appellant was very much involved and implicated in the conspiracy to abduct and kill the said

Adeoye Dowo just as he also participated actively in the physical and brutal killing of the said Adeoye Dowo whose body or carcass was butchered and his hunchback severed therefrom and stolen.

There is no substance in this appeal. Accordingly, it is hereby dismissed in its entirety. The decision appealed is hereby affirmed.

IBRAHIM TANKO MUHAMMAD, J.S.C.: I have had the advantage of reading the judgment of my learned brother, Eko, JSC, in which he dismissed the appeal for lacking in merit. I agree with the reasoning and conclusion of my learned brother, thereof, I too dismiss the appeal for lack of merit.

KUMAI BAYANG AKAAHS, J.S.C.: The appellant was the 2nd accused in Charge No. AK/67C/2012 while the 1st accused was Samuel Olatunji. They were charged with other persons now at large before the Ondo State High Court, Akure for conspiracy to commit murder and the murder of Adeoye Dowo on or about 13 January, 2012. The charge reads:-

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COUNT 1
STATMENT OF OFFENCE
Conspiracy to commit murder, contrary to Section 324 of the Criminal Code, Cap.37, Vol. L Laws of Ondo State of Nigeria 2007.
PARTICULARS OF OFFENCE
Samuel Olatunji and Holo Lanre, on or about the 13 day of January, 2012 at Ago-Alaye in the Ore Judicial Division did conspire together with other persons now at large to commit murder.
COUNT II
STATEMENT OF OFFENCE
Murder, contrary to Section 319 of the Criminal Code, Cap 37, Vol. 1, Laws of Ondo State of Nigeria 2006.
PARTICULARS OF OFFENCE
Samuel Olatunji and Holo Lanre with some other persons now at large on or about the 13 day of January, 2012 along Ore – Lagos Express Road near Oniparage in the Ore Judicial Division did murder one Adeoye Dowo and removed his hunchback for the purpose of money ritual.
The prosecution called five witnesses. PW1 was the mother of the deceased who stated that the deceased, Adeoye Dowo was until 13 January, 2012, living with her. He slept in the same house with her. Early in the morning he went out to urinate and was never seen alive again. When the villagers were alerted about the disappearance of

the deceased, they went out in search of him. PW4, a driver who holds a position in the drivers association at Ago Alaye who lived in the same vicinity with the appellant and 1st accused, had left his house early in the morning of 13 January, 2012 to issue tickets to transporters at the motor park and while he was returning home, he met two girls at the junction and they asked him to show them the direction to the expressway which he did. A short while later, the 1st accused who was riding on a motorcycle met him and enquired from him if he had seen some two girls around and he said yes. He informed the 1st accused that he described to the girls how they could get to the expressway and he told him (1st accused) that if he hastened he could still meet them. About an hour later, he learnt that the people in the town were looking for the deceased. He then narrated his encounter with the girls and the 1st accused. He also joined in the search for the deceased. On their way they saw the 1st accused, the appellant and two others driving in the opposite direction. They tried stopping the car in which the appellant and 1st accused were driving but they refused to stop.

They made a u-turn and tried to trail them. They met at a point. The 1st accused and the others came out of the car they were using and tried to escape. They managed to arrest the 1st accused and Dayo near the bush. On entering the town the leaders enquired about the visitors and the 1st accused said they were his visitors. They further enquired about the plight of Adeoye and 1st accused replied that the girls took him away. Members of the community tried to find out if Adeoye was still alive and 1st accused requested for a handset so that he could call the place where Adeoye was taken to. At the request of the 1st accused, the members of the family took him to Dayo and when they met, Dayo stated that they gave a job to the 1st accused. After this, Dayo then the said that the boy was dead. The people asked the 1st accused how much he was promised and he said he was promised N300,000.00 but he had collected N150,000.00. He said that Dayo managed to escape when the people were about to call in the police. Meanwhile the appellant sold his car to someone who revealed that he bought it from the appellant.

The appellant was contacted in respect of the vehicle and it was through this information that led to the arrest of the appellant.

Under cross-examination, PW4 denied that the members of the community beat up the 1st accused before he confessed. When 1st accused was arrested, the community asked about Dowo, he said he was taken away but he assured the people that Dowo was still alive and he needed to see Dayo to know the fate of the boy.

PW5 who is the Chairman of the Motor Cycle Riders Association and the Youth President in Ago Alaye stated that when he was informed that Dowo was missing, he made enquiries as to the circumstances that led to his disappearance. He then went to the motor garage to mobilize motorcyclists to search for those who were said to be responsible for the disappearance of Dowo. They managed to arrest two of them, the 1st accused and Temidayo while the two others escaped. Temidayo later escaped. On being interrogated, the 1st accused stated that four of them kidnapped Dawo and it was he that brought the two women who helped in taking Dowo away from his family. The appellant’s family were threatened by the community and the family’s co-operation led to the arrest of the appellant where he went to sell the car.

PW2 and PW3 were the police who carried out the investigation into the case. PW2 stated that on 14 January, 2012 while he was on duty at the Divisional crime Branch in the Police station Ore, the case of a missing person was transferred from Araromi Obu Police Station and the case was referred to his team for investigation. The 1st accused who was under arrest was handed over to his team. During interrogation, the 1st accused volunteered to take them to where the deceased was tied to a tree close to Oniparage village along the Lagos-Ore expressway. 1st accused led the team to the bush which is close to the Araromi Obu rubber plantation. On getting to the point they saw the lifeless body of the deceased with his hunch back removed. After taking photographs of the scene they took the remains of the deceased to a private hospital mortuary called Arif. He cautioned the 1st accused before he volunteered his statement in which he implicated the appellant and Dayo Araromi as the people who killed the deceased. The appellant was arrested on 15 January, 2012. He too made a statement after he had been cautioned. He then transferred

the case to the State CID. The statement of the 1st accused and the appellant were admitted in evidence as Exhibits A4 and A5 respectively. When the case was transferred to the State CID, it was PW3 and his team who continued with the investigation. He said that on 19 January, 2012 after the appellant had been arrested by the youths, they handed him over to the Police in Ore and he was brought to the State CID in Akure where he identified the 1st accused as one of his tenants. He made two statements at the State CID Akure. One of the statements was taken by Inspector Faruna. The statement of 1st accused recorded at the State CID on 17 January, 2012 was admitted as Exhibit A6 and that of the appellant taken on 19 January, 2012 was admitted as Exhibit A7. 1st accused also informed the team from the State CID that four of them namely himself, the appellant, Dayo Araromi and Olodu master minded the crime. Two of the issues which merit comment are:-
1. Whether the Court of Appeal was right in upholding the conviction and sentence of the appellant by the trial Court despite abundant proofs in the record that the trial proceedings were not interpreted to the

illiterate appellant (who could not speak or understand English Language) as mandatorily required by law.
2. Whether the Court of Appeal was right in upholding the conviction and sentence of the appellant by the trial Court even when the Respondent failed to prove the allegations contained in the charge against the appellant beyond reasonable doubt in all the circumstances of the case.

Section 36(6)(a) of 1999 Constitution (as amended) provides that:-
“36(6) Every person who is charged with a criminal offence shall be entitled to
(a) be informed promptly in the language he understands and in detail of the nature of the offence.”
The appellant or his counsel must draw the attention of the Court of the necessity of the Court to provide an interpreter to enable the accused follow the proceedings which are being conducted in the language that he is not familiar with. If the accused is not represented by counsel, it becomes the duty of the Court to find out from the accused, the language he understands but once the accused is represented, the duty is on his counsel to inform the Court that an interpreter is required to enable the accused

follow the proceedings. See: State v. Gwonto (1983) 2 SC. 52. In Queen v. Eguabor (1962) All NLR 285, it was held that the right of an accused to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence” ……. cannot be invoked on appeal, by an appellant who was represented by counsel at the trial as a ground for setting aside a conviction, unless he claimed the right at the proper time and was denied it. See: also Peter Locknan & Anor v. State (1972) All NLR 498.

The other issue deals with proof beyond reasonable doubt. Five witnesses testified for the State and the 1st accused led PW2 and his team to the bush close to Araromi Obu rubber plantation where they saw the lifeless body of the deceased and the hunchback already removed. The 1st accused made a statement implicating the appellant and other accused in the murder of the deceased. When the case was transferred to the State CID, the 1st accused and the appellant led the police detectives to the scene of crime along the Lagos/Oniparage road. By that time the corpse had been removed. Apart from the statement of the 1st

accused that he, the appellant, Dayo Araromi and Olodu masterminded the crime, the appellant made Exhibits 45 and A7. No objection was raised to the tendering of Exhibits A5 and A7, neither was PW3 cross-examined on his evidence that the appellant admitted that he together with 1st accused, Dayo Araromi and Olodu masterminded the crime.

The appellant testified as DW2. He denied knowledge of Adeoye Dowo or anything connected with the incident.

The learned trial Judge reviewed the evidence called and this is what he said concerning the evidence that had to do with the appellant:
“The statement of the 2nd accused person admitted as Exhibit A5 suggests that the 2nd accused knew that the 1st accused, Dayo and Olodu had a relationship but Samuel (1st accused) lured the deceased to his death. He did not give any reason for the reward of N100,000.00 that he was given. By Exhibit A7 to accused person denied any involvement in the kidnap plot and the murder of the deceased. From the statement of the 2nd accused, Exhibit A5, the 1st and 2nd accused persons live in the same house. The 2nd accused person was aware that Samuel sent for the deceased and that

the deceased was brought to the house where he and Samuel lived. In the same token, 2nd accused said the deceased was taken to the bush inside Dayo’s vehicle. By Exhibit A7, 2nd accused confirmed that he and the 1st accused visited a herbalist in December, 2011 as stated in Exhibit A6. It is logical to reason that the deceased, a hunchback become a target. He had to be killed to extract his hunchback. From the oral evidence of the 2nd accused he seems to be raising a defence of alibi which is contrary to Exhibit A5 and A7 ……… By Exhibit A5, 2nd accused was aware of the abduction of the deceased the very morning it happened. He said that he saw when Samuel, Olodu and Dayo were taking him to the bush, he wanted to shout but Samuel promised to give him N100,000.00. The deceased was taken to a bush but not in Ago-Alaye, the implication is that he followed the killers of the deceased out of Ago-Alaye to the bush where the deceased was killed. It is not normal for the landlord to see the deceased in company of his tenant whom his mother described as his close friend and the landlord’s reaction will be to shout and accused stated he was in Okitipupa when he

heard that the deceased had been killed. By so doing he was relying on the defence of alibi. Learned counsel for the defence argued that the 2nd accused did not have the opportunity to raise the defence during investigation because he was not allowed to talk. The learned counsel for the defence did not object to admissibility of Exhibits A5 and 47 credited to the accused. The submission of learned counsel has no foundation in the evidence on record …… By Exhibit A5, 2nd accused said he saw the deceased on 13/1/2012 that is the day he was killed. Therefore to suggest that he was in Okitipupo when he heard about the death of the deceased is inconsistent. What is more likely is that after he participated in the killing, he escaped as alleged by PW4 and PW5. The evidence of PW5 that the arrest of the 2nd accused person was assisted by members of his family is unchallenged.”
The learned Judge concluded thus:-
“There is evidence that the 1st and 2nd accused persons planned to abduct the deceased to extract his hunchback. True to the plan he was abducted and killed to facilitate removal of his hunchback.

In this circumstance, conspiracy has been proved beyond reasonable doubt. In the light of the foregoing, I am satisfied that the prosecution has proved the case of conspiracy to commit murder and murder against the 1st and 2nd accused as charged.”

The Lower Court found conspiracy proved from Exhibit 5 where the appellant stated that the 1st accused entered the room and the victim was taken away into the bush while he, appellant was given N100,000.00 which he buried in front of his house. The Lower Court held that the evidence of the appellant and the circumstances of its making, appears to be an afterthought, especially that no objection was raised when Exhibit 5 was tendered.

The learned trial Judge drew proper inferences from the evidence adduced and arrived at the correct conclusion that there was conspiracy between the appellant and the 1st accused and the others who are now at large to murder Adeoye Dowo and the conspirators succeeded in their evil plan in order to harvest the deceased hunchback. There is no way they could have succeeded in removing that part of his body without killing him. The Lower Court rightly found no merit in the appeal and dismissed same. I find no merit in the appeal and it is accordingly dismissed.

My Lord, Eko JSC made available to me his leading judgment which I perused and for the reasons contained in the said judgment and what I stated above by way of emphasis, this appeal is unmeritorious and I hereby dismiss it.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment delivered by my learned brother, Eko, JSC, and I agree entirely with his reasoning and conclusion that there is no substance in this appeal, and it is dismissed in its entirety. The decision appealed is hereby affirmed.

PAUL ADAMU GALINJE, J.S.C.: I have had the privilege of reading in draft, the judgment just delivered by my Learned brother, Ejembi Eko JSC and I agree with the reasoning contained therein and the conclusion arrived thereat. The issue of interpretation during the proceedings at the trial Court, where the Appellant was represented by counsel, was not raised and dealt with in that Court.

The Appellant cannot raise it at the appellate Court, where the chances to call evidence to find out whether the Appellant did understand the language of the Court is no longer available. It was the responsibility of the Appellant in line with Section 136 of the Evidence Act, to prove before the trial Court that he did not understand the language of the Court. Section 136 of the Evidence Act 2011 provides as follows:
The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence unless it is provided by any Law that the proof of that fact shall lie on any particular person, but the burden may, in course of a case be shifted from one side to the other.
See The State v Gwonto & Ors (1983) 3 SC 62 at 66.
From the record of this appeal, it is clear that the appellant did not inform the Court that he did not understand the language of the Court, as such the trial Court was not in a position to know that Appellant had no capacity to communicate in English.

There is overwhelming evidence against the Appellant that he infact was the person who clubbed Adeoye Dowo to death, an act which paved the way for Dayo to

harvest the hunchback from the Dowo’s dead body for ritual purpose. After the killing of Dowo, it was the Appellant and the first accused person that led a team of investigation police officers to the scene of crime. These pieces of evidence have clearly fixed the Appellant to the scene of the crime and his active participation in the acts that led to the death of Adeoye Dowo.

With these few words and the more detailed reasoning in the lead judgment, which I adopt as mine, this appeal shall be and it is hereby dismissed by me as well.

Appearances:

Ige Asemudara, Esq. For Appellant(s)

Adekola Olawoye, Esq. (Hon. Attorney-General, Ondo State) with him, G.A. Olowoporoku, Esq. (Director, Public Prosecution Ondo State) and Stella Adegoke, Esq. (Deputy Director, Public Prosecution Ondo State) For Respondent(s)

Appearances