SEGUN v. STATE
(2021)LCN/5149(SC)
In The Supreme Court
On Friday, December 10, 2021
SC.1138C/2018
Before Our Lordships:
Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria
Ejembi Eko Justice of the Supreme Court of Nigeria
Mohammed Lawal Garba Justice of the Supreme Court of Nigeria
Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria
Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria
Between
ADEYEMO SEGUN APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
GUILTY OF THE OFFENCE CHARGED
In the Court’s duty of resolving the question of whether an accused is guilty of the offence charged, it has been guided by certain parametres which are the following:
a. The confession of the accused
b. Circumstantial evidence; and
c. Evidence of eye witness of the crime.
See Lori v. State (1980) 8 – 11 SC 81; Maigari v. State (2010) All FWLR (pt. 546). Mary Ukaego Peter-Odili J.S.C.
ADMISSIBLE EVIDENCE
The fact that a witness for the prosecution has relationship with the deceased or the victim of the crime charged does make his evidence inadmissible in law. See the case of Nwaogu v. The State (1992) 7 NWLR pt. 254 page 421 at 439. Mary Ukaego Peter-Odili J.S.C.
REASONS FOR A JUDGEMENT SHOULD BE GIVEN
It is of fundamental importance that reasons be given for conclusions and decision. This is because it is the reasons that show that the conclusion and decisions are derived from a consideration of the case before the Court and show the reasoning process that resulted in the conclusion and decisions. Without the reasons, the conclusions and decisions would clearly be baseless and perverse. The lack of reasons render the conclusions and decisions products of intuitiveness, irrationality and arbitrariness. See Agbanelo v. UBN Ltd (2000) LPELR – 234 (SC), Doma & Anor v. INEC & Ors (2012) LPELR- 78 22 (SC). In Obmiami Brick & Stone (Nig) Ltd ACB Ltd (1992) LPELR 21 77 (SC) this Court held concerning the absence of reasons for a dismissal of a claim thusly – “If that dismissal is meant to be, and in fact should be, a Judgment of the Court, reasons must be given. It is not for the appellate Court to speculate why a case was dismissed, non-suited or struck out- The reason for doing so must appear on the record of the lower Court. It is not a case of decision as canvassed by the appellant, it is in the interest of justice that any party should know why he has lost or won the case”
This Court in Ogboru v. Uduaghan & Ors (2012) LPELR – 8267 (SC) held thusly that “It has been stated in Abacha V Fawehinmi (2002) FWLR (Pt.4) 568 that the substance of a judgment of a Court is embodied in its ratio decidendi or ration(s) in the case, that is the reason or reasons for the decision(s) as against mere passing remarks”. Mary Ukaego Peter-Odili J.S.C.
EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): On 16th May, 2018 the Court of Appeal, Ado-Ekiti Division (the lower Court) delivered judgment in the appeal of the Appellant in which the said lower Court affirmed the conviction of the Appellant, and death sentence imposed on him, for murder. The opinion of the lower Court prepared and delivered by AHMAD O. BELGORE, Presiding Justice, was unanimously concurred by FATIMA OMORO AKINBAMBI and PAUL OBI ELECHI, JJCA. This further appeal is against the said decision.
The uniqueness of the judgment appealed warrants my having to set it out, clearly, in its three active components. Firstly, at pages 204 – 207 of the Record, the Notice of Appeal against the decision of the trial Court containing 4 grounds of appeal, was set out verbatim thus:
It is against the decision of the High Court, that the appellant has appealed to this Court. Pursuant to the leave of this Court granted on the 16th day of October, 2017, on Amended Notice of Appeal contained four Grounds of Appeal was filed on the 26th day of October, 2017. The four grounds of appeal are –
GROUND 1 (ONE) ERROR IN LAW
The learned trial Judge erred in law when he relied on the evidence of Prosecution witnesses who are not eye witnesses to the commission of crime in convicting the Appellant of the offence of Murder.
PARTICULARS OF ERROR
1. The only eye witness was PW3 whose evidence was not corroborated by any other person.
2. The evidence of PW3 before the Court shows that PW3 is a tainted witness having alleged that she was almost killed by the Appellant who in any event did not assault, bear or done any harm to PW3.
3. There was no legally admissible evidence on which the Court could hinge the guilt of the accused person for which reason the Court did not consider the evidence before the Court but decided the guilt of the accused person hearsay evidence.
GROUND 2 (TWO)
The learned trial Judge erred in law when he convicted the Appellant of Murder despite the failure of the Prosecution in discharging the burden of proof beyond reasonable doubt as the evidence adduced is insufficient to ground or sustain the ingredient of a Murder charge.
PARTICULARS OF ERROR
1. It is evidence that the alleged crime for which the Appellant was convicted was not witnessed by any of the Prosecution witnesses, yet the Court convicted the Appellant on the evidence of PW3 without corroboration.
2. The Court held that failure of the Appellant’s witnesses to volunteer any statement to the Police discharges the Prosecution of Mandatory burden of proof beyond reasonable doubt in a criminal trial.
3. The evidence adduced by the Prosecution against the Appellant which the Court believed and based its decision no conclusion based on law.
GROUND 3 (THREE) ERROR IN LAW
The entire trial as it relates to the Appellant is a nullity, the trial having been conducted against the Appellant’s right to fair hearing.
PARTICULARS OF ERROR
1. The law is that the Court is bound to consider any defence offered by any accused person in a criminal trial, this the Court failed to do in this case.
2. The Court held that failure of the Appellant’s witnesses to volunteer any statement to the Police make their evidence not reliable and therefore liable to rejection in clear breach of law and judicial authorities that an accused person cannot be condemned unheard.
The second phase of the judgment of the lower Court has therein set out and reproduced the respective issues distilled from the 4 grounds of appeal at pages 207 – 208. That is –
ISSUE No. 1
Whether the Court was right in convicting the Appellant of Murder in the absence of any legally admissible evidence. This issue covers ground 1 (one) of the grounds of Appeal.
ISSUE No. 2
Whether the Prosecution discharged mandatory burden of proof imposed on it by law so as to justify the conviction of the Appellant for murder. This issue covers ground 2 (two) of the grounds of appeal.
ISSUE No. 3
Whether the trial and conviction of the Appellant is not a nullity, the Court having not considered the defence offered by the Appellant and evidence adduced by his witness. The issue cover ground 3 (three) of the grounds of appeal.
The Respondent distilled a sole issue for determination, viz –
Whether the Appellant was not properly convicted of the offence as charged by virtue of the evidence adduced and admitted at his trial before the lower Court? [ground 1]
Then comes the consideration and the brisk, albeit brief and foggy decision on the issues, as follows at pages 208 and 209. That is- Issue No. 1
The lower Court (sic – was) right in convicting the Appellant of murder, based on legally admissible evidence.
Issue No. 2
The prosecution discharged the mandatory burden of proof imposed on it by law and the conviction of the Appellant for murder is justified.
Issue No. 3
The learned trial Judge considered the evidence of the Appellant and his witness. He appraised same and came to right decision. I do not see any reason whatsoever to annul the trial and the convicting (sic) of the Appellant.
All the three issues formulated by the Appellant having been resolved against him, this appeal must fail and it is accordingly hereby dismissed. The decision of the lower Court in charge No. HOM/1C/2013 delivered on the 21st day of June, 2016 convicting and sentence the Appellant is hereby affirmed.
It is this brisk and brief judgment (in a style most unusual of a superior Court) that the complaints of the Appellant, in this further appeal, are directed. The Notice of Appeal has 4 grounds of appeal. In the Appellant’s Brief, Mr. Tunde Adeoye of the Appellant’s Counsel formulated three issues from grounds 1 – 3, abandoning ground 4 – the omnibus ground. I hereby adopt the 3 issues formulated by the Appellant’s Counsel. They read:
1. Whether the Court of Appeal was right in affirming the conviction of the Appellant for murder by the trial Court in the absence of any legally admissible evidence? This issue covers ground 1 (one) of the grounds of appeal.
2. Whether the Prosecution discharged (the) mandatory burden of proof imposed on it by law so as to justify the conviction of Appellant for murder? This issue covers ground 2 (two) of the grounds of appeal.
3. Whether the trial and conviction of the Appellant is not a nullity, the Court having not considered the defence offered by the Appellant and the evidence by his witness? This covers ground 3 (three) of the grounds of appeal.
Ground 3 of the grounds of appeal, from whence issue 3 was allegedly distilled, does not have particulars of “any defence offered by” the Appellant at the trial which “the trial Court failed to do (consider) and the learned Justices of the Court of Appeal held that the right of the Appellant was not breached by the trial (Court)”. The Appellant’s counsel does not appear learned enough in this type of “jedi-jedi” advocacy. In the Appellant’s Ground 3, in the Amended Notice of Appeal at the lower Court, Mr. Tunde Adeoye of the appellant’s counsel made the bald statement of complaint that “the entire trial as it relates to the Appellant is a nullity, the trial having been conducted against right to fair hearing”. The said Ground 3 was without particulars, albeit insufficient, that would have put the Respondent on the notice of this alleged infraction of the Appellant’s right to fair trial by the trial Court.
The notice of the case a party is going to meet for him to plan adequately how to answer or defend it is the very essence of audi alteram partem principle in fair hearing or natural justice. As the prosecution has no right to deny the defence audi alteram partem so also the latter the former. Denial of a party of his right to audi alteram partem is, no doubt, an infringement of the other’s right to fair trial or hearing guaranteed by Section 36 of the 1999 Constitution, as amended. The Courts of law and justice frown at a party in litigation laying ambush on his adversary. It is jurisprudentially unwholesome.
On this note, I am of the firm view that the ground of appeal, from which issue 3 has been formulated for the determination of this appeal is, like the said issue 3, incompetent. Both the ground 3 and issue 3, shall be, and are hereby, struck out. No where in the judgments of the trial Court and the lower Court did this bogus issue of alibi and the defence evidence on it arise. In any case, the credible evidence of PW.1, PW.2, PW.3, PW.4 and PW.5 – eye witnesses, believed by the trial Court would not let any alibi being flaunted by the Appellant fly. The issue is a non-starter.
The remaining two issues come down to whether the guilt of the Appellant was established beyond reasonable doubt at the trial Court to warrant the lower Court affirming it. Clearly, the further appeal is against the concurrent findings of fact. The Appellant, in the circumstance, is enjoined to show that the concurrent decisions were perverse or unreasonable. The Apex Court will not, as a principle, lightly interfere with concurrent findings of fact: OMETA v. NUMA (1934) 11 NLR 18. In otherwords, in the absence of special reasons the Apex Court will not review concurrent findings of fact or the facts at the trial the third time:-ASSACHERE v. DADIASE (1945) 11 WACA 1. It is on this principle that a derivative principle evolved to the effect: that concurrent findings for facts of the Courts below prima facie entitle the respondent to an order dismissing the appeal against findings of fact: ADANSI v. BRENASE P. C. No. 23 of 1953; (1956) 1 W. A. L. R 6 (Ghana). Putting it rather bluntly: except where there are special circumstances, the Apex Court will not permit a question of fact to be re-opened where there had been concurrent findings of fact on it: DAWODU v. DANMOLE (1962) 1 ALL NLR 702.
This, instant appeal, however, is an appeal challenging the conviction of the Appellant for murder that the lower Court had affirmed. Section 233(2)(d) of the Constitution, as amended, offers constitutional exception to this general principle when it confers on the appellant the right to appeal as of right to this Court, the Apex Court, to challenge his conviction for capital offence and/or death sentence. I shall, therefore, do evaluation of some of the salient or material facts.
The summary of the five material witnesses called by the respondent is that the Appellant, as the 1st Accused, was fixed physically to both the scene, the locus criminis, and the alleged murder.
The PW.1, a Police Inspector, who was at the scene at the material time, testified, undiscredited, that the Appellant and the co-accused were among the lynch mob that invaded the Police Station to lynch the PW.4 and the two Fulani men.
The three had been rescued and put into the Police cell in a protective custody. The mob led by the Appellant and the co-accused, over powering the police personnel, broke into the cell. The PW.2, another Police officer, was categorical and undiscredited. He testified that the Appellant was at the scene of the mob attack at all material times.
The PW.5, the investigating Police officer, recorded the Appellant’s extra-judicial statement, Exhibit 3.02. It was a confessional statement admitted in evidence inspite of objection. The Ruling dismissing the objection, not appealed, remains unchallenged, extant, subsisting and binding on the Appellant, just as the confession Exhibit 3.02.
The PW.3, the mother of PW.4, rushed to the police station on hearing that the PW.4 was being attacked by the mob at the Police station. She saw the Appellant lead the lynch mob.
The PW.3 was categorical that the Appellant,
The 1st Accused hit the man with the white and black T-Shirt with the axe … The man with the White and Black T-Shirt was beaten to death by the 1st Accused and others.
She was not discredited under cross-examination nor by any other piece of evidence. The trial Court believed her, and the lower Court affirmed the finding of fact. The concurrent findings are not perverse or unreasonable. They are premised on credible legal evidence.
The PW.4 was conveying the two Fulani men (including the one wearing “white and black T. Shirt). The three were waylaid and thoroughly beaten. They were rescued and taken to the police station. He saw the 2nd Accused lead the lynch mob into the police station. The mob later brought out the two Fulani men from the cell. He saw the 2nd Accused personally smash the head of one of two Fulani men in the most, horribly, gory manner. The man died. The Appellant and the said 2nd Accused remained active in the criminal partnership throughout. The Appellant, in this further appeal, does not contest the fact that the two Fulani men were brutally killed. The fact of their death through some unlawful or illegal mob action is not in dispute.
The cumulative of the totality of the evidence of the PW.1, PW.2, PW.3, PW.4 and PW.5, together with the Appellant’s confessional statement, Exhibit 3.02, constitute the corpus of the legal evidence believed by the trial Court in the conviction of the Appellant for the gruesome murder of the two Fulani men alleged. The Appellant admitted to the PW.5 that he was at the scene of crime – that admission actively should discredit any unfounded alibi. The totality of the evidence established that the Appellant had the opportunity of committing the alleged crime, and he did actually commit it: UBANI v. THE STATE (2004) FWLR (Pt.191) 1533 at 1546.
I agree with the learned Attorney-General of Ekiti State, Mr. Fapohunda, that the proof of the guilt of an accused person can be sustained on the following evidence, jointly and/or severally, that is –
i. the confession of the accused;
ii. circumstantial evidence; and/or
iii. evidence of eye witnesses of the crime;<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
LORI v. THE STATE (1980) 8 – 11 SC 81 MAIGARI v. THE STATE (2010) FWLR (Pt. 546) 505.
I find neither perversity nor unreasonableness in the concurrent findings of fact this appeal is directed against. The Appellant has also not been able to show any miscarriage of justice occasioned by the concurrent findings of fact. His conviction for Murder affirmed by the lower Court in the unusually very foggy brisk, brief and scanty judgment is hereby further affirmed.
The appeal, lacking in substance, is hereby dismissed in its entirety.
Appeal dismissed.
MARY UKAEGO PETER-ODILI, J.S.C.: I am at one with the judgment just delivered by my learned brother, Ejembi Eko, JSC and to register the support in the reasonings from which the decision arose, I shall make some comments.
This is an appeal against the judgment of the Court of Appeal, Ado Ekiti Division or lower Court or Court below, Coram: Ahmad O. Belgore, F.O. Akinbami and P.O. Elechi JJCA, delivered on the 16th day of May, 2018 affirming the conviction and sentence to death of the appellant by the High Court sitting at Omuo after on the 16th June 2016 per A. Adesodun J. The detailed facts leading to this appeal are well set out in the lead judgment and I shall not repeat them save for when a reference to any part thereof becomes necessary.
On the 23rd September, 2021 date of hearing, learned counsel for the appellant, Tunde Adeoye Esq adopted the brief of argument filed on 3/1/2019 and therein raised three issues for determination, viz:
ISSUE NO. 1
Whether the Court of Appeal was right in affirming the conviction of the Appellant for murder by the trial Court in the absence of any legally admissible evidence. This issue covers ground 1 (One) of the grounds of Appeal.
ISSUE NO. 2
Whether the Prosecution discharged mandatory burden of proof imposed on it by law so as to justify the conviction of the Appellant for murder. This issue covers ground 2 (Two) of the grounds of Appeal.
ISSUE NO. 3
Whether the trial and conviction of the Appellant is not a nullity, the Court having not considered the defence offered by the Appellant and evidence adduced by his witness. This issue covers ground 3 (Three) of the grounds of Appeal.
I shall utilize Issue 2 of the respondent as a sole issue since it is sufficient in itself to encapsulate all the questions raised on either side.
SOLE ISSUE
Whether the respondent has proved its case against the appellant beyond reasonable doubt.
Learned counsel for the appellant submitted that the evidence of PW2, PW4 and PW5 are not the evidence of eye witnesses as they gave evidence based on what they heard which make their evidence hear-say. That the evidence relied upon by the trial Judge are not legally admissible evidence since they were hearsay evidence and cannot sustain the charge of murder. He cited Iniabasi Okon Uweh v. The State (2013) All FWLR (pt. 679) 1089 etc.
That the evidence of PW3 is unreliable and ought not be used or relied upon in linking the death of any of the deceased person to the appellant. He referred to Alhaji Muazu Ali v. The State (2015) All FWLR (pt. 796) 559. Learned counsel for the appellant contended that the PW3 is a tainted witness and his evidence cannot be corroboration of the evidence of the PW1, PW2 and PW5 which evidence is inadmissible. He cited State v. Gwangwan (2015) 13 NWLR (pt. 1477) 609-610.
He stated that there was no independent evidence to corroborate that of the PW3, and doubts exist which make it difficult for the Court to hold that the prosecution has proved its case beyond reasonable doubt. He cited Sheidu v. The State (2014) 9 SCM 195 etc.
For the appellant, it was contended that the failure of the trial Court to consider the defence of alibi raised by the appellant is a grave error on which account it is a breach of fundamental right of the appellant to fair trial and therefore fatal. He relied on Tajudeen Iliyasu v. The State (2015) All FWLR (pt. 793) 1965 etc.
Learned Attorney General for the respondent submitted that the scenario painted by the appellant and the respondent’s witnesses showed the appellant attacked and killed the victim in the crowd though he was specifically identified as being responsible for the death of the deceased. He cited Ubani v. State (2004) FWLR (pt. 191) 1533 at 1546 etc.
That the mere fact that PW3 was a blood relation of the deceased did not render his evidence inadmissible or have him termed a tainted witness. He cited Nwaogu v. The State (1992) 7 NWLR (pt. 254) 421 at 439 etc.
For the respondent, it was submitted that the defence of alibi is unassailable not only that it was raised for the first time at appellant’s defence but the fact that the available evidence of the prosecution witnesses pinned the appellant at the scene of crime at the time material.
In the Court’s duty of resolving the question of whether an accused is guilty of the offence charged, it has been guided by certain parametres which are the following:
a. The confession of the accused
b. Circumstantial evidence; and
c. Evidence of eye witness of the crime.
See Lori v. State (1980) 8 – 11 SC 81; Maigari v. State (2010) All FWLR (pt. 546).
Placing in context the case in hand in relation to the guides above stated, the appellant has by the strength of his confessional statement marked exhibit 3.02 not only put himself at the scene of crime but admitted participating in the death of the deceased particularly the killing of the Fulani man dressed in white and black t-shirt as strongly maintained by PW3 who did not shift her position under cross-examination. I shall quote excerpts therefrom thus:-
“On getting to Iluomoba, I thought it was my son that was being killed. I came down from the car and pleaded that my son should not be killed. I saw the 1st accused person (appellant), he carried an axe and a small wood… it was the wood that he used to hit the head of the victim … that victim that was being killed then had on a t-shirt with white and black colour. I can identify the victim’s photograph if shown to me”.
The appellant in the confessional statement mentioned the names of other participants in the perpetration of the killing of the two Fulani men. The appellant testified on oath while giving evidence on behalf of himself and stated that while he was riding his motorcycle towards Ijanmodu, he saw a large crowd and on getting closer, he was informed that an okada rider (commercial motorcyclist) had been arrested. The okada rider (PW4) said “sir! Don’t you know me? I then slapped him and we took them to the police station where I dropped them”. The PW3 who was also the victim of the appellant, gave and painted a clear account of what she saw and experienced in the hand of the appellant. She stated copiously how she rushed to the police station and was able to recognize the appellant lynching the deceased who was wearing white and black t-shirt while she thought it was her son PW4.
On the evidence of eye witness, add that the PW3 was able to identify the respondent among the crowd while she thought it was her son (PW4) that was being killed. The appellant further made himself known better and clearer to the PW3 when he left the deceased and wanted to attack the PW3 who at the critical time, took pain to notice that the deceased was having the same hair cut with her son PW4, in her words.
“on getting out of the vehicle, the victim being hit had on punk haircut, same haircut with my son and was wearing white sweater so I thought it was my son. I rushed out shouting the 1st (appellant) made attempt to hit me with the axe in his hand.”
This made his identity to be unshaken as she was able to identify him again in the open Court while in the dock.
The scenario painted by the appellant and the respondent’s witnesses showed that the appellant attacked and killed the victim in the crowd though he was specifically identified as being responsible for the death of the deceased. It is shown that the appellant had the opportunity to commit the crime and he did commit it. See the case of Ubani v. State (2004) FWLR 191 page 1533 at 15.
On a similar scenario, the Supreme Court had held per Mbanefo JSC that:
“any who knew the purpose of such a crowd and joined it could not escape responsibility for its action. It is clear that if two or more persons had formed a common intention to attack another or others with intent to kill or do grievous harm or in a matter likely to endanger human life and have in fact taken together in such an attack or other resulting in death as a probable consequence, all are guilty of murder.”
See the case of Amoo v. State (1959) NSCC 91.
Clearly, it was the appellant that was responsible for the death of the deceased that was dressed in white and black t-shirt and he cannot exculpate himself from that responsibility. In the case of Ubani v. State (2003) 18 NWLR (pt. 851), the appellants were charged with the murder of the deceased. The deceased was attacked by the appellants with gun butt, cudgels and cutlass in the presence of his wife and daughter. As a result of the attack, the deceased died, Edozie J.S.C while dismissing the appeal of the appellant in the lead judgment, had this to say at page 244 of the report:-
“that it was the act of his assailants that caused his death and judging from the nature of his attack and the lethal weapons used, the attackers had intention to kill or at least cause grievous bodily harm on the deceased.” (emphasis nine)
It is crystal clear from the facts and evidence of PW3 which is inviolable that the hostile attack and merciless beating of the deceased with the wood in the appellant’s hand culminated in the instant death of the deceased.
On the issue of PW3 being a tainted witness, the appellant admitted that the PW3 and PW4 had no grudge against him. He stated further that he did not know PW3 and PW4 before that day of incident. Record showed that the PW3 was almost a victim of the appellant as he attempted to attack her. Moreover, the PW3 is a competent and compellable witness.
The appellant had the opportunity to cross-examine the PW3 on this fact, the PW3 is the mother of PW4. The mere fact that they share the same blood will not make her a tainted witness unless she has a purpose to serve in the circumstance of this case. The PW3 maintained in her testimony that she saw the appellant lynching the deceased and afterwards he wanted to attack her. That circumstance will not make her a tainted witness to what she felt with her sense organs.
On the strength of the above, the fact that a witness for the prosecution has relationship with the deceased or the victim of the crime charged does make his evidence inadmissible in law. See the case of Nwaogu v. The State (1992) 7 NWLR pt. 254 page 421 at 439.
The argument that the appellant dwelt on that the trial Court based its decision in convicting the appellant has no foundation in law. It is the duty of the Court to ensure prudence in acting on evidence of a single witness and nothing more.
The Court has over the years instructed and has given a judicial clarity on evidence of a single witness in the case of Mbenu v. The State (1988) 3 NWLR pt.84 page 615 at 627 where Nnamani JSC held that:
“the requirement that a trial judge should warn himself before convicting on the evidence of a witness tainted by some relationship with the deceased or the victim as one would in the case of accomplice is one dictated by prudence and not by law.”
The failure of the trial judge to warn himself will not vitiate the conviction of the appellant. I place reliance on Ekang v. The State (2001) 11 NWLR (pt. 723) page 1 at 25.
I agree with learned counsel for the respondent that the appellant had admitted that the respondent had proved and established two ingredients out of three ingredients to sustain a case of murder against the appellant, whose grouse is that the third ingredient is yet to make the appellant fully responsible for the offence charged. It is easy to conclude that the facts admitted are taken to be the time true state of affairs. See Jammal v. State (1998) ACLR 530 at 535; Section 123 Evidence Act.
On the third ingredient, that the appellant had a grouse against which is the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm would be its possible consequence, the answer rests with exhibit 3.02 which is confessional in nature and shows that the appellant and others conspired and killed the two deceased. That assertion was corroborated by PW3. Therefore the involvement of the appellant to the killing of the deceased was evident. See Oguno v. The State (2011) 7 NWLR (pt.1246) 314 (CA); Ebeinwe v. State (2011) 7 NWLR (pt. 1246) 402.
The appellant clearly knew in the circumstance where and when he was hitting the deceased with wood that caused grievous bodily harm or death of the deceased is possible. See the case of Gira v. State (1996) 4 NWLR (pt. 443).
The appellant had sought to anchor on the defence of alibi which he raised for the first time during the trial. This defence of alibi is one which the accused uses to posit he was elsewhere at the time of the commission of the offence and so could not be at the scene of crime at the material time. See Garba v. State (1999) 11 NWLR (pt. 627) 422 at 439 (CA).
Inspite of the lateness in bringing up the defence at the trial, there is a surfeit of evidence which has demolished that plea as the available evidence on record fixed him at the scene and precinct of the crime hence he was well trapped to the offence charged. That PW1 had testified that he knew the two accused persons including the respondent and that on the 13/9/2013 after which he had served in that community for 1 year 8 month saw the appellant among the mob that attacked the police station. He also maintained that the appellant knew him very well and there was no animosity that existed between them. The straw that broke the camel’s back came during the cross examination of the PW1 when he responded that the appellant trekked to the police station carrying a stick.
Further to the above, PW3 was emphatic in her testimony that the appellant flogged her with his belt and showed the Court the mark. She remarked that the appellant on 8/7/2014, 6/7/2014 and 8/7/2014 came with a woman to her house and pleaded that she should not say that he was part of the people that committed that offence and also the Appellant stated he was the one that prevented other people from killing the PW4 (the son of PW3). PW4 who was able to recognize the Appellant when he came to their house on 6/7/2013 stated that he was there to beg not to implicate him.
It is to be noted that the above piece of evidence was not punctured during the blast of cross examination. The appellant did not bring any material evidence to dislodge those assertions. The law is that anybody who fails to cross examine a witness on a particular matter, the implication is that he accepts the truth of that matter as led in evidence. See the case of: OLUDAMILOLA v. STATE (2010)15 WRN 1, ALI v. STATE (2003) 3 ACLR 581.
On the issue of the Court not considering the defence of alibi by the Court. I posit that on the strength of the evidence on that line of argument cannot be considered in law as the law concludes that it is an afterthought or an attempt to ambush the prosecution and same cannot be considered as a serious defence. At best it is liable to be regarded as an afterthought. See the case of IKEMSON v. STATE (1989) 3 NWLR pt. 110 page 455 and the case of GARBA v. STATE (supra).
The evidence adduced by the PW1, PW3 and PW4 particularly the damaging evidence given against the appellant by PW3 which was not dislodged even under cross examination fixed the appellant to the scene of the crime and also as perpetrator of the crime. It is a well settled law that where an accused person is fixed at the scene of crime, the defence of alibi is demolished and will collapse like a pack of cards. The Supreme Court per: Nnaemeka-Agu J.S.C in the case of OGOALA v. STATE (1991) 2 NWLR pt. 175 page 509 at page 521 held as follows:
“once the duty of the prosecution to disprove the alibi arises in the manner I have stated, they can do that by showing directly that the accused person was wrong in his claim to have been at another place during the commission of the offence charged that his defence of alibi cannot be true”
See also GARBA v. STATE (supra at page 439), THE Court of Appeal held that:
“therefore where the evidence of prosecution witnesses had successfully connect the accused person with the commission of the offence charged, his defence of alibi cannot stand” (italic mine).
The respondent called credible witnesses who directly connected and fixed the appellant to the commission of the crime, therefore I resolve this issue against the appellant.
Still on the denial of fair hearing on the witness called by the appellant where he said the Court rejected their evidence as cooked-up, which is the correct summation.
From the foregoing, the issue is resolved against the appellant whose appeal fails being unmeritorious. I dismiss the appeal as I abide by the consequential orders made.
Appeal Dismissed.
MOHAMMED LAWAL GARBA, J.S.C.: I completely agree with the lead judgment of my learned brother, Ejembi Eko, JSC, a draft of which was afforded to me, that notwithstanding the very poor quality of the judgment by the lower Court, the Record of Appeal bears compelling, credible and sufficient evidence placed before the trial Court by the Respondent which not only fixed the Appellant at the scene of the murder of the deceased, but proved beyond reasonable doubt that he personally led the mob and physically attacked and killed the … Instantly, at the police station. The Appellant has failed woefully to show any cogent reason or special circumstances why the Court should disturb or interfere with the findings by the lower Courts on his guilt in the commission of the offence he was convicted and sentenced for. Atoyebi v. Gov., Oyo State (1994) 5 SCNJ, 62, (1994) 5 NWLR (pt. 344) 290, Capital Bancorp Ltd. v. Shelter Savings and Loans Ltd. (2007) 1 SC, 281, (2007) 3 NWLR (pt. 1020) 148, Chinwendu v. Mbamali (1980) 3 SC, 81.
I join in dismissing the appeal for the reasons set out in the lead judgment.
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: I agree in toto with the reasoning and conclusion reached in the judgment just delivered by my learned brother, the Hon. Justice Ejembi Eko, JSC to the effect that the instant appeal is grossly devoid of merits, thus ought to be dismissed.
Hence, having had the privilege of adopting the reasoning and conclusion in question as mine, I too hereby without much ado dismiss the appeal and uphold the concurrent judgment of the Court below, delivered on May 16, 2018 in appeal No. CA/EK/10C/17.
EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the Judgment of my learned brother, Lord Justice, EJEMBI EKO, JSC. I completely agree with the reasoning, conclusions, decisions, including the orders therein.
The Judgment of the Court of Appeal merely reproduced the grounds of the appeal before it and the issues raised for determination in the appellant’s brief and then pronounced thusly “All the three issues formulated by the Appellant having been resolved against him, this appeal must fail and it is accordingly hereby dismissed. The decision of the lower Court in charge No. HOM/1C/2013 delivered on the 21st day of June, 2016 convicting and sentence the Appellant is hereby affirmed”.
The Judgment did not show how the issues were resolved by it and the reasons for its conclusion that the appeal must fail and the decision dismissing the appeal. The judgment of an appellate Court on grounds and issues complaining that the judgment of the trial Court was wrong having regard to the evidence ought to show a consideration of the evidence in relation to the decision of the trial Court to find out if the complains in the appeal have merit or not. There is nothing in the judgment that show that the Court of Appeal made even the slightest effort to determine the issues raised for determination before it by considering the evidence in relation to the Judgment of the trial Court.
The conclusion that the appeal must fail is not derived from any reasoning. It is just a pronouncement without reasons.
It is of fundamental importance that reasons be given for conclusions and decision. This is because it is the reasons that show that the conclusion and decisions are derived from a consideration of the case before the Court and show the reasoning process that resulted in the conclusion and decisions. Without the reasons, the conclusions and decisions would clearly be baseless and perverse. The lack of reasons render the conclusions and decisions products of intuitiveness, irrationality and arbitrariness. See Agbanelo v. UBN Ltd (2000) LPELR – 234 (SC), Doma & Anor v. INEC & Ors (2012) LPELR- 78 22 (SC). In Obmiami Brick & Stone (Nig) Ltd ACB Ltd (1992) LPELR 21 77 (SC) this Court held concerning the absence of reasons for a dismissal of a claim thusly – “If that dismissal is meant to be, and in fact should be, a Judgment of the Court, reasons must be given. It is not for the appellate Court to speculate why a case was dismissed, non-suited or struck out- The reason for doing so must appear on the record of the lower Court. It is not a case of decision as canvassed by the appellant, it is in the interest of justice that any party should know why he has lost or won the case”
This Court in Ogboru v. Uduaghan & Ors (2012) LPELR – 8267 (SC) held thusly that “It has been stated in Abacha V Fawehinmi (2002) FWLR (Pt.4) 568 that the substance of a judgment of a Court is embodied in its ratio decidendi or ration(s) in the case, that is the reason or reasons for the decision(s) as against mere passing remarks”.
As it is, this judgment ought to be nullified and the appeal sent back to the Court of Appeal for rehearing. But, I do not think that course would meet the Justice of this case, considering that the nullification of this judgment would leave the judgment of the trial Court intact and subject the appellant to the inconvenience and expense of such rehearing and since this Court has the power by virtue of Section 22 of the Supreme Court Act 2004 to consider if the decision of the Court of Appeal dismissing the appeal to it and affirming the conviction and sentence by the trial Court is justified by the evidence on record, this Court would consider the evidence on record to find out if the Court of Appeal decision is supported by the evidence. This task is brilliantly handled in the lead judgment. I agree with the views on the evidence. I also agree that the evidence justifies the conclusion and decision of the Court of Appeal. I also dismiss this appeal.
Appearances:
Tunde Adeoye, Esq., with him, B. A. Ojo, Esq. For Appellant(s)
Olawale Fapohunda, Esq., A.G, Ekiti State, with him, Julius Ajibade, Esq., (DPP), Oluwakemi Folashade Ajumobi Esq., (Principal Legal Officer) and Ibironke Odetola, Esq., (Principal Legal Officer) For Respondent(s)