Akanbi Enitan Vs. The State (1986)

LawGlobal-Hub Lead Judgment Report

OPUTA, J.S.C. 

This appeal came up for hearing on Thursday, 13th March, 1986. After a careful perusal of the records of proceedings and the Briefs filed and after listening to learned counsel in elaboration of the major points taken up in their respective Briefs, I dismissed the appeal as completely lacking in merit and substance. I then said I would give my Reasons for Judgment on Friday, 6th June 1986.

Hereunder are those reasons. The three Appellants were in the court of first instance charged with Armed Robbery punishable by death under Section 1(2)(a) of the Robbery and Firearms (Special provisions) Act No. 47 of 1970. The learned trial Judge, Oduwole, J., on 13/4/84 found each guilty as charged, convicted each accordingly and sentenced each to death by hanging.

The 3 Appellants then appealed to the Court of Appeal Ibadan Division Coram Uche Omo, Dosunmu and Omololu-Thomas, J.J.C.A. In a lead judgment, Omololu Thomas (with Uche Omo and Dosunmu. JJC.A. concurring) dismissed the appeals of the 3 Appellants holding that:- “The conclusions of the trial Judge are justifiable in the circumstances ….In my view the guilt of the Appellants had been established with the necessary degree of certainty; and nothing had been urged on all the grounds of appeal to fault the judgment and accordingly, the grounds of appeal fail. The appeal is dismissed and the judgment of Oduwole, J. is hereby affirmed.”

Dissatisfied with the above judgment of the Court of Appeal the Appellants have further appealed to this Court: The original ground filed by each Appellant was the omnibus ground – “that the decision of the lower court is altogether unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.” This has been held not to be a proper ground of Appeal in criminal cases where proof is beyond reasonable doubt.

The weight of evidence will become material where the evidence on one side weighed against the evidence on the other side and the case is decided on the balance of probability as happens in civil cases. In criminal case, there is either evidence to support the conviction or there is not.

An Appellant appealing against a conviction in a criminal case on the facts has therefore, to allege that the verdict is unreasonable and cannot be supported having regard to the evidence. In the leading case of Samuel Aladesuru & Ors. v. The Queen (1955) 3 WLR 515; (1956) A.C. 49: Olisah Chukura’s Privy Council , Judgment p. 598, it was held that it is not a sufficient ground of appeal to allege that the verdict is against the weight of evidence. The phrase “against I the weight of evidence” was there held to be “inaccurate and cannot properly be substituted for the words of the statute.

The Ordinance gave no appeal on such ground and the Court of Appeal was entitled to require strict observance of its provisions, but that did not mean that in a proper case, the Court of Appeal would not give leave to appeal or review the evidence if a prima facie case was shown that the verdict appealed from was one which no reasonable tribunal could have arrived.”

I, on purpose, set out in some details the decision of the Privy Council in the case of Aladesuru supra because an application to file and argue additional grounds as was made in this appeal presupposes the existence of a valid ground of appeal to which the additional grounds are additional and can therefore be added to or, or can attach. There must first of all be a principal to which an accessory can attach. The same argument holds true of an application to file amended grounds of appeal. One cannot amend or add something to nothing just as one cannot make something out of nothing for ex nihilo nihil fit. The Court has been very liberal in allowing additional grounds or Amended grounds of appeal in cases of this nature where the principal or original ground is not even a ground of appeal. I appreciate that the Appellants are each appealing against a conviction carrying a death sentence but all the same it is my view that it is only in proper cases namely:-

1. if a prima facie case is shown that the verdict appealed from was one which no reasonable tribunal could have arrived at,

Or

2. if substantial points of law or procedure are raised in the additional grounds;

then in such proper cases the Court would give leave to appeal or review the evidence but not otherwise. If this procedure is followed many appeals that really have no merit whatsoever (as the present appeal) would be disposed of speedily.

The 1st Appellant obtained leave of Court to file and argue two Amended Grounds of Appeal namely:-

“1. That the conviction of the 1st accused/appellant is wrong in law and on the facts and the same ought to be quashed in that the Court of Appeal in affirming the conviction failed to observe:-

(1) that the learned trial Judge did not direct himself as to what evidence on record was admissible against each accused and in particular that in so far as the 1st accused is concerned the Statements of the 2nd and 3rd accused (who did not give evidence) is not evidence against the 1st accused.