Sunday Udor V. The State (2014)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C.

This appeal is against the judgment of the Court of Appeal, Ekiti Division delivered on 25th March, 2011, affirming the conviction and sentences passed on the Appellant and his co-accused persons for the offences of conspiracy, murder and attempted murder of one Mayowa Adeleye and attempted murder of one Falade Ojo by the High Court of Justice of Ekiti State sitting at Ikole.

The case of the prosecution was that on 29th November, 1998, the deceased Mayowa Adeleye was sent by his mother, PW1, to deliver food to his father, who worked as a guard at Fiyintolu Odundun Comprehensive High School, Oke-Ayedun-Ekiti and on coming back home, to bring three-leaves yams from their family farm. The Appellant who was a tenant in the house of PW1, was present when the deceased was being sent on the errand to his father and the farm of the family.

However, the deceased boy Mayowa Adeleye never returned home and as a result of that a search party was organized in the town on the alarm raised by the parents of the deceased. In the course of the search, PW2, Falade Ojo was confronted in the bush at night by the late Sunday Jedege, who was charged along with the Appellant and three others for the offence for which the Appellant was convicted. The Appellant and his group prevented PW2 from searching the building where they were found and attacked PW2 who managed to escape from the building used by the Appellant and his group unhurt. On reporting this incident to the Oba of the town, the Oba ordered the search for the missing boy, and also ordered the immediate arrest of the Appellant and the other persons found with him.

The following day, the headless body of the deceased boy Mayowa Adeleye was eventually discovered in the bush near the house of the late Sunday Jegede who together with Appellant had attacked PW2 the previous night and prevented him from searching the house where they were found. The corpse of the deceased was partly covered by curtains belonging to the late Sunday Jegede. At the trial Court, the prosecution called 6 witnesses while the Appellant gave evidence in his defence but called no other witness. At the end of the trial, the learned Judge after very carefully considering the evidence before him, found the Appellant and 2 other accused persons tried along with him, guilty of the offences of conspiracy, murder and attempted murder. Part of the judgment at the page 139 of the record reads –

“All in all, I have made the following findings:

(a) That the accused persons are guilty of the offence of conspiracy as charged.

(b) That the circumstantial evidence adduced by the prosecution points to only one irresistible direction and that is, that the accused persons found and arrested in the bush on 29th November, 1998 and who attempted to murder PW2, were the same persons who by their acts, murdered the deceased.

(c) That by attacking PW2 on 29th November, 1998, all the accused persons together are guilty of the offence of attempted murder as charged.”

Consequent upon the findings of the trial Court, the Appellant was sentenced to death for offence of murder while the conviction for the offence of attempted murder, earned him life imprisonment. The Appellant’s appeal against his conviction and sentences was heard by the Court of Appeal Ekiti Division and in unanimous judgment delivered on 25th March, 2011, that appeal was dismissed. Still aggrieved with the decision of the Court of Appeal, the Appellant has further appealed to this Court by his Notice of Appeal containing 4 grounds of appeal from which his learned Counsel distilled 2 issues in the Appellant’s brief of argument, for the determination of the appeal. The 2 issues which were also adopted by the Respondent in the Respondent’s brief of argument are –

“1. Whether the learned trial Judge was right in holding that the prosecution proved its case against the Appellant, when the identity of the deceased for whose death the Appellant was charged was never established at the trial.

2. Whether the learned trial Judge was right in holding that the prosecution proved a case of murder and attempted murder against the Appellant beyond reasonable doubt and whether the Court of Appeal was right in upholding that decision.”

Starting with the first issue for determination, it is quite plain that the issue is not complaining against the decision of the Court of Appeal or any part of the judgment of that Court which is now on appeal before this Court. The issue also does not complain against the conduct of the Justices of the Court below in their decision dismissing the Appellants’ appeal. Rather, the issue is only complaining of the conduct of the learned trial Judge in his judgment finding the Appellant guilty of murder of the deceased in the absence of evidence properly identifying the corpse as that of the deceased, the subject of the charge of murder against the Appellant. This issue can only be properly raised at the Court of Appeal for resolution as the Appellant had already done at page 240 of the record of appeal. The issue having been properly raised and appropriately determined by the Court of Appeal against the Appellant, that issue cannot be raised again before this Court, the jurisdiction of which under Section 233 of the Constitution of the Federal Republic of Nigeria, 1999, is to hear appeals from the decisions of the Court of Appeal. In other words, the Court has no jurisdiction to entertain any issue in an appeal complaining of the decision of the trial High Court. See Francis Nwanezie v. Nuhu Idris and Another (1993) 3 N.W.L.R. (Pt. 297) 1 at 12 where Karibi-Whyte, JSC, in the lead judgment of this Court faced with similar situation with the 1st issue for determination in that case stated the law thus –

“The determination of 1st Respondent’s first issue is outside the jurisdiction of this Court. This Court can only exercise jurisdiction in respect of decisions of the Court of Appeal. The first issue is questioning the correctness of the judgment of the High Court. The ground of appeal filed is concerned with the error of the Court below. The formulation of the first issue, therefore did not arise from the grounds of appeal filed.”

This observation is exactly what happened in the present case where the first ground of appeal in the Appellant’s Amended Notice of Appeal, complained of the errors of the learned Justices of the Court of Appeal in their judgment now on appeal but the learned Appellant’s Counsel in framing the first issue for determination of the appeal, turned his complaint against the judgment of the trial Court over which this Court does not have jurisdiction. See also the cases of Harriman v. Harriman (1987) 3 NWLR (Pt. 60) 244 at 257 and Ibori v. Agbi (2004) 6 N.W.L.R. (Pt. 868) 78 at 142 – 143. Consequently, the 1st issue raised for determination in this appeal being incompetent, is accordingly hereby struck-out.