Adaudu Shaibu V. The State (2017)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C.

The Appellant was accused of causing the death of “Ajari Mala Sule” [the deceased] by stabbing him with a spear on the chest, and also of voluntarily causing hurt to “Awawu Molo” and “lbrahim Pemida” by stabbing them with a spear on the left arm and mouth respectively.

The Obangede High Court of Kogi State [trial Court] found him guilty of the offence of culpable homicide punishable with death and convicted and sentenced him to death accordingly. The trial Court, however, struck out the other two heads of the Charge because they “should not have been joined to an offence as serious as the one in the first head – – especially when the alleged victims are different.

At the trial Court, the Prosecution called six witnesses and also tendered Exhibit 3, his statement to the Police, where the Appellant stated that he came home from school to meet the deceased and his brother beating his mother, and that it was when they brought out “charms, guns and animal hun (sic)”, that he entered his room and carried a sharp spear, which he used in hunting, to defend himself; and

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it was after the deceased’s brother, Yakubu, shot at him and the bullet missed that he used the sharp spear on the deceased’s chest.

The Appellant’s mother, Seriya Shaibu, testified as PW6 for the Prosecution, and she explained that there was a fight between one Obo and her stepson, Lasisi, over a girlfriend, and it was the said Obo that beat her. she insisted that the deceased did not beat her and that the Appellant came home “after the people fighting had left.

In his defence as DW1, the Appellant gave a different account of what happened. He said that when he came home from school, the deceased and his friends came to his house to abuse him, and it was while he was struggling to wrest the spear from the deceased, during the fight that ensued that the spear pierced him in the chest.

In his Judgment delivered on 20/6/98, the learned trial Judge, Olusiyi, J., found that he was an “untruthful and unreliable witness”, and rejected “his viva voce evidence in toto.” He further held that-

Standing on its own, the Prosecutions case is solid, formidable and unassailable. The admission of the Accused in Exhibit 3 that he used a

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spear on the chest of the deceased, corroborated the evidence of PW4 and PW5, thus lending weight to the case of the Prosecution.

The Appellant’s case at the trial Court was focused on self-defence, but his complaint in the Appeal filed at the Court below centered on the difference in what he said in Exhibit 3 and his defence as DW1.

The Court below expressed surprise that the complaint was not that the trial Court erred in not upholding the plea of self-defence, nonetheless, it held as follows on the issue of the said differences –

For the Appellant, so much fuss was made of the fact that [his] viva voce evidence was inconsistent with [Exhibit 3]. [He] did not expressly retract Exhibit 3. He must have realized from the evidence of PW4, PW5, and PW6 that his plea of self defence was hopeless and would not avail him. Hence his decision to try other defences like accident in his oral testimony. Apart from – – not giving the Prosecution sufficient opportunity to investigate this line of defence, the appellant was not on the same paragraph with his counsel at the trial Court. The said counsel maintained the line of self-defence. Even at that, the

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defence would appear unsustainable in view of the evidence of PW4, PW5 and PW6, – – – (His) counsel – – submitted that since the viva voce evidence of the Appellant on oath – – was inconsistent with his extra-judicial Statement [Exhibit 3], both should be disregarded as any evidence the Court could act on. I agree entirely. This however does not earn the appellant an order of discharge and acquittal on the available facts.

He also contended that if the trial Court had adverted its mind to paragraph 8 of Exhibit 1 (the Police Post Mortem Form) that says –

“Alleged cause of death: LYNCHED TO DEATH”, against what Exhibit 2 (Medical Report) says was the cause of death, it would have found that the findings at paragraph 11 of Exhibit 2 as the cause of death would have been injuries inflicted after the death of the deceased.

His argument was that there was no certainty as to whether it was the lynching or the alleged injuries on his chest that caused the death of the deceased, thus, the benefit of doubt should be resolved in his favour. The Court below, per Eko, JCA (as he then was), held –

The suggestion that the injury on the chest of the

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deceased could have been inflicted on the corpse after [his] death failed to take into consideration the evidence of PW4 and PW5 that in [his] presence, the deceased said that it was the Appellant, who stabbed him with a spear. He did not deny the assertion; he also attacked and injured PW4 and PW5, who are credible witnesses. [His] argument though fancifully laid out is a mere attempt to mislead and confuse issues. At the trial Court, there was no dispute as to who and what caused the death of the deceased. Appellants counsel in his final address stated-

PW4 and PW5 testified that the [Appellant] killed the deceased. There is evidence that (he) killed the deceased in self-defence. (His) Statement to the Police and his evidence in Court show that he acted in self-defence. I refer to Section 60 of the Penal Code, The prosecution has not rebutted [his] evidence that he acted in self-defence. I urge the Court to believe (his) evidence.

The Parties and this Court are bound by the record, [He] is accordingly not permitted to set up on appeal a case different from what he had set up at the trial Court. The Appellant’s counsel though pontificating

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that he did not want to sound academic, did exactly that when he expended his useful time in the semantics between the words “pierce” and “struck”. He submitted that PW4 And PW5 – – stated that [he] “pierced” the deceased with a spear – – and that under cross-examination, they each stated that (he) struck the deceased with a spear. There is nothing contradictory in the use of these words. The Appellants counsel is merely being semantic and academic – – the important thing is whether the Appellant used the spear to stab deceased on the chest, So it becomes immaterial whether he used the spear to strike or pierce the deceased.

The Court below concluded that the effect of exclusion of Exhibit 3 and his sworn testimony is that the Appellant had no viable defence; and since the Prosecution proved its case beyond reasonable doubt, it dismissed the Appeal and affirmed the Judgment of the trial Court.

Dissatisfied, the Appellant appealed to this Court with a Notice of Appeal containing seven Grounds of Appeal but he abandoned Grounds 4 and 5, and formulated one issue for Determination from Grounds 1, 2, 3, 6 and 7 in his Brief of Argument and that is

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simply whether the lower Court was right when it upheld his conviction.

The Respondent adopted the Appellant’s issue in its own Brief. This time, and in this Court, the Appellant’s complaint is as regards “the alleged discordant statements made by the deceased heard at different times by PW4 & PW5 held to amount to dying declaration.”

On the issue of dying declaration, the trial Court stated as follows-

Of all the prosecutions witnesses, only PW4 and PW5 come closest to being eye-witnesses. Although they did not see the [Appellant] use a spear on the chest of the deceased, they came to the scene almost immediately and the deceased told them what [he] had done to him. They saw the (Appellant) standing beside the deceased with a spear. As if to confirm what they had just heard from the deceased, the (Appellant) attacked them with his spear, thus scaring them off.

Relying on Section 33(1) of the Evidence Act, 1990, it went on to say –

The deceased, who had been stabbed on the chest with a sharp spear, and was lying down on the ground crying, was definitely in danger of approaching death – – The words of the deceased to PW4

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and PW5 are clear, precise and unambiguous – – that the [Appellant] pierced his chest with a spear – – I hold that the dying declarations of the deceased to the PW4 and PW5 have met all the required conditions to make them relevant, admissible and applicable.

The Appellant did not appeal against this finding by the trial Court, and there was no mention of dying declaration at the Court below.

The Respondent submitted that when a party is to raise a fresh issue on appeal, he ought to obtain leave before he can argue same, which the Appellant did not comply with – Director, SSS V Agbakoba (1999) 3 NWLR (Pt. 595) 315 SC and Obiakor v. State (2002) FWLR (pt. 113) 299 cited. It still proffered its own arguments on the issue

There is no connection between this Court and the trial Court; not directly anyway. The findings of a trial Court must be affirmed or reversed by the Court below before its decision gets to this Court.

It is settled that before a pronouncement on its correctness can be made by this Court, it must be shown that the views expressed by that Court are wrong. It is only on such consideration that this Court can examine whether

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its Judgment is right or wrong – see Uor V. Loko (1988) 2 NWLR (Pt.77) 430, where Karibi-Whyte, JSC, added –

The appellate Court is entitled to have the benefit of the opinions of the judges in the judgments of the Court below. It is the opinion appealed against, which is affirmed or reversed. Hence, without the benefit of such opinion, an appellate Court will be extremely reluctant to interfere. Any Judgment — founded on grounds not canvassed in the Court below and not adverted to and pronounced upon in the judgment appealed against ideally is not an appeal against such a judgment. Since an Appellants right of appeal is circumscribed within the parameters of the judgment appealed against, this Court will not lightly permit impugning the judgment on grounds of error other than are contained therein.

See also Djukpan V. Orovuyovbe (1967) 1 All NLR 134 and Ajuwon V. Adeoti (1990) 2 NWLR (Pt. 131) 271 SC, wherein Nnaemeka-Agu, JSC, advised counsel to adhere to what Lord Birkenhead, L.C., had said in North Staffordshire Railway Co. v. Edge (1920) A.C. 254; as follows

The efficiency and authority of a Court of Appeal, and especially of a

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final Court of Appeal are increased and strengthened by the opinions of learned judges, who have considered these matters below. To acquiesce in such an attempt as the Appellants have made in this case, is in effect to undertake decisions, which may be of the highest importance, without having received any assistance at all from the judges of the Court below.

In any event, a party is not shut out from raising a fresh point or issue in this Court but it requires leave before it can be entertained –

See Ajuwon V. Adeoti (supra), wherein Nnaemeka-Agu, JSC, added –

This Court has not only deprecated any attempt to, as it were, without leave, steal the show at the highest level. It has also gone ahead to lay down guidelines as to when such leave may be granted. See, for example, Stool of Abinabina v. Enyimodu (1953) 12 WACA 171, Ejiofodomi V. Okonkwo (1982) 11 SC 74.

In this case, the Appellant also raised another fresh issue touching on non compliance with Section 249 (3) of the Criminal Procedure Code, which was not raised at the trial Court; not to mention Court below.

The said Section 249 {3) of the CPC provides as follows –

(a) A

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written report by any medical officer or registered medical practitioner may at the discretion of the Court be admitted in evidence for the purpose of proving the nature of any injuries received by and physical cause of the death of any person who has been examined by him.

(b) An admission of such report, the same shall be read over to the accused and he shall be asked whether he disagrees with any statement therein and any such disagreement shall be recorded by the Court.

It is his contention that the failure to inform him that he had a right to disagree with the Medical Report tendered at the trial Court is fatal to the Prosecution’s case, and occasioned miscarriage of justice.

He did not raise or even mention this issue at the trial Court, and I will reiterate the point I made earlier that a fresh issue can only be argued with leave of Court. This is because, as an appellate Court, this Court only has jurisdiction to correct errors of the Court below – See Director, SSS V. Agbakoba (supra), Obiakor V. State (supra).

See also Akpabio v. State (1994) 7 NWLR (Pt. 359) 635 SC, where this Court, per lguh, JSC, explained the position, as

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follows –

An appellate Court will not generally allow a fresh point to be taken before it if such a point was not raised and pronounced upon by the Court below unless of course, the question involves substantial points of law and no further evidence needs be adduced to determine the matter and such a course of action is necessary to prevent an obvious miscarriage of justice.

In this case, Appellant wants to bring in the issue of dying declaration that was not canvassed at the Court below. He also wants this Court to consider another issue relating to Section 249 (3) of the CPC that was not raised or argued at the two lower Courts. The Court below was not given the opportunity to express any views on both issues, which would have allowed this Court beam its searchlight thereon.

What is more, he did not seek leave of Court to raise and argue the said fresh issues, and l am satisfied from reading the record that the questions raised thereby do not involve substantial points of law. The outcome is that the issues will and are hereby discountenanced.

The only issue left is his complaint that the two lower Courts wrongly relied on Exhibits 1 and

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2, and he submitted as follows-

“Exhibit 1 shows that on 20/1/94, PW1 allegedly took the corpse- to the mortuary for post mortem examination. Under item 4 on Exhibit 1, it is stated that one Ademoh Jimoh was inserted as the person that would identity the corpse to the Pathologist. Under item 6 of Exhibit 2 captioned By whom identified” no name is stated, which means that the corpse examined by the Pathologist was not identified by Ademoh Jimoh. While Exhibit 2 says the corpse was received at the mortuary by 9.15am on 21/1/94 and post mortem performed on 21/1/94. Exhibit 1 says the corpse was received by 19.35 hours on 20/1/94.”

He contends that there is a material contradiction in Exhibits 1 and 2 relating to time the corpse was received. He further argued that –

“lf as Exhibit 1 says it was dumped at the hospital on 20/1/94, and Exhibit 2 says it was by 9.15am on 21/1/94 the question begging for answers would be whether the corpse examined by the Doctor is the corpse of the deceased given the fact that no one identified the corpse. Another puzzle equally begging for answer is how the doctor came to know the name of the deceased that was

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inserted under item 5 of Exhibit 2 in the absence of any information relating to the identity of the corpse given to the Pathologist. To worsen the confusion Exhibit 1 says the deceased that was deposited at the mortuary was lynched.”

He conceded that the Court below rightly stated that where a person dies shortly after an attack by an accused, it presumed that it is the accused that killed him, but argued that the evidence acknowledged by the lower Courts is that no witness saw him when he allegedly wounded the deceased; that if Exhibits 1 and 2 are excluded as a basis for conviction, and given that Exhibit 3 and his testimony were disregarded, it means only the testimony of the near eye-witnesses, PW4 and PW5 can support the conviction; and that none of the witnesses gave evidence that he was there when the deceased died.

The Respondent argued that the deceased died of the injury he sustained from the sharp spear stab he received from the Appellant; that he died on being conveyed to the hospital by his mother, PW5 immediately after he was stabbed in the chest by the Appellant; and that it is settled law that once a person dies in those circumstances,

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the only logical conclusion is that the deceased died from the injury sustained from the spear stab, and no medical evidence is necessary (although the Prosecution procured one) to prove its case – Akpan V. State (1992) 6 NWLR (Pt. 248) 239, Emwenya v. A.G Bendel (1993) 6 NWLR (Pt. 297) 29 and Akpuenya V. State (1976) 11 SC 269 cited.

Furthermore, that the Appellant’s argument about the body of the deceased not being identified, goes to no issue; and a perusal of the said Exhibits 1 and 2 will reveal that the corpse was identified –

“The name of the deceased is endorsed, the Police Officer who took the corpse for post mortem report was also indicated, and the name of the Medical Officer who did the report was also boldly endorsed on the report.”

It submitted that PW4 and PW5 both saw the Appellant at the scene, where he also attacked them, and it is absolutely wrong to advance any argument as to the identity of the corpse for which a medical report that clearly identified the deceased, was presented; and that assuming without conceding that there were contradictions in the said Exhibits 1 and 2. It is immaterial and will not affect the findings

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of the lower Courts to necessitate setting it aside for being perverse Ibe v. State (1992) 5 NWLR (Pt. 244) 624, Onubogu V. State (1974) 1 All NLR (Pt. 11) 5 and Nasamu V. State (1979) 6-9 SC 153 cited.

So, the appellant’s choice of attack against the decision of the Court below appealed against is on the identification of the corpse.

He was charged with culpable homicide punishable with death. The position of the law is that where medical evidence is essential as to the cause of death, it is invariably also essential that the person, who allegedly identified the corpse of the deceased to the Doctor, is called to testify as to identification, unless identity of the deceased can be inferred from the circumstances of the case – see Enewoh V. State (1990) 4 NWLR (Pt. 145) 469, wherein Akpata, JSC, explained –

The position, however, is that if there are facts from which it can be inferred that the corpse examined by the doctor was that of the deceased, the evidence of the person, dead or alive, said to have identified the corpse is not indispensable. Indeed, a conviction for murder can be made without the recovery of the dead body if there is

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positive evidence that the deceased has been killed. In effect, the need for anyone to identify the body of the deceased to a doctor is not a sine qua non in all murder cases. Besides, it is also trite law that medical evidence though desirable in establishing cause of death in a case of murder, is not essential provided that there are facts, which sufficiently show cause of death to the satisfaction of the Court.

In that case, Enewoh V. State (supra), the deceased’s shouts of “Ukwa Egbe is killing me”, brought his wife, PW1, to the scene where she saw Appellant hitting him with a rod. The Appellant’s son, PW4, pleaded with his father to stop hitting the deceased. But he kept on, and the deceased later died in hospital. The person, who identified the corpse to the doctor, died before trial. This Court held that –

Where the totality of the evidence – – showed unmistakably that the body on whom a doctor performed a post mortem examination was that of the deceased, a separate witness, though desirable, is not a necessity.

In this case, PW4, lbrahim Pemida testified as follows –

“On 20/1/94 I was returning from where I had gone to ease myself when

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I saw Sule Ajari, at his house, crying that the accused person, Adaudu Shaibu, pierced him with a spear on the chest. While I was asking the accused, who was also at the scene, what happened, he struck my mouth with the spear he was holding. I was then taken to the hospital. When I returned from the hospital I was informed that Sule Ajari had died (sic).

Awawu Mala, the deceased’s mother, testified as PW5 and she said –

On 20/1/94 about 7.00pm I was in my house when I heard my son crying outside. I ran out where I saw my son lying down on the ground with the Accused Person standing by his side. As I was lifting my son up, the Accused struck me on my hand with a spear. My son said to me that one Lasisi gave a spear to the Accused Person with which he pierced him on the chest. When the Accused struck me with his spear I ran back to my house to call for help. My daughter went to look for a vehicle which conveyed my son to the hospital. My son later died at the Abdulraham’s Hospital, lnozioni (Sic).”

Exhibit 1 has two parts; the first is “filled by Police when forwarding a corpse to a medical officer for post-mortem examination”, and the second is

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“filled by the medical officer and handed over to the Police escort immediately on completion of the post mortem.” The first part has the name of the deceased [item 1]; the person, who will identify corpse to the medical officer – “Ademoh Jimoh Ogaminano” [item 4]; the date sent to the hospital 20/1/94″ [item 5]; alleged cause of death – “lynched to death” [item 8]. The second part of it reads –

Approximate date of death – 20/1/94

Approximate time of death – 1935 Hours

Brief Notes of post-mortem Findings – Severe stab wound on the thorax (sic) case causing hemorrhage and pneuno thorax.

Exhibit 2 is the REPORT OF MEDICAL PRACTITIONER, and it reads –

1. Date and hour of receipt of corpse of Mortuary – 21/1/94 9.15am
2. Date and hour of holding examination – 21/1/94
3. Name of deceased (if known)- Ajari Malla Sule
4. By whom identified…
5. Probable date of death – 20/1/94 8pm
6. Medical Report – Deep Stab wound measuring about 2cm by 2cm at (Rt) apex of the (Rt) hemithorax reaching the lung tissue.

(SGD) Medical officer

21/1/94.

These are the pieces of evidence the Appellant is

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quarreling with. His bone of contention is that the evidence of PW4 and PW5 and the Exhibits are unreliable in identifying the corpse that was examined, and determines whether he had caused the death of the deceased.

Obviously, there is no substance to the Appellant’s arguments. The Appellant pointed to some discrepancies in the said two Exhibits but these are minor discrepancies that are of no effect whatsoever. It is settled that contradiction that will be fatal must be substantial. Minor contradictions that do not affect the credibility of witnesses, as in this case, may not be fatal. The contradiction must relate to the substance of the matter – Uche v. State (2015) LPELR-249693 (SC).

In this case, the contradictions referred to are inconsequential. The evidence of PW4 and PW5 paint a vivid picture of the incident. There is no question that the Appellant stabbed the deceased and there was no lacuna or break in the sequence of events from when the deceased was stabbed until his corpse landed at the mortuary – PW5 said she heard his cries at 7pm; the time of death in Exhibit 1 is 1935 Hours; and in Exhibit 2. Probable date of death is 20/1/94

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8pm.

This Court held in Ben V. State (2006) 16 NWLR (Pt. 1006) 582 that medical evidence is not essential in establishing this issue where the deceased was attacked with a lethal weapon and died instantly. In that case, Ben V. State (supra), Akintan, JSC, stated as follows –

Where a man was attacked with lethal weapon, and he died on the spot, cause of death can properly be inferred that the wound inflicted caused the death. Put in another form, where the cause of death is obvious, medical evidence ceases to be of any practical or legal necessity in homicide cases. Such a situation arises where death is instantaneous or nearly so.

Katsina-Alu, JSC (as he then was), further observed as follows –

The Appellant struck the deceased on the head – – He fell down unconscious, never regained consciousness until he died a few hours later in hospital. Medical evidence was not necessary to determine the cause of death in the circumstances of this case. It could properly be inferred that the wound inflicted caused the death of the deceased.

As to identification of the corpse, which he made so much fuss over, the decision of this Court in Enewoh V.

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State (supra), seals that door. This Court made it very clear in that case that where the totality of the evidence adduced showed unmistakably that the body on which, the doctor performed a post mortem examination, was that of the deceased, a separate witness, though desirable, is not a necessity.

In this case, the said Exhibits 1 and 2 contained relevant details indicating that it was the body of the deceased that was examined by the medical officer, who signed Exhibit 2. The fact that the name of the person, who was to identify the deceased, was not on the Form, is not sufficient to find to the contrary in the face of all the evidence

The Respondent argued that this Appeal is a mere afterthought and voyage of discovery or at best an academic exercise to waste the time of this Court; that Courts are enjoined to desist from embarking on such academic exercises when deciding cases as it will not help the cases of litigants nor contribute meaningfully to the development of our legal jurisprudence – Adebayo V. Babalola (1995) 7 NWLR (PT. 408) 383 and Fawehinmi V. Akilu (1987) 4 NWLR (PT. 57) 797 cited.

Furthermore, that the Appellant at the trial

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Court set up a case of self-defence; on appeal to the Court below he set up another case for contradiction in the evidence to discredit the Prosecution’s case; and in this appeal, he had brought in the issue of dying declaration, which brings to the fore inconsistency in has case since he changes his reasons for going on appeal at every ladder/stage of his appeal.

I agree; this is, undoubtedly, not the way to pursue an appeal, particularly, an appeal against a death sentence. The Court below pointed this out when the Appellant dropped the defence of self-defense that he relied on at the trial Court, only to come up with the complaint at the Court below about the difference in what he said in Exhibit 3 and evidence as DW1. The Court below disregarded both

Apparently, he did not heed the warning by the Court below that he cannot set up a different case on appeal from the trial Court, because he went straight ahead to do the same thing in this Court – set up on appeal a different case from what he set up in that Court. Even worse, argue fresh issues that were not raised in that Court

Without any hesitation, I say that the Appeal totally lacks merit.

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Besides, there is not much this Court can do when an Appeal turns on the issue of credibility. The trial Court is at liberty to believe one side or disbelieve the other, and that belief can only be questioned on appeal if it is against the drift of the evidence when considered as a whole – see Adelumola v. The State (1988) 1 NWLR (Pt. 73) 683.

As Oputa, JSC, so aptly put it in Adelumola V. The State (supra), “for example, we all know that 2 plus 2 makes 4. If a witness testifies that 2 plus 2 makes 5, and he is believed, his arithmetic does not cease to be wrong because the trial Court erroneously believed him. There, and in such a case, an appellate Court can intervene.”

In this case, there is more than enough evidence established to support the concurrent findings of the trial Court and Court below. In the circumstances, this Court is not in the position to intervene.

Thus, this Appeal fails, and is dismissed. The Judgment of the Court below upholding the trial Courts decision is hereby affirmed.

SC.287/2012