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Bassey Akpan Archibong V. The State (2006) LLJR-SC

Bassey Akpan Archibong V. The State (2006)

LAWGLOBAL HUB Lead Judgment Report

D. MUSDAPHER, JSC 

In the High Court of Justice of Akwa Ibom State in the Uyo Judicial Division, the appellant was arraigned and tried and convicted on an information containing PAGE| 2 one count charge to wit: murder, contrary to section 319(1) of fee Criminal Code Cap 31 vol. 11 Laws of Cross River State applicable to Akwa Ibom State. The particulars of which were that on the 5th day of July, 1988, at Babara fen, No.22 Uko Eshiat Street, Uyo in the Uyo Judicial Division, the appellant murdered Bernadette Edem Essien. The appellant pleaded not guilty to the charge and at the ensuing trial, the prosecution called four witnesses and closed its case; after which, the appellant whose “no case submission” was overruled testified on his own behalf and called no other witness. The case of the prosecution as narrated by the witnesses was that on the 5th day of Jury, 1988, Bernadette Edem Essien (the deceased) and the appellant went to Babara Inn at about 3.00 p.m. After ordering and taking some drinks, the appellant booked for a room at the inn. The rate they charge was N2.00 per hour. The appellant and the deceased were checked into the room by one of the waiters or attendants called Peter Paulinus (P.W.3), the appellant and the deceased moved into the room and locked themselves by about 6.00 p.m. At about 7.00 p.m. P.W.3 knocked at the door of the chalet to ask for the money due for the hiring of the chalet and for me drinks taken by the deceased and the appellant. The appellant responded and stated that he would pay when he came out He asked for a little extra time. At about 8.00 p.m. P.WJ knocked at the door of the chalet again) and there being no response, he opened the door, switched on the lights and in the room, he had somehow mysteri-ously disappeared. He observed the woman lying naked, motionless and dead on the floor and observed foams from her mouth and nose. The clothes the woman wore were thrown on a table in the room. P.W.3 drew the attention of P.W.2 Margaret Otu Udo who was a waitress or attendant at the Babara Inn. Early on the following morning the 6th of July 1988, the proprietor of Babara Inn, Paulinus Bassey Etim (P.W.1) was alerted about what had happened in his Inn. He promptly went into the chalet and after observing the deceased still lying naked on the floor with her clothes on the table and asked P.W.1 and P.W.2 to lodge a complaint with the Police. P.W.1 and P.W.2 were detained by the police until the appellant was arrested. Both P.W.1 and P.W.2 knew the appellant as a customer at the Inn. That occasion of the 5/7/1988 was not the first time, the appellant came and hired a room with die deceased. The appellant and the deceased were regular customers, coming to the Inn and renting chalets. In fact, P.W.3 thought the deceased was the wife of the appellant. It was apparently based on the description of the appellant made by P.W.2 and P.W.3 that the police were able to arrest the appellant And in the midst of policemen in uniform and others, P.W.1 and P.W.2 picked out the appellant in an identification parade. Subsequent medical examination of the deceased by P.W.4, Dr. Udeme Daniel Akpan, revealed that the deceased died due to suffocation either by strangulation or by some either means and that the bruises on her body and the act of strangulation could not be self inflicted. In both his statement to the police Exhibit A and in his evidence before the trial court, the appellant admitted knowing the deceased to be the wife of his half brother or sometimes wife of his cousin well known to him. He however admitted that he saw her in the vicinity of the Inn at one time. He sought to put up a defence of alibi but that only explained his whereabouts from morning up to about 3:00pm on that fateful day. According to him, his son was ill on that day and he had taken him to a native doctor, who was also his brother, Effiong Archibong, and had only returned home with the son at about 3.00 p.m. on that date and had not gone out any where from that time, hi a considered judgment delivered on the 1/8/1991, the learned trial judge, Umoren J, (as he then PAGE| 3 was) reviewed the evidence and rejected the alibi set up by the appellant. He convicted the appellant for the murder of the said Bemadette Edem Essien and sentenced him to death. The appellant appealed to the Court of Appeal where two issues were submitted to that court for the determination of the appeal. The issues were;- “(1) Whether the identity of the appellant as the perpetrator of the crime charged was proved beyond reasonable doubt (2) Whether the circumstantial evidence was direct, positive, cogent and compelling to warrant the conviction of the appellant.” After the consideration of the submissions of counsel in the briefs and oral arguments, the Court of Appeal, resolved the issues against the appellant and affirmed, the conviction of the appellant for the murder of Bemadette Edem Essien and also confirmed the sentence of death imposed. This now, is a further appeal to this court. In his brief for the appellant, the learned counsel has identified, formulated and submitted to this Court 3 issues arising for the determination of the appeal, the issues read:- “1. Was the lower appellate court right to have affirmed the finding of the trial court to me effect that the two prosecution witnesses sufficiently knew the deceased person before the date of the incident and correctly identified him as the person who brought the deceased woman to the hotel on that fateful day. 2. In all the circumstances of this case, was the lower appellate court right to affirm the conviction of the appellant for murder when the case of the prosecution is not free from doubt.” 3. Was Exhibit A properly received in evidence? And if the answer is in the negative did the wrongful admission of Exhibit A lead to a miscarriage of justice.” The learned counsel for the respondent on the other hand has submitted the following two issues arising for the determination of he appeal:- “1. Was the Court of Appeal right in affirming the conviction of the accused person by the trial court. 2. Whether the admissibility of “Exhibit A” in evidence occasioned any miscarriage of justice.” I shall, however treat this appeal on the basis of the issues as discussed by the learned counsel for the appellant in the appellant’s brief. ISSUE NO.1 This is concerned with whether the identity of the appellant as the perpe-trator of the crime was established beyond reasonable doubt. It is argued that both P.W.2 and P.W.3 who claimed familiarity with the appellant did not in actual fact know him well enough. It is conceded that this issue is concerned with the concurrent findings of fact by two courts and this court will only up turn concurrent findings of fact where such finding is perverse or when it will result in a miscarriage of justice. It is submitted that this is a proper case in which this court should interfere and reverse the findings of fact. It is submitted mat the law is settled that the identity of an accused will not be in doubt if there is evidence before the court showing the opportunity the witnesses had to identify the accused as the assailant vide Olalekan V. State [2001] 18 NWLR (Pt 744), (2001) 2 SCM 104; Ajibade V. State [1987] 1 NWLR (Pt.48) 205. But such evidence should be received with caution and it must be weighed against every available evidence. See Abudu V. State [1985] 1 NWLR (Pt. 1) 1. In the instant case, although it is evident that the appellant was known to and was identified by both P.W. 2 and P.W.3, yet the witnesses did not identify him by name. Learned, counsel submitted, doubt exists, even though P.W.3 described the appellant to the police which description enabled the police to arrest the appellant Further to the above, P.W.2 and P.W.2 identified the appellant because he was chained. It is argued that the chains prod P.W.2 and P.W.3 to identity the appellant, it is argued that without the chains the witnesses would find it impossible to identify the appellant It is again added, that if it was true that the appellant was a frequent user of the chalets in the hotel room why was it necessary for him to ask P.W.3 what the rate of hire was?. It is argued that a combination of these facts will reveal that the identity of the appellant did not measure up to the standard required. The evidence was not properly evaluated by the trial Court See Oje V. State [1972] SC 23. The learned counsel for the respondent on the other hand argued that the identification of the appellant by P.W.2 and P.W.3 was a concurrent finding of fact by the lower courts and can only be reversed upon exceptional circumstances by a further appellate court. See Olokotintin V. Sarumi [2002] 13 NWLR (Pt. 784) 307, (2002) 12 SCM 165; Jonason Wangles Ltd V. CM & P Ltd [2002] NWLR (Pt.789) 194, (2002) 13 SCM 68; Akaluka V. Yongo [2002] 5 NWLR (Pt. 759) 135, (2002) 4 SCM 1. It is submitted that the issue of identification is in the exclusive preserve of the trial court. See Orimoloye V. State (1984) NSCC 654 at 657. The evidence led by both P.W.2 and P.W.3 is beyond any doubt that they knew the appellant well before the fateful day. Not only that, the appellant himself conceded that he knew both P.W.2 and P.W.3 at the Inn. The fact that it was common ground that the appellant and the witnesses knew each other, makes it unnecessary for the identification parade See Igbi V. State [2000] 3 NWLR (Pt. 645) 169; Ibrahim V. State [1991] 4 NWLR (Pt.186) 399,Adeyemi V. State [1991] NWLR (Pt. 170) 679. It is further submitted that the credibility of both P.W.2 and P.W.3 in relation to the identification of the appellant was beyond doubt when the appellant himself admitted both in his evidence and in his statement to the police that he knew both P.W.2 and P.W.3 to be staff in the Bahara Inn. It is further argued that it is not a necessary condition for the identification of a person by another that the name of the identified person must be known see Ibrahim V. State [1991] 4 NWLR (Pt. 186) 399; Adegemi V. The State [1991] NWLR (Pt. 170) 679 Now, whenever the case against an accused person depends wholly or substantially on the correctness of the identification of the accused which the defence alleges to be mistaken, the court must closely examine and receive with caution the evidence alleged before convicting the accused on die correct-ness of the identification. See Eyesi V. The State [2000] 15 NWLR (Pt. 691) 555 at 557. Identification in this correction means a whole series of facts and circumstances for which a PAGE| 5 witness or witnesses associate an accused person with the commission of the offences charged. It may consist of or include evidence in the form of finger print, hand writing, voice, identification parade, photographs, or the recollection of the features of the culprit by a witness who saw him in the act of commission of a crime or a combination of two or more of these see State V. Aigbanbee [1988] 3 NWLR (Pt 84) 548; Anyanwu V. State [1985] 5 NWLR (Pt. 43) 612. The question whether an accused person was properly identified or not is a question of fact to be considered by the trial judge see Orimoloye V. State (supra), In a criminal trial where it is suggested that a piece of evidence casts doubt in the prosecutions case, it is necessary to show, unless such is manifest or evident from the records, what aspect of the case becomes doubtful by reason of the evidence. In the instant case therefore, it plainly illogical to attack the credibility of P.W. 2 and P.W.3 on the identification of the appellant, when the appellant himself concedes mat both P.W.2 and P.W.3 were known to him before the date of the incident in question. In my view, considering the whole circum- stances of this case, it was otiose to hold an identification parade. It is not in every case that an identification parade becomes necessary. See Adeyemi V. The State (supra). In the present case; rather than be a case of mistaken identity it was one of recognition and knowledge of the appellant who was already known to the witnesses prior to the date of the incident in question. The appellant who by his statement to the police and his evidence admitted the knowledge of him by both P.W.2 and P.W.3 can hardly complain of any mistaken identity. In my view, the identification of the appellant as the person who went into that room with the deceased on that fateful day by P.W.2 and P.W.3 was a concurrent and consistent finding of fact both by the trial court and Court of Appeal, I have myself examined the evidence and I am also of the view that the finding is supported by the evidence led. Nothing has been shown, to convince me that the finding is perverse or that it has occasioned any miscar-riage of justice. I accordingly resolve the issue against the appellant ISSUE 2 The complaint under this issue is whether the Court of Appeal was right to affirm the conviction of the appellant for murder when the case of the prosecution is not free from doubt. It is submitted that the prosecution relied on circumstantial evidence to prove the guilt of the appellant, however to ground a conviction on circumstantial evidence, such evidence must be unequivocal, positive and point irresistibly to the guilt of the accused person. See Oladejo V. The State (1987) 2 NSCC 1026; Lori V. The State (1980) 8-11 SC 81. It is submitted that where circumstantial evidence is relied upon, it must be narrowly examined to be sure that there arc no co-existing circumstances which would weaken or destroy the inference. See Ebre V. The State [2001] 12 NWLR (Pt. 728) 617, Teper V. R. [1953] AC 480, Ukoroh V. The State [1980] 1 – 2 SC 116. It is submitted in the instant case, that there are existing a lot of circumstances which weaken and destroy the inference of the appellant’s guilt. There are: (1) The identification of the appellant as discussed in Issue No. 1 above. (2) P.W.2 and P.W.3 were initially detained and no reason, was given for identification parade. The Investigating Police Officer did not testify at the trial and no reason was also offered by the PAGE| 6 prosecution. The Investigating Police Officer is a vital witness vide Idowu V. The state [2000] 12 NWLR (Pt. 680) 48. (3) That there were inconsistencies and contradictions in the evidence of the prosecution witnesses. It is argued that the fact that the issue of contradiction were not raised at the trial court, there was nothing in law that would debar from raising them in the Court of Appeal vide Adewusi V. Popoola [1998] 12 NWLR (Pt. 579) 579 at 585. It is submitted that the Contradictions weaken the inferences that were drawn. (4) There was no evidence as to the identity of the woman who was said to have died. The onus was on the Prosecution vide Oladimeji V. The State (supra). The doctor who performed the post mortem examination in his evidence claimed that the corpse was identified to him by Comfort Essien, Comfort Essien did not testify. The trial judge acted erroneously when he held that under the circumstances of this case, there was no need for medical report as to the cause of death and conseq- uently there was no need to identify the body. It is finally submitted that the circumstantial evidence is full of holes and it is not safe to convict the appellant on such evidence. The learned counsel for the respondent on the other hand argued that, the arrest of P.W.2 and P.W.3 by the police or me failure of the Investigating Police Officer to testify and or tender the statement of P.W.3 [describing the appellant] was not material to the case of the prosecution. It is submitted that these matters are not germane howsoever in the determi- nation of the core issues before the trial court. The fundamental and crucial issues are whether PW2 and PW3 knew the appellant and could identify him as a regular customer to the hotel and the involvement of the appellant with the murder of the deceased. The court could not be compelled to use the identification parade. See Ogbodi V. The State (1987) 2 NWLR (Pt. 54) 20. It is added that the absence of the IPO and PW3’s statement to the police did not weaken howsoever the credibility of the evidence, adduced. It is further argued that the alleged contradiction and the inconsistence cited are not material and did not affect or weaken the evidence adduced. It is submitted that: the circumstantial evidence in this case is “direct, positive, unequivocal, cogent and compelling.” See Ebre V. State supra; Oladejo V. State (supra); Lori V. State (1980) 8 – 11 SC 81, Vol. 1 ACLC 205. It is further submitted that for contra-dictions to be material and damaging to the prosecutions case, it must be substantial and fundamental to the main issue in question so as to affect the credibility of the evidence. See Theo-philus V. State [1996] 1 NWLR (Pt. 423) 139. Igbi V. State (supra) Khaleel V. The State [1997] 8 [NWLR] (Pt. 516) 237; Iko V. State [2000] 9 NWLR (Pt. 671) 54, (2001) 11 SCM 112. It is further submitted that the issues of contradictions in the evidence, is a fresh issue as it did not arise for determination in the trial court, and that although the Court of Appeal held that the issue was a fresh issue and no leave, was sought and obtained to raise it, yet went a head to discuss it and rightly held that the so called contradiction are not material. It is further submitted that the identity of the deceased was also raised for the first time in the Court of Appeal without leave and no leave also sought to raise it in this court. See Ikpo V. State [1995] 9 NWLR (Pt. 421) 540. It is further submitted that requirement of identification evidence is not always necessary since P.W. 2 and P.W.3 who knew both, the PAGE| 7 appellant and the deceased before, identified the deceased as the woman the appellant used to bring to the hotel and saw her dead in circumstances that only the appellant have killed her and no one else. Now, under our criminal jurisprudence where doubt exists in the mind of the court on the guilt of an accused person, the court should acquit and discharge the accused. See Shande V. State [2005] 2 NSCQR 756, (2005) 8 SCM 125. Insufficiency of evidence or lacking in credibility of evidence cannot ground a conviction of a criminal offence. But a conviction of murder may be secured upon circumstantial evidence, that is the evidence which unequivocally points to one direction only – that the accused person was the one who killed the deceased. It must be evidence, that is cogent, complete, unequivocal, compelling and must lead to the irresistible conclusion that the accused and no one else is the murderer see. Lori V. State (supra), Ashipe V. State [1971] 1 ALL NLR 50, Ugwu V. State [1972] 1 SC 128. In the case of Nwokoronkwo V. The State [1972] 1 SC 135, it was held that a court may convict an accused person of murder even though the dead body cannot be found, provided that there is sufficient compelling circumstantial evidence to lead to the inference that the man had been killed. See also Ayinde V. The State [1972] 3 SC 153 at 158-159 where this court per Coker, JSC said: “On this point, the learned trial judge directed himself; thus:- “The law as regards the absence of a corpus delicti is that a court may still convict an accused person of murder even though the dead body cannot be found, provided that there is sufficient compelling circumstantial evidence to lead to the inference that the man has been killed. See Michael Onufrejezyk V. R. [1995] 39 C.A.R. 1. In me case of Ogundipe V. Queen 14 WACA 485, one Apalara, a Moslem preacher was attacked by a group of persons and carried into a house at Tapa Street, Thereafter, he was not seen again. But on investigation human blood was found leading from this house into the Lagoon. The men were convicted of murder, on an appeal, the West African Court of Appeal held mat there was sufficient circum-stantial evidence to show that Apalara died from the injuries inflicted on him. xxxxxxxxxxxxx We thought ourselves that the learned trial judge properly directed himself on the law concerning the corpus delicti, mat direction postulated that there must be sufficient and compelling evidence pointing to the death of the deceased.” In this connection see also State V. Edobor [1975] 9-11 SC 69; Edim V. The State [1972] 4 SC 160. Now, there is no dispute whatever, that the appellant was seen sitting down drinking and talking with a woman, they were seen and indeed directed to a room hired by the appellant by P.W.3 on that fateful day. About one hour later after the appellant and the woman locked themselves into the room, P.W.3 came to collect the rental and money for the drinks earlier ordered by the appellant. In response to a knock on the door, the appellant requested P.W.3 to allow him a little more time. When next P.W.3 went to check on the appellant and the woman, there was no response from the room. When P.W.3 gained entry into the room, he found the woman naked and dead, and the appellant nowhere to be found. There was evidence accepted by the trial judge that no one else had access to the room after PAGE| 8 the appellant and the deceased woman entered and locked themselves in. It was also evident that the woman died of strangulation which could not be self inflicted. The inference that the appellant killed the woman is cogent, compelling and irresistible. But, it is also the law that circumstantial evidence should be used and applied sparingly because of the possibility of fabrication which may cause suspicion on innocent person. See Udedibia V. State [1976] 11 SC 133. Fatoyinbo V. Attorney-General WR [1966] WRNLR 4. In using circumstantial evidence to determine the guilt of a accused person it must be shown by credible evidence that there are a number of circumstances coexisting and which are accepted by credible evidence so as to make a complete and unbroken chain of evidence and these constitute sufficient and cogent proof that the accused committed the offence. See Ukorah V. State [1977] 4 SC 167. The standard of proof required is very high, the evidence required must be reliable and credible and must be consistent with no other rational hypothesis except the guilt of the accused, it must be clear that no other coexisting circumstance arise which would weaken the inference. Omogodo V. State [1981] 5 SC 5. Even though circumstantial evidence is often described as the best evidence, the prosecution must still prove its case beyond reasonable doubt See Nasamu V. State [1979] 6-9 SC 153. In our criminal jurisprudence, if there is any doubt as to the guilt of an accused person, arising from the contradictions in the prosecution evidence it must be resolved in favour of the accused. But the contradictions and inconsistencies must relate to fundamental and issues. See Ankwa V. State [1969] 1 ALL NLR 133. Contradictions in the evidence of witnesses may not be necessarily fatal to a case especially when they are minor and did not materially affect the fundamental and crucial issues. See Queen V. Ekanem [1960] 5; Queen V. Iyanda [1960] 5 FSC 263, Omisade V. Queen [1964] 1 ALL NLR 233. I have myself examined the evidence of the prosecution’s witness in the instant case and I find that the contradictions are minor and did not affect the credibility of the evidence of the witnesses. I also find no merit in die complaint under this head, I accordingly resolve the second issue against the appellant.

See also  Union Beverages Ltd V. M.a. Owolabi (1988) LLJR-SC

ISSUE NO. 3 This issue is concerned with the admission in evidence of the statement made to the police by the appellant and its reliance by the lower courts which was alleged to have prejudiced the appellant. The document was tendered by the prosecution during the cross examination of the appellant and was admitted by the trial judge despite the objections raised by the appellant’s counsel. It is submitted that the document Exhibit A was irrelevant and that the provisions of section 198 [now 199] of the Evidence Act were not satisfied. It is argued that the trial judge was in error to have received the statement in evidence at the stage the document was admitted when it was not admitted to contradict the evidence of the appellant, nor was it tendered as a confessional statement. It was merely tendered by the learned trial judge because “It is not canvassed that this statement was obtained by force, duress, promise of hope made by a person in authority. There is nothing therefore to render the statement which the prisoner has admitted as his from being admitted” It is submitted that the improper use to which the lower courts put on the said exhibit has prejudiced the case of the appellant and thereby led to a miscarriage of justice. PAGE| 9 The learned counsel for the respondent on the other hand submitted that the cardinal principle guiding the admissibility of documents is its relevance. See Kuruma V. R. [1955] AC 192. It is further argued that the appellant himself sought to adopt it as part of his defence and the statement in Exhibit “A” is clearly not inconsistent with his evidence, in court. See Oladejo V. State (supra). It is again added that the admissibility of Exhibit A did not occasion any miscarriage of justice, even if the content of Exhibit A are expunged from the records, there remain sufficient evidence 16 enable the court convict the appellant see State V. Ogbubunjo [2001] 2 NWLR (Pt. 698] 576, (2001) 3 SCM 119. Now in any trial where evidence has been improperly received by the trial court, even when no objection is raised, it is the duty of the appellate court to reject such evidence and decide the case on the available legal evidence. In the case of Queen V. Haske [1961] 1 ALL NLR 330, it was held that an appeal court will, only reverse the decision of the trial court where the conviction of the accused was based on improperly admitted evidence and the appeal court is not certain that the trial court would have come to a different conclusion if the evidence had not been admitted In every case, whether civil or criminal, objection to the admissibility of a document must be made when the document is offered in evidence. Where no objection is raised when offered, the document will be admitted and the opposing party cannot later complain on its admissibility unless the document is by law inadmissible. Where the law declares document inadmissible for non compliance with its provisions the document cannot be admitted in evidence not even by consent of the parties: See Agbeyin V. The State [1967] NMLR 129. Thus there is a distinction between wrongful admission of inadmissible evidence and the wrongful use of otherwise admissible evidence may not necessarily affect the eventual verdict of the trial court. It is also trite, that a person who complains that a piece of evidence was wrongly admitted, must not only prove that it was wrongly admitted but also prove that such wrongful admission has adversely affected the due consideration of his case. So, where it is possible to exclude the wrongfully admitted evidence and yet have enough material to sustain a conviction, the wrongful reception of such evidence would not affect the decision. Applying the above principles, it is my considered view, that even if the statement of the appellant in Exhibit A is excluded, the learned trial judge would have come to the same conclusion that it was the appellant who killed the deceased) In his appraisal and evaluation of the evidence; the teamed trial judge had accepted as the truth the evidence P.W.1, P.W.2 and P.W.3, the learned trial judge held at page 49, of the record of proceedings thus:- “P.W’s 2 and P.W3’s evidence appear unshaken that the accused and the deceased came to Barbara Inn on 5/7/88 by 3.00 p.m. though one after the other, but together hired a chalet and went in there. So that the deceased was last seen alive in company of the accused. There is no evidence that some one else had access to or went into the chalet when the deceased and the accused were mere. When P.W.3 knocked at the door of the chalet the accused offered to pay for the extra time but that P. W 3 should wait Thereafter, the accused never came out to meet P.W. 3 to pay for the chalet or the drinks they took. There is no evidence of how the accused left the Chalet. He was not seen when he left the chalet in other words he sneaked away. When P.W.3 opened the door he saw the deceased naked and dead, xxxxxxxxxxxxxxxxxxxx Circumstantial evidence is after all evidence of surrounding circum-stances which makes the facts in issue more or less probable by reason of their connection or relation to them. xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx PAGE| 10 Despite the accused denial, all evidence point conclusively to the fact that the accused went into the chalet with the deceased who never came out alive again. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Inspite of the very positive and unchallenged evidence of P.W.2 and P.W.3, all die accused said was mere denial which is not supported at all and which I do not believe.” Thus on the substantial evidence forming the circumstances upon which the trial court held that the appellant was the one who killed the deceased, the evidence as contained in Exhibit A did not feature at all. If expunged from the records, mere are sufficient materials upon which to convict the appellant. The Court of Appeal affirmed the finding of the trial judge reproduced above. I accordingly find no merit in the complaint on the third issue. I resolve it against the appellant. In the result, all the three issues are resolved against die appellant this appeal therefore fails and is dismissed by me. I affirm die decisions of die courts below in convicting the appellant for the offence of murder and for sentencing him to death. S.U. ONU, JSC: I have had the privilege to read before now the judgment just delivered by my learned brother, Musdapher, JSC. I am in entire agreement with him mat die appeal is unmeritorious and must therefore fail. A word or two would, in my view, do in expatiation thereof as follows:- The facts of this case have been meticulously set out in the leading judgment to need any repetition. Suffice it to say that in my consideration of the appeal I adopt and express a preference for the Appellant’s three issues as opposed to the Respondent’s two. The Appellant’s three issues complain as follows:- 1. Was die Lower Appellate Court right to have affirmed die finding of the Trial Court to the effect that two of the Prosecution witnesses sufficiently know the accused person before the date of the incident and correctly identified him as the person who brought the deceased woman to the Hotel on the fateful day. (Grounds 1, 2 & 6). 2. In all die circumstances of this case, was die lower Appellate Court right to affirm the conviction of the Appellant for murder when die case of die Prosecution is not free from doubt? (Ground 3 & 4 & 5). &nbs

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SC. 253/2003

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