Emmanuel Tometim V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment)

The Appellant herein, was arraigned before the Ekiti State High Court sitting at Ado-Ekiti on a two counts charge of rape and murder on the 7th day of March, 2011, under Sections 358 and 316 of the Criminal Law Vol. II Laws of Ondo State, 1978 as applicable to Ekiti State respectively. These offences were alleged to have been committed on or about the 17th of August 2006 at Oke-Sele Farm, Igirigiri, Ado-Ekiti in Ekiti State.

When the charge was read and explained to the Appellant, he pleaded not guilty to the two counts.

In order to establish its case, the Respondent herein called three witnesses while the Appellant gave evidence in his defence and called no further evidence. Thereafter, learned Counsel on both sides addressed the Court. In a reserved and considered judgment which was delivered on the 14th January, 2013, Akintayo, J., found the Appellant guilty on both counts and sentenced him to life imprisonment on count one, and death by hanging on the 2nd count.

It is against that decision that the Appellant has brought this appeal. His notice of appeal dated 12th day of April, 2013 and filed the same day contains six grounds of appeal. This notice of appeal is at pages 59-65 of the printed record of this appeal.

Parties filed and exchanged briefs of argument. At page 5 of the Appellant’s brief of argument dated and filed on the 18th November, 2013, four issues were formulated for determination of this appeal. I reproduce hereunder those issues as follows: –

i. Whether the learned trial Judge was not wrong when His Lordship held that the prosecution has proved its case beyond reasonable doubt and afortiori convicted and sentenced the Appellant, having regard to the oral and documentary evidence placed before the trial court.

ii. Whether the learned trial Judge was right when His Lordship accorded full evidential value to Exhibits C, F and G1 – G3 and held that the appellant was the one in Exhibit G1 – G3 and that Exhibit C is a confessional statement voluntarily made by the Appellant.

iii. Whether the learned trial Judge was not correct when His Lordship held that it is not compulsory to tender a Medical Report, having regard to the circumstances surrounding the demise of the deceased.

iv. Whether the learned trial Judge was not wrong when His Lordship held that the defence of alibi cannot avail the Appellant in this case when the necessary materials were available to investigate the alibi and the Police failed to do so.

Issues 1, 2, 3 and 4 were said to have been formulated from grounds 5, 2 and 3, 1 and 4 respectively. No issue is formulated from ground six, it is therefore deemed abandoned.

For the Respondent, four issues were formulated at page 3 of the Respondent’s brief of argument dated and filed on the 5th of February, 2014, but deemed filed and served on the 6th of February, 2014. They read as follows:-

1. Whether the learned trial Judge was not right in holding that in the circumstances of this case, the tendering of a medical report of the cause of death of the deceased was unnecessary.
2. Whether the learned trial Judge was not right in admitting and relying on the Appellant’s confessional statement ‘Exhibit C’ and ‘Exhibit F’, ‘G – G3’ to ground his conviction.
3. Whether the learned trial Judge was not right in holding that the defence of Alibi raised by the Appellant on trial could not avail him.
4. Whether the trial Judge was not right in holding that the Respondent proved the charges of rape and murder of the deceased beyond reasonable doubt against the Appellant.

Issue one is distilled from ground 1, issue 2 from grounds 2 and 3, issue 3 from ground 4 while issue 4 is distilled from ground 5 and 6th ground which has been abandoned.

The issues formulated by both parties are similar, in that they all deal with evaluation of evidence and ascription of probative value to such evidence.