Oludotun Ogunbayo V The State (2007)

LAWGLOBAL HUB Lead Judgment Report

F. OGBUAGU, J.S.C

This is an appeal from the decision of the Court of Appeal, lbadan Division, (thereinafter called “the court below”), delivered on 2nd May, 2002 affirming the conviction and sentence of the appellant to seven (7) years imprisonment with hard labour with an option of fine of N5,000.00 (five thousand Naira) by the trial court on 3rd December, 1991 in respect of the rape charge against the appellant.

Dissatisfied with the said decision, the appellant has appealed to this court on four grounds of appeal which without their particulars, read as follows:

“(a) GROUND ONE

The learned trial Judge and the lower court erred in law when they held that there is corroboration of evidence of PW 1 by that of PW5 (the Medical Doctor) consequent upon which it convicted and sentenced the Appellant for committing the offence of rape and thereby occasioned miscarriage justice.

(b) GROUND TWO

The Honourable Court was in error when it affirmed the judgment of the lower court despite contradiction in the case of the prosecution thereby occasioned miscarriage justice.

(c) GROUND THREE

The Court of Appeal was in error when it affirmed the trial court judgment that the prosecution had proved the case of rape against the appellant with the offence before the court thereby occasioned miscarriage of Justice “.

I will with respect, fault ground one of the appeal as it is incompetent. This is because this court does not deal with an appeal against the decision of a trial court, but with that against the decision of the Court of Appeal. This is so by virtue of the provisions of section 233(1) of the Constitution of the Federal Republic of Nigeria,1999 which provides as follows:

“The Supreme Court shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Court of Appeal”.

As can be seen, the provision which is clear and unambiguous is mandatory. In other words, it is the finding/findings of the Court of Appeal, and not that of a trial court, that is appeal able to this Court. See the cases of Guobadia v. The State (2004) 2 SCNJ 55 @ 63; (2006) 6 NWLR (Pt.869) 360; Harriman v. Chief Harriman (1987) 3 NWLR (Pt.60) 244 @ 257; (1987) 6 SCNJ 218; and (2004) 2 S.C. (Pt. II) 1; Ogoyi v. Umagba & anor. (1995) 9 NWLR (Pt.419) 283; (1995) 10 SCNJ. 55; and Ibori v. Agbi (2004) 6 NWLR (Pt. 868) 78 @ 143-144; and (2004) 2 SCNJ 1 @ 52. Even from paragraphs 5.1.20 and 5.1.26 of the appellant’s brief, the learned counsel for the appellant – Okpeseyi, Esq., was still referring to the learned trial Judge.

Paragraph 5.1.20, reads as follows;

“We submit with respect to the trial Judge and the learned Justices of the Court of Appeal, 5th PW did not blame the appellant for the laceration of the hymen of 1st PW1 (sic) nor did he say that seminal fluid was found in her vagina. In fact what the medical doctor 5th PW said is completed at variance with the strange conclusion of the trial .Judge”. In paragraph 5.1.26,.the learned counsel still submitted, ”