Patrick Oforlete V The State-2000

LAWGLOBAL HUB Lead Judgment Report

KALGO, J.S.C

The appellant, Patrick Oforlete, was charged with the offence of murder contrary to section 319( 1) of the Criminal Code (cap. 30 of Laws of former Eastern Nigeria applicable to Imo State). The case of the prosecution was that on the 7th day of December, 1988, at Duruaku Ebeke lsu-Njaba in the Orlu Judicial Division of Imo State, the appellant caused the death of one Agim Ohayagba by hitting him KALGO, J.S.C. (Delivering the Leading Judgment) on the head with a kitchen stool.

At the trial, which commenced at the Orlu High Court before Onunuju J., the appellant pleaded not guilty to the charge after it was read and explained to him. Thereafter both the prosecution and the defence called witnesses in support of their respective cases and later addressed the trial court before the case was adjourned for judgment.

On the 29th of January, 1993, the learned trial Judge, Onunuju J. delivered his judgment in which he found the appellant not guilty of murder but guilty of manslaughter and sentenced him to a term of five years imprisonment. The appellant was dissatisfied with this and he appealed to the Court of Appeal against conviction and sentence. The Court of Appeal heard the appeal, dismissed it as being without merit and affirmed the decision of the trial court.

The appellant was still not satisfied and he appealed to this court against conviction and sentence on four grounds.

In this court, briefs of argument were filed and exchanged by learned counsel on behalf of the parties. In the appellant’s brief four issues were formulated for the determination of this court in the appeal. They are:-

“(i) Whether trial of the appellant which led to his conviction and sentence was valid in law.

(ii) Whether it is correct as found by the two courts below, that the evidence of P.W.1 was not challenged at all.

(iii) Whether the appellant was rightly convicted and sentenced on the medical evidence.

(iv) Whether, the appellant’s defence was adequately considered”.

The respondent adopted all the issues raised by the appellant in his brief. On issue (i) the learned counsel for the appellant in his brief raised the question of regularity or otherwise of the plea of the appellant taken after the charge was amended. He submitted that there was non-compliance with the mandatory provision of section 215 of the Criminal Procedure Law of Imo State and so the whole trial was a nullity. This is no doubt a fresh point which was neither contested in the trial court nor taken up on appeal in the Court of Appeal. It is common ground that an appeal court will not ordinarily entertain issues that are fresh and not brought and decided before a lower court. See Niger Progress Ltd v. North East Line Corporation (1989) 3 NWLR (Pt.107) 68 at 100. And in this court no such fresh issue or point shall be entertained without the leave of the court having been had and obtained. See Udza Uor v. Paul Loko (1988) 2 NWLR (Pt.77) 430, and Order 6 rule 5(1) of the Rules of the Supreme Court 1985 as amended.

The attitude of this court on raising fresh points on appeal has been clearly expressed in the case of Akpene v. Barclays Bank of Nigeria (1977) 1 SC 47; Abinabina v. Enyimadu (1953) 12WACA 171; Djukpan v. Orovuyovbe (1967) 1 All NLR 134at 137-138; Oniah v. Onyia (1989) 1NWLR (Pt.99) 514; Makanjuola v. Balogun (1989) 3 NWLR (Pt.l08) 192.

The appellant did not obtain any leave to raise this issue in this court and no such leave was granted to him to do so. This issue cannot therefore be considered in this appeal. It is accordingly disregarded.

Issue (ii) concerns the evidence of P.W.1, who was the wife of the deceased and who was the only eye witness to the incident. In examination-in-chief at the trial, her evidence which was very short, reads:-