Segun V. State (2021)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO, J.S.C.
On 16th May, 2018 the Court of Appeal, Ado-Ekiti Division (the lower Court) delivered judgment in the appeal of the Appellant in which the said lower Court affirmed the conviction of the Appellant, and death sentence imposed on him, for murder. The opinion of the lower Court prepared and delivered by AHMAD O. BELGORE, Presiding Justice, was unanimously concurred by FATIMA OMORO AKINBAMBI and PAUL OBI ELECHI, JJCA. This further appeal is against the said decision.
The uniqueness of the judgment appealed warrants my having to set it out, clearly, in its three active components. Firstly, at pages 204 – 207 of the Record, the Notice of Appeal against the decision of the trial Court containing 4 grounds of appeal, was set out verbatim thus:
It is against the decision of the High Court, that the appellant has appealed to this Court. Pursuant to the leave of this Court granted on the 16th day of October, 2017, on Amended Notice of Appeal contained four Grounds of Appeal was filed on the 26th day of October, 2017. The four grounds of appeal are –
GROUND 1 (ONE) ERROR IN LAW
The learned trial Judge erred in law when he relied on the evidence of Prosecution witnesses who are not eye witnesses to the commission of crime in convicting the Appellant of the offence of Murder.
PARTICULARS OF ERROR
- The only eye witness was PW3 whose evidence was not corroborated by any other person.
- The evidence of PW3 before the Court shows that PW3 is a tainted witness having alleged that she was almost killed by the Appellant who in any event did not assault, bear or done any harm to PW3.
- There was no legally admissible evidence on which the Court could hinge the guilt of the accused person for which reason the Court did not consider the evidence before the Court but decided the guilt of the accused person hearsay evidence.
GROUND 2 (TWO)
The learned trial Judge erred in law when he convicted the Appellant of Murder despite the failure of the Prosecution in discharging the burden of proof beyond reasonable doubt as the evidence adduced is insufficient to ground or sustain the ingredient of a Murder charge.
PARTICULARS OF ERROR
- It is evidence that the alleged crime for which the Appellant was convicted was not witnessed by any of the Prosecution witnesses, yet the Court convicted the Appellant on the evidence of PW3 without corroboration.
- The Court held that failure of the Appellant’s witnesses to volunteer any statement to the Police discharges the Prosecution of Mandatory burden of proof beyond reasonable doubt in a criminal trial.
- The evidence adduced by the Prosecution against the Appellant which the Court believed and based its decision no conclusion based on law.
GROUND 3 (THREE) ERROR IN LAW
The entire trial as it relates to the Appellant is a nullity, the trial having been conducted against the Appellant’s right to fair hearing.
PARTICULARS OF ERROR
- The law is that the Court is bound to consider any defence offered by any accused person in a criminal trial, this the Court failed to do in this case.
- The Court held that failure of the Appellant’s witnesses to volunteer any statement to the Police make their evidence not reliable and therefore liable to rejection in clear breach of law and judicial authorities that an accused person cannot be condemned unheard.
The second phase of the judgment of the lower Court has therein set out and reproduced the respective issues distilled from the 4 grounds of appeal at pages 207 – 208. That is –
ISSUE No. 1
Whether the Court was right in convicting the Appellant of Murder in the absence of any legally admissible evidence. This issue covers ground 1 (one) of the grounds of Appeal.
ISSUE No. 2
Whether the Prosecution discharged mandatory burden of proof imposed on it by law so as to justify the conviction of the Appellant for murder. This issue covers ground 2 (two) of the grounds of appeal.
ISSUE No. 3
Whether the trial and conviction of the Appellant is not a nullity, the Court having not considered the defence offered by the Appellant and evidence adduced by his witness. The issue cover ground 3 (three) of the grounds of appeal.
The Respondent distilled a sole issue for determination, viz –
Whether the Appellant was not properly convicted of the offence as charged by virtue of the evidence adduced and admitted at his trial before the lower Court? [ground 1]
Then comes the consideration and the brisk, albeit brief and foggy decision on the issues, as follows at pages 208 and 209. That is- Issue No. 1
The lower Court (sic – was) right in convicting the Appellant of murder, based on legally admissible evidence.
Issue No. 2
The prosecution discharged the mandatory burden of proof imposed on it by law and the conviction of the Appellant for murder is justified.
Issue No. 3
The learned trial Judge considered the evidence of the Appellant and his witness. He appraised same and came to right decision. I do not see any reason whatsoever to annul the trial and the convicting (sic) of the Appellant.
All the three issues formulated by the Appellant having been resolved against him, this appeal must fail and it is accordingly hereby dismissed. The decision of the lower Court in charge No. HOM/1C/2013 delivered on the 21st day of June, 2016 convicting and sentence the Appellant is hereby affirmed.
It is this brisk and brief judgment (in a style most unusual of a superior Court) that the complaints of the Appellant, in this further appeal, are directed. The Notice of Appeal has 4 grounds of appeal. In the Appellant’s Brief, Mr. Tunde Adeoye of the Appellant’s Counsel formulated three issues from grounds 1 – 3, abandoning ground 4 – the omnibus ground. I hereby adopt the 3 issues formulated by the Appellant’s Counsel. They read:
- Whether the Court of Appeal was right in affirming the conviction of the Appellant for murder by the trial Court in the absence of any legally admissible evidence? This issue covers ground 1 (one) of the grounds of appeal.
- Whether the Prosecution discharged (the) mandatory burden of proof imposed on it by law so as to justify the conviction of Appellant for murder? This issue covers ground 2 (two) of the grounds of appeal.
- Whether the trial and conviction of the Appellant is not a nullity, the Court having not considered the defence offered by the Appellant and the evidence by his witness? This covers ground 3 (three) of the grounds of appeal.
Ground 3 of the grounds of appeal, from whence issue 3 was allegedly distilled, does not have particulars of “any defence offered by” the Appellant at the trial which “the trial Court failed to do (consider) and the learned Justices of the Court of Appeal held that the right of the Appellant was not breached by the trial (Court)”. The Appellant’s counsel does not appear learned enough in this type of “jedi-jedi” advocacy. In the Appellant’s Ground 3, in the Amended Notice of Appeal at the lower Court, Mr. Tunde Adeoye of the appellant’s counsel made the bald statement of complaint that “the entire trial as it relates to the Appellant is a nullity, the trial having been conducted against right to fair hearing”. The said Ground 3 was without particulars, albeit insufficient, that would have put the Respondent on the notice of this alleged infraction of the Appellant’s right to fair trial by the trial Court.
The notice of the case a party is going to meet for him to plan adequately how to answer or defend it is the very essence of audi alteram partem principle in fair hearing or natural justice. As the prosecution has no right to deny the defence audi alteram partem so also the latter the former. Denial of a party of his right to audi alteram partem is, no doubt, an infringement of the other’s right to fair trial or hearing guaranteed by Section 36 of the 1999 Constitution, as amended. The Courts of law and justice frown at a party in litigation laying ambush on his adversary. It is jurisprudentially unwholesome.
On this note, I am of the firm view that the ground of appeal, from which issue 3 has been formulated for the determination of this appeal is, like the said issue 3, incompetent. Both the ground 3 and issue 3, shall be, and are hereby, struck out. No where in the judgments of the trial Court and the lower Court did this bogus issue of alibi and the defence evidence on it arise. In any case, the credible evidence of PW.1, PW.2, PW.3, PW.4 and PW.5 – eye witnesses, believed by the trial Court would not let any alibi being flaunted by the Appellant fly. The issue is a non-starter.
The remaining two issues come down to whether the guilt of the Appellant was established beyond reasonable doubt at the trial Court to warrant the lower Court affirming it. Clearly, the further appeal is against the concurrent findings of fact. The Appellant, in the circumstance, is enjoined to show that the concurrent decisions were perverse or unreasonable. The Apex Court will not, as a principle, lightly interfere with concurrent findings of fact: OMETA v. NUMA (1934) 11 NLR 18. In otherwords, in the absence of special reasons the Apex Court will not review concurrent findings of fact or the facts at the trial the third time:-ASSACHERE v. DADIASE (1945) 11 WACA 1. It is on this principle that a derivative principle evolved to the effect: that concurrent findings for facts of the Courts below prima facie entitle the respondent to an order dismissing the appeal against findings of fact: ADANSI v. BRENASE P. C. No. 23 of 1953; (1956) 1 W. A. L. R 6 (Ghana). Putting it rather bluntly: except where there are special circumstances, the Apex Court will not permit a question of fact to be re-opened where there had been concurrent findings of fact on it: DAWODU v. DANMOLE (1962) 1 ALL NLR 702.
This, instant appeal, however, is an appeal challenging the conviction of the Appellant for murder that the lower Court had affirmed. Section 233(2)(d) of the Constitution, as amended, offers constitutional exception to this general principle when it confers on the appellant the right to appeal as of right to this Court, the Apex Court, to challenge his conviction for capital offence and/or death sentence. I shall, therefore, do evaluation of some of the salient or material facts.
The summary of the five material witnesses called by the respondent is that the Appellant, as the 1st Accused, was fixed physically to both the scene, the locus criminis, and the alleged murder.
The PW.1, a Police Inspector, who was at the scene at the material time, testified, undiscredited, that the Appellant and the co-accused were among the lynch mob that invaded the Police Station to lynch the PW.4 and the two Fulani men.
The three had been rescued and put into the Police cell in a protective custody. The mob led by the Appellant and the co-accused, over powering the police personnel, broke into the cell. The PW.2, another Police officer, was categorical and undiscredited. He testified that the Appellant was at the scene of the mob attack at all material times.
The PW.5, the investigating Police officer, recorded the Appellant’s extra-judicial statement, Exhibit 3.02. It was a confessional statement admitted in evidence inspite of objection. The Ruling dismissing the objection, not appealed, remains unchallenged, extant, subsisting and binding on the Appellant, just as the confession Exhibit 3.02.
The PW.3, the mother of PW.4, rushed to the police station on hearing that the PW.4 was being attacked by the mob at the Police station. She saw the Appellant lead the lynch mob.
The PW.3 was categorical that the Appellant,
The 1st Accused hit the man with the white and black T-Shirt with the axe … The man with the White and Black T-Shirt was beaten to death by the 1st Accused and others.
She was not discredited under cross-examination nor by any other piece of evidence. The trial Court believed her, and the lower Court affirmed the finding of fact. The concurrent findings are not perverse or unreasonable. They are premised on credible legal evidence.
The PW.4 was conveying the two Fulani men (including the one wearing “white and black T. Shirt). The three were waylaid and thoroughly beaten. They were rescued and taken to the police station. He saw the 2nd Accused lead the lynch mob into the police station. The mob later brought out the two Fulani men from the cell. He saw the 2nd Accused personally smash the head of one of two Fulani men in the most, horribly, gory manner. The man died. The Appellant and the said 2nd Accused remained active in the criminal partnership throughout. The Appellant, in this further appeal, does not contest the fact that the two Fulani men were brutally killed. The fact of their death through some unlawful or illegal mob action is not in dispute.
The cumulative of the totality of the evidence of the PW.1, PW.2, PW.3, PW.4 and PW.5, together with the Appellant’s confessional statement, Exhibit 3.02, constitute the corpus of the legal evidence believed by the trial Court in the conviction of the Appellant for the gruesome murder of the two Fulani men alleged. The Appellant admitted to the PW.5 that he was at the scene of crime – that admission actively should discredit any unfounded alibi. The totality of the evidence established that the Appellant had the opportunity of committing the alleged crime, and he did actually commit it: UBANI v. THE STATE (2004) FWLR (Pt.191) 1533 at 1546.
I agree with the learned Attorney-General of Ekiti State, Mr. Fapohunda, that the proof of the guilt of an accused person can be sustained on the following evidence, jointly and/or severally, that is –
i. the confession of the accused;
ii. circumstantial evidence; and/or
iii. evidence of eye witnesses of the crime;
LORI v. THE STATE (1980) 8 – 11 SC 81 MAIGARI v. THE STATE (2010) FWLR (Pt. 546) 505.
I find neither perversity nor unreasonableness in the concurrent findings of fact this appeal is directed against. The Appellant has also not been able to show any miscarriage of justice occasioned by the concurrent findings of fact. His conviction for Murder affirmed by the lower Court in the unusually very foggy brisk, brief and scanty judgment is hereby further affirmed.
The appeal, lacking in substance, is hereby dismissed in its entirety.
Appeal dismissed.
SC.1138C/2018