ALIYU SALIHU V ALHAJI ABDUL WASIU
April 26, 2025SANI MUSTAPHA BABURA V SAIDU MOHAMMED
April 26, 2025Legalpedia Citation: (2016) Legalpedia (SC) 61152
In the Supreme Court of Nigeria
HOLDEN AT ABUJA
Thu Jan 28, 2016
Suit Number: SC. 706/2013
CORAM
JOHN IN YANG OKORO JUSTICE. SUPREME COURT
PARTIES
ANTHONY ITU
APPELLANTS
THE STATE
RESPONDENTS
AREA(S) OF LAW
APPEAL, ACTION, COURT, CRIMINAL LAW AND PROCEDURE, WORDS AND PHRASES, PRACTICE AND PROCEDURE,
SUMMARY OF FACTS
This is an appeal against the judgment of the Court of Appeal, Benin Division (the lower Court) delivered on 7/11/2013 in which it affirmed the decision of Oritsejafor, J of Delta State High Court (the trial Court) which on 13 February 2012 convicted the present appellant of murder, contrary to Section 319(1) of Criminal Code, Cap 48, Vol.11 of Laws of Bendel State, 1976 (then applicable to Delta State), and accordingly sentenced him to death by hanging. On 9 January 2008, the Appellant shot and killed one Godswill Itu, who was his nephew. Upon being arraigned before the trial Court, the Appellant pleaded not guilty to the charge of murder, framed against him by the Prosecution. Trial thereupon commenced and the prosecution, now respondent, called six witnesses to prove its case and tendered four exhibits namely Exhibits A and B which were confessional statements made by the accused/appellant to the police after his arrest, while Exhibits C and D are one single barrel gun and cartridge respectively, allegedly recovered from the appellant at the scene of the crime. At the end of the prosecution’s case, the appellant entered his defense by giving evidence and later he called one witness to testify for his defense. In the course of the trial, when the prosecution sought to tender the confessional statements, the accused objected on the ground that it was not voluntarily made by him. Sequel to that, the trial Court conducted a trial-within-trial. After conducting the trial within trial, the learned trial judge admitted the two statements as Exhibits A and B, without delivering a ruling evaluating the evidence on the admissibility or otherwise of the confessional statements led at trial-within-trial. He instead decided to do the evaluation when delivering his final judgment in the case. The Appellant challenged that procedure on appeal at the lower court when he complained that ‘miscarriage of justice’ was occasioned on him but the appeal at the lower court was unsuccessful.
Although, the procedure adopted by the trial court led to division of opinion learned Justices at the lower court, wherein, one of the justices Lokulo-Sodipe JCA faulted it and departed with the majority justices regarding the admissibility of Exhibits A and B. Aggrieved with the judgment of the trial court, the Appellant appealed to the court below. On 7/11/2013, the lower court delivered its considered judgment dismissing the Appellant’s appeal and affirming the judgment of the trial court. The Appellant being dissatisfied with the judgment of the lower court, further appealed to this Court.This is an appeal against the judgment of the Court of Appeal, Benin Division (the lower Court) delivered on 7/11/2013 in which it affirmed the decision of Oritsejafor, J of Delta State High Court (the trial Court) which on 13 February 2012 convicted the present appellant of murder, contrary to Section 319(1) of Criminal Code, Cap 48, Vol.11 of Laws of Bendel State, 1976 (then applicable to Delta State), and accordingly sentenced him to death by hanging.
On 9 January 2008, the Appellant shot and killed one Godswill Itu, who was his nephew. Upon being arraigned before the trial Court, the Appellant pleaded not guilty to the charge of murder, framed against him by the Prosecution. Trial thereupon commenced and the prosecution, now respondent, called six witnesses to prove its case and tendered four exhibits namely Exhibits A and B which were confessional statements made by the accused/appellant to the police after his arrest, while Exhibits C and D are one single barrel gun and cartridge respectively, allegedly recovered from the appellant at the scene of the crime. At the end of the prosecution’s case, the appellant entered his defense by giving evidence and later he called one witness to testify for his defense. In the course of the trial, when the prosecution sought to tender the confessional statements, the accused objected on the ground that it was not voluntarily made by him. Sequel to that, the trial Court conducted a trial-within-trial. After conducting the trial within trial, the learned trial judge admitted the two statements as Exhibits A and B, without delivering a ruling evaluating the evidence on the admissibility or otherwise of the confessional statements led at trial-within-trial. He instead decided to do the evaluation when delivering his final judgment in the case. The Appellant challenged that procedure on appeal at the lower court when he complained that ‘miscarriage of justice’ was occasioned on him but the appeal at the lower court was unsuccessful. Although, the procedure adopted by the trial court led to division of opinion learned Justices at the lower court, wherein, one of the justices Lokulo-Sodipe JCA faulted it and departed with the majority justices regarding the admissibility of Exhibits A and B. Aggrieved with the judgment of the trial court, the Appellant appealed to the court below. On 7/11/2013, the lower court delivered its considered judgment dismissing the Appellant’s appeal and affirming the judgment of the trial court. The Appellant being dissatisfied with the judgment of the lower court, further appealed to this Court.This is an appeal against the judgment of the Court of Appeal, Benin Division (the lower Court) delivered on 7/11/2013 in which it affirmed the decision of Oritsejafor, J of Delta State High Court (the trial Court) which on 13 February 2012 convicted the present appellant of murder, contrary to Section 319(1) of Criminal Code, Cap 48, Vol.11 of Laws of Bendel State, 1976 (then applicable to Delta State), and accordingly sentenced him to death by hanging. On 9 January 2008, the Appellant shot and killed one Godswill Itu, who was his nephew. Upon being arraigned before the trial Court, the Appellant pleaded not guilty to the charge of murder, framed against him by the Prosecution. Trial thereupon commenced and the prosecution, now respondent, called six witnesses to prove its case and tendered four exhibits namely Exhibits A and B which were confessional statements made by the accused/appellant to the police after his arrest, while Exhibits C and D are one single barrel gun and cartridge respectively, allegedly recovered from the appellant at the scene of the crime. At the end of the prosecution’s case, the appellant entered his defense by giving evidence and later he called one witness to testify for his defense. In the course of the trial, when the prosecution sought to tender the confessional statements, the accused objected on the ground that it was not voluntarily made by him. Sequel to that, the trial Court conducted a trial-within-trial. After conducting the trial within trial, the learned trial judge admitted the two statements as Exhibits A and B, without delivering a ruling evaluating the evidence on the admissibility or otherwise of the confessional statements led at trial-within-trial. He instead decided to do the evaluation when delivering his final judgment in the case. The Appellant challenged that procedure on appeal at the lower court when he complained that ‘miscarriage of justice’ was occasioned on him but the appeal at the lower court was unsuccessful. Although, the procedure adopted by the trial court led to division of opinion learned Justices at the lower court, wherein, one of the justices Lokulo-Sodipe JCA faulted it and departed with the majority justices regarding the admissibility of Exhibits A and B. Aggrieved with the judgment of the trial court, the Appellant appealed to the court below. On 7/11/2013, the lower court delivered its considered judgment dismissing the Appellant’s appeal and affirming the judgment of the trial court. The Appellant being dissatisfied with the judgment of the lower court, further appealed to this Court.This is an appeal against the judgment of the Court of Appeal, Benin Division (the lower Court) delivered on 7/11/2013 in which it affirmed the decision of Oritsejafor, J of Delta State High Court (the trial Court) which on 13 February 2012 convicted the present appellant of murder, contrary to Section 319(1) of Criminal Code, Cap 48, Vol.11 of Laws of Bendel State, 1976 (then applicable to Delta State), and accordingly sentenced him to death by hanging. On 9 January 2008, the Appellant shot and killed one Godswill Itu, who was his nephew. Upon being arraigned before the trial Court, the Appellant pleaded not guilty to the charge of murder, framed against him by the Prosecution. Trial thereupon commenced and the prosecution, now respondent, called six witnesses to prove its case and tendered four exhibits namely Exhibits A and B which were confessional statements made by the accused/appellant to the police after his arrest, while Exhibits C and D are one single barrel gun and cartridge respectively, allegedly recovered from the appellant at the scene of the crime. At the end of the prosecution’s case, the appellant entered his defense by giving evidence and later he called one witness to testify for his defense. In the course of the trial, when the prosecution sought to tender the confessional statements, the accused objected on the ground that it was not voluntarily made by him. Sequel to that, the trial Court conducted a trial-within-trial. After conducting the trial within trial, the learned trial judge admitted the two statements as Exhibits A and B, without delivering a ruling evaluating the evidence on the admissibility or otherwise of the confessional statements led at trial-within-trial. He instead decided to do the evaluation when delivering his final judgment in the case. The Appellant challenged that procedure on appeal at the lower court when he complained that ‘miscarriage of justice’ was occasioned on him but the appeal at the lower court was unsuccessful. Although, the procedure adopted by the trial court led to division of opinion learned Justices at the lower court, wherein, one of the justices Lokulo-Sodipe JCA faulted it and departed with the majority justices regarding the admissibility of Exhibits A and B. Aggrieved with the judgment of the trial court, the Appellant appealed to the court below. On 7/11/2013, the lower court delivered its considered judgment dismissing the Appellant’s appeal and affirming the judgment of the trial court. The Appellant being dissatisfied with the judgment of the lower court, further appealed to this Court.This is an appeal against the judgment of the Court of Appeal, Benin Division (the lower Court) delivered on 7/11/2013 in which it affirmed the decision of Oritsejafor, J of Delta State High Court (the trial Court) which on 13 February 2012 convicted the present appellant of murder, contrary to Section 319(1) of Criminal Code, Cap 48, Vol.11 of Laws of Bendel State, 1976 (then applicable to Delta State), and accordingly sentenced him to death by hanging. On 9 January 2008, the Appellant shot and killed one Godswill Itu, who was his nephew. Upon being arraigned before the trial Court, the Appellant pleaded not guilty to the charge of murder, framed against him by the Prosecution. Trial thereupon commenced and the prosecution, now respondent, called six witnesses to prove its case and tendered four exhibits namely Exhibits A and B which were confessional statements made by the accused/appellant to the police after his arrest, while Exhibits C and D are one single barrel gun and cartridge respectively, allegedly recovered from the appellant at the scene of the crime. At the end of the prosecution’s case, the appellant entered his defense by giving evidence and later he called one witness to testify for his defense. In the course of the trial, when the prosecution sought to tender the confessional statements, the accused objected on the ground that it was not voluntarily made by him. Sequel to that, the trial Court conducted a trial-within-trial. After conducting the trial within trial, the learned trial judge admitted the two statements as Exhibits A and B, without delivering a ruling evaluating the evidence on the admissibility or otherwise of the confessional statements led at trial-within-trial. He instead decided to do the evaluation when delivering his final judgment in the case. The Appellant challenged that procedure on appeal at the lower court when he complained that ‘miscarriage of justice’ was occasioned on him but the appeal at the lower court was unsuccessful. Although, the procedure adopted by the trial court led to division of opinion learned Justices at the lower court, wherein, one of the justices Lokulo-Sodipe JCA faulted it and departed with the majority justices regarding the admissibility of Exhibits A and B. Aggrieved with the judgment of the trial court, the Appellant appealed to the court below. On 7/11/2013, the lower court delivered its considered judgment dismissing the Appellant’s appeal and affirming the judgment of the trial court. The Appellant being dissatisfied with the judgment of the lower court, further appealed to this Court.This is an appeal against the judgment of the Court of Appeal, Benin Division (the lower Court) delivered on 7/11/2013 in which it affirmed the decision of Oritsejafor, J of Delta State High Court (the trial Court) which on 13 February 2012 convicted the present appellant of murder, contrary to Section 319(1) of Criminal Code, Cap 48, Vol.11 of Laws of Bendel State, 1976 (then applicable to Delta State), and accordingly sentenced him to death by hanging. On 9 January 2008, the Appellant shot and killed one Godswill Itu, who was his nephew. Upon being arraigned before the trial Court, the Appellant pleaded not guilty to the charge of murder, framed against him by the Prosecution. Trial thereupon commenced and the prosecution, now respondent, called six witnesses to prove its case and tendered four exhibits namely Exhibits A and B which were confessional statements made by the accused/appellant to the police after his arrest, while Exhibits C and D are one single barrel gun and cartridge respectively, allegedly recovered from the appellant at the scene of the crime. At the end of the prosecution’s case, the appellant entered his defense by giving evidence and later he called one witness to testify for his defense. In the course of the trial, when the prosecution sought to tender the confessional statements, the accused objected on the ground that it was not voluntarily made by him. Sequel to that, the trial Court conducted a trial-within-trial. After conducting the trial within trial, the learned trial judge admitted the two statements as Exhibits A and B, without delivering a ruling evaluating the evidence on the admissibility or otherwise of the confessional statements led at trial-within-trial. He instead decided to do the evaluation when delivering his final judgment in the case. The Appellant challenged that procedure on appeal at the lower court when he complained that ‘miscarriage of justice’ was occasioned on him but the appeal at the lower court was unsuccessful. Although, the procedure adopted by the trial court led to division of opinion learned Justices at the lower court, wherein, one of the justices Lokulo-Sodipe JCA faulted it and departed with the majority justices regarding the admissibility of Exhibits A and B. Aggrieved with the judgment of the trial court, the Appellant appealed to the court below. On 7/11/2013, the lower court delivered its considered judgment dismissing the Appellant’s appeal and affirming the judgment of the trial court. The Appellant being dissatisfied with the judgment of the lower court, further appealed to this Court.This is an appeal against the judgment of the Court of Appeal, Benin Division (the lower Court) delivered on 7/11/2013 in which it affirmed the decision of Oritsejafor, J of Delta State High Court (the trial Court) which on 13 February 2012 convicted the present appellant of murder, contrary to Section 319(1) of Criminal Code, Cap 48, Vol.11 of Laws of Bendel State, 1976 (then applicable to Delta State), and accordingly sentenced him to death by hanging. On 9 January 2008, the Appellant shot and killed one Godswill Itu, who was his nephew. Upon being arraigned before the trial Court, the Appellant pleaded not guilty to the charge of murder, framed against him by the Prosecution. Trial thereupon commenced and the prosecution, now respondent, called six witnesses to prove its case and tendered four exhibits namely Exhibits A and B which were confessional statements made by the accused/appellant to the police after his arrest, while Exhibits C and D are one single barrel gun and cartridge respectively, allegedly recovered from the appellant at the scene of the crime. At the end of the prosecution’s case, the appellant entered his defense by giving evidence and later he called one witness to testify for his defense. In the course of the trial, when the prosecution sought to tender the confessional statements, the accused objected on the ground that it was not voluntarily made by him. Sequel to that, the trial Court conducted a trial-within-trial. After conducting the trial within trial, the learned trial judge admitted the two statements as Exhibits A and B, without delivering a ruling evaluating the evidence on the admissibility or otherwise of the confessional statements led at trial-within-trial. He instead decided to do the evaluation when delivering his final judgment in the case. The Appellant challenged that procedure on appeal at the lower court when he complained that ‘miscarriage of justice’ was occasioned on him but the appeal at the lower court was unsuccessful. Although, the procedure adopted by the trial court led to division of opinion learned Justices at the lower court, wherein, one of the justices Lokulo-Sodipe JCA faulted it and departed with the majority justices regarding the admissibility of Exhibits A and B. Aggrieved with the judgment of the trial court, the Appellant appealed to the court below. On 7/11/2013, the lower court delivered its considered judgment dismissing the Appellant’s appeal and affirming the judgment of the trial court. The Appellant being dissatisfied with the judgment of the lower court, further appealed to this Court.
HELD
Appeal dismissed
ISSUES
1. Whether the lower court was right in holding that the learned trial judge properly conducted trials within trial before he admitted and relied on exhibits A and B in his judgment against the appellant?
2. Whether having regard to the circumstances of this case and the totality of the evidence on record, the lower court was right when it affirmed the decision of the learned trial judge who convicted the appellant for murder?
RATIONES DECIDENDI
ON MEANING OF “MISCARRIAGE OF JUSTICE”
“Having read these cases cited above which defined the phrase “miscarriage of justice” I hold the view that the cumulative meaning of the phrase that could be gathered from the decided authorities cited supra, is that the Phrase ‘miscarriage of justice simply means justice miscarried. Miscarriage of justice in short means failure on the part of the court to do justice. It is justice misapplied, misappreciated or misappropriated. It was also an ill conduct on the part of the court, which amounts to injustice. Miscarriage of justice arises in a decision or outcome of legal proceedings, that is prejudicial or inconsistent with substantial right of a party. See the cases of The State vs Ajie (supra) or (2000) 7 SC (pt I) 24, Pam and Anor vs Mohammed and Anor (2008) 5-6 SC (pt. 1) 83.” – Per ARIWOOLA, JSC
WRONGFUL ADMISSION OF EVIDENCE – WHETHER A WRONGFULLY ADMITTED EVIDENCE CAN BE A GROUND FOR REVERSING A DECISION ON APPEAL
“With due deference to the learned counsel for the appellant, wrongful admission of evidence would not by itself, be a ground for reversing a decision where an appellate court finds that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same even if such evidence had not been so admitted. See Section 251 (1) of the Evidence Act 2011 as amended. See also Archibong vs State (2006) 14 NWLR (Pt. 1000) 349 at 494.” – Per ARIWOOLA, JSC
OFFENCE OF MURDER – ESSENTIAL INGREDIENTS NEEDED TO PROVED BY THE PROSECUTION TO GROUND A CONVICTION FOR THE OFFENCE OF MURDER
“As rightly conceded by the two learned counsel for the parties in this case the ingredients of the offence of murder are as listed hereunder even at the risk of being repetitive the ingredients are:-
That the death of the deceased occurred.
That the death of the deceased was caused by the accused or accused person on trial, and
That it was the act or omission of the accused that caused the death of the deceased victim and such act or omission was intentional or with knowledge that death or grievous bodily harm was the probable result or consequence.
These ingredients I must emphasize here must co-exist because if any of them is missing then the offence of murder can be said not to have been proved hence, the prosecution cannot obtain conviction of murder against the accused person and the court must exonerate him and acquit him of the offence of murder. See Ogba v State (1992) & NWLR (Pt. 222) 164; Nweze v State (1996) 2 NWLR (Pt. 428) 1; Gira v State (1996) 4 NWLR (Pt 443) 375.” – Per ARIWOOLA, JSC
BURDEN/STANDARD OF PROOF – ON THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES – ON THE MEANING OF PROOF BEYOND REASONABLE DOUBT
“I must stress here, that the prosecution always has the heavy task of proving its case or these aforementioned ingredients, beyond reasonable doubt. That is the standard of proof short of which the prosecution shall fail. See Section 135 of the Evidence Act 2011 as amended. The phrase “proof beyond reasonable doubt” does not however mean beyond the shadow of doubt. It is trite to say that the law will not serve its purpose of protecting the community if it admits fanciful possibilities to deflect the course of justice. Where the evidence is so strong against an accused person as to leave only a remote possibility in his favour which can be dismissed with the sentence, “Of course it is possible but not in the least probable” but nothing short of that will suffice. It must however be noted that proof beyond reasonable doubt can not only be obtained by the prosecution fielding or calling multiplicity of witnesses to prove its case. The requirement in effecting such proof is not in the number, but in the credibility of a witness or witnesses. An offence of murder or any offence, for that matter can be proved beyond reasonable doubt (standard) even through only one credible, honest and untainted witness and not necessarily by calling myriad of witnesses who are not credible or who have interest to serve or who are merely called to tell half-truth. See Nkebisi v State (2010) All FWLR (Pt. 521) 1407 or (2010) 3 SCN 170; Miller vs Minister of Pensions (1947) 2 NIER 372.” – Per ARIWOOLA, JSC
PROOF – METHODS OF PROVING THE GUILT OF AN ACCUSED
The law is trite, that guilt of an accused person can be proved through any of the following methods: –
Through confessional statement of the accused, or
Through circumstantial evidence
Through the testimony of eyewitness or eye witnesses
See Emeka v State (2001) 14 NWLR (Pt. 734) 666; Igabele v State (2006) 2 SC (Pt. 11) 61.” – Per ARIWOOLA, JSC
WITNESS(ES) – WHETHER THE PROSECUTION IS REQUIRED TO CALL A HOST OF WITNESSES TO ESTABLISH PROVING THEIR CASE BEYOND REASONABLE DOUBT
“… the general law in calling of witnesses to testify for party in a criminal trial especially the prosecution, is that it is not the requirement of the law that the prosecution must call all conceivable witnesses. The duty of the prosecution pursuant to the provisions Section 131 (1) of the Evidence Act 2011 as amended, is to call witness or witnesses to prove their case beyond reasonable doubt. See State vs Azeez & Ors (2005) 4SC 188. I must repeat here, that it is not the number of witnesses the prosecution calls that matters, or that entitles it to prove its case. Rather, it is the quality of the evidence that is given by the witness or witnesses that matter. Infact, one witness alone may be enough to prove a case or even a murder case, like the instant case. See lyere vs Bendel Feed & Flour Mill Ltd (2008) 7-12 SC 151.” – Per ARIWOOLA, JSC
WITNESS(ES) – ON MEANING OF A “TAINTED WITNESS”
“My understanding of a “tainted witness” is that he is one witness who is either an accomplice or by the evidence he gives whether for the prosecution or for the defense may and could be regarded as having some purpose of his own to serve. See Omotola vs State (2009) 7 NWLR (Pt. 1391) 148 at 177.” – Per ARIWOOLA, JSC
INTERFERENCE WITH CONCURRENT FINDINGS OF FACT(S) – INSTANCE WHEN THE SUPREME COURT WILL INTERFERE WITH THE CONCURRENT FINDINGS BY TWO LOWER COURTS
“In the instant case, the concurrent findings of the two lower Courts is that it was the appellant that killed or murdered Godwill Itu. This finding was made by the trial court and was later affirmed by the Court below. It is not the practice of this apex court to interfere with the concurring findings of fact of the lower Courts, except in exceptional circumstances such as where it is shown that such finding is perverse or was not supported by evidence in the record. That has not been so demonstrated in this instant case by the appellant. See Shorunmu v State (2010) 12 SC (Pt 1) 73; Seven Up Bottling Company vs Adewale (2004) 4 NWLR (Pt. 862) 183; Salien v State (2015) EJSC 39. I therefore, in the light of what I stated above have no reason to interfere with the concurrent finding of the two lower courts.” – Per ARIWOOLA, JSC
CASES CITED
NONE
STATUTES REFERRED TO
1. Criminal Code, Cap 48, Vol.11 of Laws of Bendel State, 1976
