CORAM

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PARTIES

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ABBEY MATHEW

APPELLANTS 

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THE STATE

RESPONDENTS 

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AREA(S) OF LAW

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SUMMARY OF FACTS

The deceased- Chief Samuel Okhuelegbe sometime on 5th October, 2006 had petitioned the Uromi Police Division, reporting a case of malicious damage against the 1st accused – lyere Ijeabulu. On 17/10/2006, PW2, having been detailed to investigate the matter proceeded with PW4 to meet with the deceased petitioner in order to effect the arrest of the suspects. The said lyere Ijeabulu was then arrested. On their way back to Uromi, between Ebulen and Okigene, a group of youths from Ebole-Uzea, all carrying machetes and numbering over one hundred and fifty persons, who were doing community work on the road, blocked the way and prevented the Policemen from taking lyere Ojeabulu further. In the process, the deceased and the Policemen were beaten. The attackers tore the clothes of the deceased, and at a point, the deceased fell down. The PW2 eventually escaped and from his hiding requested for reinforcement from the Divisional Police Office at Uromi. But at the time the policemen arrived the scene, the deceased was no longer where he was with his attackers. They later traced the deceased back to Ebulen village and found him lying down face up in front of lyere Ojeabulu (1st accused’s) house in the pool of his blood with machete cuts all over his body and with his two legs completely broken. The deceased was then taken to the hospital where he later died. The Appellant and two others were arraigned before the Edo State High Court of Justice, on two count charge of conspiracy to commit murder, punishable under Section 324 of the Criminal Code, Cap.48 Vol.11 Laws of the Bendel State of Nigeria 1976 now applicable to Edo State of Nigeria and Murder punishable under Section 319 (1) of the Criminal Code, Cap.48 Vol. II, Laws of Bendel State of Nigeria 1976 as applicable to Edo State. The three accused persons were tried, found guilty, convicted and sentenced accordingly to 12 years imprisonment with hard labour on count 1 and to death by hanging on the 2nd count. Appeal by each of the three convicts was dismissed by the Court below, leading to the instant appeal by the 2nd convict.

 

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HELD

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Appeal Dismissed

 

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ISSUES

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“Whether with the total of evidence on record if properly evaluated by the trial Court, the Court below was right in affirming the conviction and sentence of the appellant for murder and conspiracy to commit murder.”

 

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RATIONES DECIDENDI

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APPEAL GROUND OF APPEAL- STATUS OF A GROUND OF APPEAL WHERE NO ISSUE WAS DISTILLED FROM SAME

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“No issue has been distilled from ground 4 of the amended Notice of Appeal meaning that the said ground has been abandoned and liable to be discountenanced and accordingly struck out. See; Madumere Vs. Okafor (1996) 4 AXNJ 73; Emespo J. Continental Ltd Vs. Corona Shifah – Rtsge Sellschaft MBH & Company (2006) 11 NWLR (Pt.991)365, (2006) 5 SC (Pt.1) 19; (2006) LPELR – 1126; Adelekan Vs. ECU-line NV (2006) 12 NWLR (Pt.993) 33; (2006) 5 SC (Pt.11) 32; (2006) LPELR 113.” –

 

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APPEAL REPLY BRIEF-WHETHER THE FILING OF A REPLY BRIEF IS MANDATORY

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“Ordinarily, the filing of a reply brief of argument is not mandatory in the sense of being compulsory. But where a respondent’s brief of argument raises issues or points of law not covered in the appellant’s brief, then an appellant ought to file a reply brief of argument in the best interest of his case. See; Popoola Vs. Adeyemo (1992) 3 NWLR (Pt.284) 748; Alimi Akanbi Dada Vs. Chief Jonathan Dosunmu (2006) 18 NWLR (Pt.1000) 134; (2006) 12 (Pt.2) SCM 108; (2006) 27 NSCQR 485.” –

 

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REPLY BRIEF- WHEN IS IT NECESSARY TO FILE A REPLY BRIEF?

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“In Aliyu Salihu Vs. Alhaji A. Wasiu (2016) 8 SCM 180; (2016) LPELR 26062, this Court reiterated that a reply brief is to be filed only in response to new argument of the respondent on law that has newly been raised by the respondent but was not covered by the appellant in his brief of argument. Where there has been no such new issue or point of law, a reply brief of argument is most unnecessary and anyone filed in that respect is liable to being discountenanced or ignored by the Court. A reply brief is said not to be a repair kit to put right any lacuna in the appellant’s brief of argument. See also; Dr. Augustine N. Mozie & Ors Vs. Chike Mbamalu & Ors (2006) 12 SCM (Pt.1) 306 at 320; Osuji Vs Ekeocha (2009) 10 SCM 72 at 85; (2009) 16 NWLR (Pt.1166) 81. A reply brief is not meant to afford the appellant an opportunity for reargument or another bite at the cherry. It is not meant to be used to repeat an argument or to extend the scope of the argument and submission in the appellant’s brief of argument. The appellant’s reply brief of argument filed in this case is much more than a reply brief. It is a complete re-argument of the appellant’s case all over, which is beyond the scope of a reply. In the circumstance, it is liable to be discountenanced and is accordingly struck out.” –

 

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PROOF OF MURDER- INGREDIENTS THAT MUST BE PROVED BEYOND REASONABLE DOUBT TO SECURE A CONVICTION FOR MURDER

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“It has long been established that for the prosecution to secure conviction of a suspect for murder, the following three elements or ingredients must be proved beyond reasonable doubt. (1) That the deceased actually died. (2) That it was the act of the accused that caused the death of the deceased and; (3) That the act of the accused which caused the death of the deceased was intentional and it was with the knowledge that it would result in death or grievous bodily harm would be the probable consequences of the act of the accused. See; Alewo Abogede Vs. The State (1996) 5 NWLR (Pt.448) 270 (1996) LPELR 45; Igabele Vs. The State (2006) 6 NWLR (Pt.975) 1001; (2006) 3 SCM 143; (2006) LPELR 1441; Hakeem Fatai Vs. The State (2013) 10 NWLR (Pt. 1361) 1 at 22; (2013) 5 SCM 140 at 155.” –

 

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GUILT OF AN ACCUSED PERSON – MODE OF ESTABLISHING THE GUILT OF AN ACCUSED PERSON IN CRIMINAL TRIALS

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“The law is trite in criminal trials that the guilt of an accused person charged with the commission of an offence can be established by any or all of the following: (a) The confessional statement of the accused; (b) Circumstantial evidence and (c) Evidence of an eyewitness. See; Folorunsho Alufohai Vs. The State (2014) LPELR? 24215; (2014) 12 SCM (Pt.2) 122; (2015) 3 NWLR (Pt.1445) 172; (2015) All FWLR (Pt.765) 198.” –

 

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PROOF OF EVIDENCE- FACTS CONTAINED IN PROOF OF EVIDENCE MUST BE TENDERED IN EVIDENCE DURING TRIAL

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“The facts contained in the proof of evidence will go to no issue unless they are tendered in evidence during the trial to enable the Court consider them with the proceedings. The Court cannot go in search of evidence for any of the party before it. Pages 47-48 of the record referred to by the appellant not having been tendered by either party was not part of the proceedings of the appellant’s trial. Proof of evidence is to disclose a prima facie case sufficiently believed to link an accused with the alleged crime and justify proceeding with the trial.” –

 

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CROSS-EXAMINATION -WHETHER A PREVIOUS INCONSISTENT STATEMENT CAN BE PUT TO A WITNESS IN CROSS-EXAMINATION

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“In Madumere and Ors. v. Okafor and Ors [1996] 4 SCNJ 73, this Court held [per Ogwuegbu, JSC,] that: A previous inconsistent statement can be put to a witness in cross-examination for the purpose of testing his credibility. The statement is not admissible for the purpose of proving the truth of its contents. The fact that the statement was made and is inconsistent with the witness’s testimony in the present proceeding is significant. [Italics supplied for emphasis] Other cases on this question include: Bayol v. Ahemba [1999] 10 NWLR (pt.623) 381; Balogun v. A. G. Ogun State [2002] 6 NWLR (pt.763) 512; Obiri v. State [1997] 7 NWLR (pt. 513) 352; Kasa v. State [1994] 5 NWLR (pt.344) 269; Romaine v. Romaine [1992] NWLR (pt.238) 650.”-

 

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EVALUATION OF EVIDENCE- INSTANCE WHEN APPELLATE COURT CAN EVALUATE EVIDENCE

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“As a general rule, when the question of evaluation of evidence is against the non-evaluation or improper evaluation of the evidence, the appellate Court is in as good a position as the trial Court to do its own evaluation Fatai V. State (2013) 10 NWLR (Pt. 1361) 1 at 21 SC.. When it involves the credibility of witnesses, an appellate Court cannot do much since it is the trial Court that saw them, heard them and watched their demeanour in Court that is in the vantage position to believe or disbelieve witnesses; this can never be captured by an appellate Court that only has the “cold printed record to contend with” see Sogunro & Ors V. Yeku & Ors (2017) LPELR-41905(SC)” –

 

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FINDINGS OF FACT- WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF AND CONCLUSIONS OF LOWER COURTS

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“In this case, the trial Court believed the Prosecution witnesses, therefore, the Court below was right not to interfere with its findings and conclusions that had not been shown to be perverse in any way. This Court cannot intervene because as Ademola, CJN, observed in Omisade V. The Queen (1964) NSCC (Vol. 3) 170, it is not the function of this Court to retry a criminal case on appeal. He further stated that: If there was evidence before the trial Judge from which he could reasonably have come to the conclusion to which he did, the verdict must stand. The law was aptly put by Lord Tucker in the case of R. v. Aladesuru & Ors 39 C.A.R. 184, which was an appeal from Nigeria. The learned Lord at p. 185 of the Report said: It will be observed that the language of the WACA Ordinance follows the English Criminal Act, 1907, under which it has long been established that the appeal is not by way of re-hearing as in civil appeals from a Judge sitting alone, but is a limited appeal, which precludes the Court from reviewing the evidence and making its own valuation.” –

 

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CASES CITED

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None

 

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STATUTES REFERRED TO

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1. Criminal Code, Cap.48 Vol.11

2. Laws of the Bendel State of Nigeria 1976

 

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