Areas Of Law
APPEAL, COURT, CRIMINAL LAW AND PROCEDURE, JUDGEMENT AND ORDER, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES

Summary Of Facts
The Appellant was arraigned on a six count charge of attempted murder and murder contrary to section 320 and 316 of the Criminal Code Law of Lagos State 2003, before a High Court of Justice, Ikeja Judicial Division, Lagos State. The Appellant a General-Overseer of the Christian Praying Assembly  with headquarter at Ajao Estate, Ikeja, Lagos, had a close relationship with some members of his congregation before the incident that happened on the 22nd day of July 2006. It was the Prosecutor’s case that the Appellant accused the surviving victims and the deceased of immoral behavior and in a bid to punish them for same, they were beaten with various objects by him and he summoned them to kneel down causing them to be doused with fuel and burnt. Five of the six victims escaped with various injuries inflicted on them by the Appellant but the deceased was not lucky as she was alleged to have suffered 65% degree burns which resulted to her death. The Appellant on the other hand admitted punishing the victims for immoral behavior but that the punishment was different from the incident that lead to this charge. At the trial the prosecutor called 12 witnesses while the Appellant testified in his defense and called eight witnesses. At the end of the trial, the trial Judge found the Appellant guilty of all the six counts charge and was convicted. He was sentence to 20 years imprisonment with hard labour on Counts 1, 2, 4, and 5, on count 3, he was sentenced to 10 years imprisonment with hard labour and finally on count 6 he was sentenced to death for murder. Dissatisfied with the trial court’s decision the Appellant appealed to the Court of Appeal which affirmed the decision of the trial court. Still dissatisfied, the Appellant has appealed to this Court.

Held
Appeal Dismissed

Issues For Determination
➢    Whether the trial of the Appellant on the amended information in this case is competent when the original information is undated, uninitialed and unfiled and whether failure of the lower Court to consider and decide on this issue as raised in Appellant’s Brief of argument is proper

➢    Whether the lower Court is obliged to invite parties to address it on the issue it raised suo motu before expunging some from its record when delivering it (sic) judgment, any evidence that was admitted without objection. Was the lower Court right in raising the issue of inadmissibility of Exhibits PI, P4 and P9 as well as part of the oral evidence if PW2, PW5 and PW7 suo motu from the record when delivering its judgment without hearing the Appellant, and was the lower Court right when it upheld the conviction of the Appellant despite the fact that the evidence adduced by investigating Police Officer {PW2) lack credibility.

➢    Whether the lower Court was right to have dismissed the defence of alibi put up by the Appellant, and was the lower Court right when it upheld the conviction of the appellant by the trial Court despite the fact that the trial Court place (sic) the burden on the appellant to prove his innocence by not giving effect to the written statements of the deceased, in which she unequivocally stated that what happened to her was caused by generator accident.

➢    Whether PW1 is a tainted witness whose evidence required corroboration and in the absence of which her evidence should be treated as unreliable

➢    Whether the lower Court was right when it held that the evidence of PW3 and PW4 were (sic) corroborated by the evidence of PW1, PW8, PW9 and PW10 as well as other real evidence before the Court; was the Sower Court right when it relied on the uncorroborated evidence of PW1, PW3, PW4, PW9, PW10 and PW11 adduced by the prosecution at the trial Court to uphold the appellant (sic) conviction for attempted murder and murder, and was the lower Court right when it upheld the conviction of the appellant despite the fact that the trial Court was saddled with the responsibility of conducting investigation with respect to the genuity of Exhibit (sic) PW10, P11 and P12 as the prosecution had failed to prove the said Exhibits against the appellant beyond reasonable doubt.

➢    Whether the lower Court properly evaluated the evidence of the parties before arriving at the decision to convict the appellant, and was the lower Court right when it upheld the conviction of the appellant despite the fact that the trial Court in evaluating the evidence adduced by the prosecution has not established by credible evidence and beyond reasonable doubt that it was the appellant that caused the burnt  injuries, consequently resulting to the death of the deceased and that the deceased -Ann King is dead

➢    Whether the lower Court was right    when    it    upheld the conviction of the appellant by the trial Court despite the fact that the charges were brought by the prosecution against the appellant without    any    credible and reasonable  suspicion   that the appellant committed the offences of attempted murder and murder, and was the lower Court right when it upheld the conviction of the     appellant,     that the prosecution proved the cases of murder and attempted murder against   the   appellant beyond reasonable   doubt   when the prosecution failed to prove the ingredients of the offences of murder and attempted murder beyond reasonable doubt.

➢    Whether the lower Court duly considered the contradictions and inconsistencies complained of by the appellant in the prosecution’s case and arrived at its decision that they are not material to be fatal to the prosecution’s case.

➢    Whether the lower Court was right to have agreed with the trial Court  that   it  considered and evaluated all evidence adduced as against the appellant complained that the trial Court considered the evidence of prosecution witnesses and made up its mind before considering the evidence of the appellant  witnesses which show  bias

➢    Whether   the   belief   of the deceased      in      danger of approaching death can be inferred from     his     declaration or statements, surrounding circumstances or opinion of third parties     and     whether the contention of the appellant that the deceased’s belief in danger of approaching  death  can be garnered; and    inferred from surrounding  circumstances and evidence is  correct and was the lower Court right when it upheld the    conviction    of appellant despite the fact that Section 33 (1) (b) of the Evidence Act relied on by the trial Court to hold that the first   two   statements   of the deceased does not constitute dying declaration as the accused did not believe herself to be in danger of approaching death is founded in law.

➢    Whether the lower Court was right when it upheld the conviction of the appellant despite the fact that the trial Court failed to reach the conclusion from the conduct of the Honourable Director of Public Prosecution (DPP) in the matter that the prosecution are interested in persecuting the appellant and not prosecuting him,

➢    Whether the lower Court was right when it upheld the conviction of the appellant for the offence (sic) of attempted murder and murder despite the fact that no weapon was found or recovered from the accused/appellant

Rationes
REPLY BRIEF – NATURE OF A REPLY BRIEF
“A reply brief is not a forum for emphasizing the argument in the appellant’s brief, it is not a forum for presenting a new and better appellant’s brief or repeating arguments already in the said brief; neither is it meant to repeat the issues joined either by emphasis or by expatiation. See Ochemaje v. The State (2008) 6-7 SC (Pt. 11} p.l. A reply brief, as the name implies, ought to be confined to new issues or points of law in the respondent’s brief. Appellant’s reply brief is not one properly so-called. It is a supplementary brief which has no place in our appellate practice and it is therefore discountenanced in the determination of the appeal. See Ehot v. State (1993) 4 NWLR {Pt 290) 644″. PER N.S.NGWUTA, J.S.C

FORMULATION OF ISSUES FOR DETERMINATION – PURPOSE OF FORMULATION OF ISSUES FOR DETERMINATION
“The main purpose of formulation of issues for determination in an appeal is to enable the parties to narrow the issues in controversy in the grounds of appeal in the interest of accuracy, clarity and brevity. See Ogbu Inyinya & Ors v. Obi Okudo & Ors (1990) 4 NWLR (Pt. 146) 551 at 568″. PER N.S.NGWUTA, J.S.C

AMENDMENT – EFFECTIVE DATE OF AN AMENDMENT ON THE FACTS OF A CASE
“An amendment on the facts of this case is akin to amendment of pleadings which speaks from the date the original process was filed. See Rotimi v. Macgregor (1974) 11 SC 133 at 152; Sneade v. Watherton (1904) 1 KB 295 at 297; Adesunmi v. A-G Ekiti State (2002) 93 LRCN 43 at 64 and 65.” PER N.S.NGWUTA, J.S.C

APPEAL –MEANING OF AN APPEAL
“Now an appeal is an invitation to a higher Court to review the decision of a lower Court to find out whether on proper consideration of the facts placed before it and the applicable law, the lower Court arrives at a correct decision. See Oredatin v. Arowofo (1989) 4 NWLR (Pt. 114) 172 at page 211.” PER N.S.NGWUTA, J.S.C

DEFENCE OF ALIBI – PURPORT OF A DEFENCE OF ALIBI
“Alibi in its Latin origin means “Elsewhere”. The defence of alibi postulates that the accused was somewhere other than the locus criminis at the time the offence was committed. It means he was not at the scene at the time of the commission of the crime and could therefore not have committed it or participated in its commission. See Mohammed Chewon v. State (1986) 7 NWLR (Pt 22) 331; Udoebere & Ors v. The State (2001) 88 CRNC 2144 at 2153″. PER N.S.NGWUTA, J.S.C

PROOF OF ALIBI – FEATURES OF A SUCCESSFUL PLEA OF ALIBI
“The burden of proof of alibi is on the accused person. See Gachi & Anor v. The State (1965) NMLR 333 at 335;  Nwosisi v. The State (1976) 6 SC 109 though proof is on the balance of probabilities. See Ozuki v. The State (1988) 2 NSCC 75. For an accused person to successfully plead alibi, the plea must be unequivocal, he must state the time, the place and the people who were with him at the time and place and he must raise the plea during investigation and not at the trial, so that the veracity of his statement to the Police to that effect can be verified. See Alami v. State (1988) 2 NSCC 271; Obakpolo v. State (1991) 1 NSCC 271; Njovens v. The State (1973) NSCC 257 at 258.” PER N.S.NGWUTA, J.S.C

DEFENCE OF ALIBI – DUTY ON THE PROSECUTION TO DISPROVE THE DEFENCE OF ALIBI WHEN RAISED
“Once the defence of alibi is raised and the evidential burden discharged, the onus lies on the prosecution to disprove it. PER N.S.NGWUTA, J.S.C

TAINTED WITNESS – MEANING OF A TAINTED WITNESS
“A tainted witness is a person who may be strictly an accomplice but is a witness with some purpose of his own to serve. See Onuoha v. The State (1987) 4 NWLR (Pt. 65) 331 at 346. The phrase “tainted witness” connotes either of the following: (a)a witness who is by evidence an accomplice in the offence charged or (b) a person who may be regarded on the evidence as having some purpose of his own to serve. See Ishola v. The State (1978) 9 & 10 SC 81 at 100.” PER N.S.NGWUTA, J.S.C

ISSUE FOR DETERMINATION – MEANING OF ISSUE FOR DETERMINATION IN AN APPEAL
“An Issue in an appeal is a succinct and precise question based on one or more grounds of appeal for the determination of the Court. See Onwo v. Oko & Ors (1996) 6 NWLR (Pt. 456) 584 at 615“. PER N.S.NGWUTA, J.S.C

COURT – WHETHER THE COURT CAN ASSIST PARTIES TO AN ACTION
“The Court is an umpire and does not take sides in the dispute. If at the end of the day the prosecution failed to prove the said exhibits against the Appellant beyond reasonable doubt the Court will reject the exhibits.
It is not the business of the Court to launch an investigation to prove the genuity of an exhibit which the prosecution has failed to link with its case. The Court is an impartial arbiter and does not help one party against the other”. PER N.S.NGWUTA, J.S.C

EVALUATION OF EVIDENCE – INSTANCE WHERE AN APPELLATE COURT WOULD RE-ASSESS AND EVALUATE THE EVIDENCE BY A TRIAL COURT
“Evaluation of evidence is primarily the exclusive preserve of the trial Court except in case of documentary evidence in which the trial Court and the appellate have equal right to evaluate the evidence. See Iwuoha v. Nipost {2003} 4 SC (Pt. 11) 37. Where the trial Court failed to evaluate the evidence or to evaluate it properly or the evaluation resulted in a perverse conclusion the appellate Court would re-assess and evaluate the evidence to reach a joint conclusion – which may be different from that of the trial Court, but not necessarily so. See Okolo v. Uzoka (1978) 4 SC 77 at 86; Abusamwan v. Merchantile Bank (Nig) Ltd (No. 2) (1987) 3 WLR (Pt. 60) 20″. PER N.S.NGWUTA, J.S.C

SUSPICION – MEANING OF SUSPICION
“Suspicion implies a belief or opinion based upon facts or circumstances which do not amount to legal proof or proof at all. See Ben Okafor v. Police (1965) NMLR 89, 90/91; Adio & Anor v. The State (1986} 2 NWLR 381, 389; Onah v. The State (1985} 3 NWLR 236, 244. Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking. Suspicion arises at or near the starting point of an investigation for the end of obtaining prima facie proof of crime. When such proof has been obtained, the Police case is complete and the matter is taken to Court. See Shasban Bin Itussain v. Chong Jook Kam (1969) 3 All ER 1926 at 1630 per Lord Delvin.” PER N.S.NGWUTA, J.S.C

VALIDITY OF A JUDGEMENT – A JUDGEMENT IS VALID WHERE THE ESSENTIAL ELEMENTS ARE PRESENT
“Judgment writing is an art and once the essential elements are present in the judgment, it will not matter what method was employed in writing the judgment”. PER N.S.NGWUTA, J.S.C

DYING DECLARATION – MEANING OF A DYING DECLARATION
“Dying declaration is an exception to the hearsay rule. See Section 33 of the Evidence Act. It is a declaration made in extremity, when the maker is at the point of death and every hope of life is gone. In this state, the motive to tell lies is silenced and the mind is induced by the most powerful consideration to speak the truth. See R v. Woodcock (1789)168 ER 353; Orshior Kugo v. The State (1960) NMLR 153. PER N.S.NGWUTA, J.S.C

ADMISSIBILITY OF DYING DECLARATION – CONDITIONS FOR ADMISSIBILITY OF DYING DECLARATION
“Dying declaration is admissible only in trials for murder and manslaughter when the declaration is made by the victim of the homicide. See R v. Mead (1824) 107 Eng Rep 509; Indabo v. Kano N/A (1957) 2 FSC 4.It is admissible to prove the cause of death or the transaction resulting in the death of the deceased but not the motive for the crime or to explain subsequent or previous transactions, the declarant must have believed himself/herself to be in danger of approaching death. See R v. Ogbuewu (1949) 4 WACA 67; Garba v. R (1959) 4 FSC 162“. PER N.S.NGWUTA, J.S.C

ATTEMPT TO COMMIT A CRIME – ELEMENTS OF AN ATTEMPT TO COMMIT A CRIME
“Attempt to commit a crime is an inchoate offence, the elements of which are the physical acts of the accused sufficiently proximate to the complete offence with an intent on the part of the accused to commit the complete offence, it is something more than mere preparation to commit the offence. See Hope v. Brown (1954) 1 WLR 250 at 252; Ozigbo v. COP (1976) All NLP 109 at 115 per Alexander, CJN”. PER N.S.NGWUTA, J.S.C

CONCURRENT FINDINGS OF LOWER COURTS – LIMIT ON THE POWERS OF AN APPELLATE COURT ON INTERFERENCE WITH THE CONCURRENT FINDINGS OF LOWER COURTS
“For a fact this is one of those instances where this court cannot interfere with the concurrent findings of the two courts below as the findings were a throw up from available evidence in the context of the guiding principles of law and no miscarriage of justice occasioned. See Kazeem Popoola v State (2013) LPELR 20973″. PER M.U. PETER-ODILI, J.S.C

Statutes Referred To
Criminal Code Laws of Lagos State 2003
Evidence Act 2011 (as amended)