CORAM

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Ibrahim Mohammed Musa Saulawa -Justice of the Supreme Court of Nigeria

Jummai Hannatu Sankey -Justice of the Supreme Court of Nigeria

Moore Aseimo Abraham Adumein -Justice of the Supreme Court of Nigeria

Obande Festus Ogbuinya- Justice of the Supreme Court of Nigeria

Abubakar Sadiq Umar- Justice of the Supreme Court of Nigeria

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PARTIES

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IKECHUKWU EZEKIEL

APPELLANTS 

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THE STATE

RESPONDENTS 

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AREA(S) OF LAW

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CRIMINAL LAW, EVIDENCE, APPEAL, CONSTITUTIONAL LAW, HUMAN RIGHTS, ALIBI, MURDER, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

This case involves an appeal against conviction for murder. The appellant and one Iheukwumere Levi were charged with the murder of Ndubuisi Umeonu on or about the 21st day of July, 2010 at Okwuyi Ibeku in Umuahia. The prosecution’s case was that the appellant, along with his brother and one Jerome Nnokwam, attacked the deceased with various weapons including an axe and a matchet, inflicting severe injuries particularly to the deceased’s head. The deceased was initially hospitalized and eventually died on September 19, 2010.

The prosecution presented five witnesses, including an eyewitness account from PW2 (Ogbonna Ogwuru), testimony from the deceased’s brother (PW1), and medical evidence from a Consultant Pathologist (PW3) who conducted an autopsy that revealed subarachnoid hemorrhage as the cause of death. The prosecution also tendered the deceased’s statement made before his death (Exhibit C), which implicated the appellant, and the appellant’s own statement (Exhibit D).

The appellant and his co-defendant testified in their defense and called three other witnesses.

They claimed that the deceased had slapped their sister, which provoked them, and raised the defense of alibi at the appeal stage. The High Court of Abia State convicted both defendants of murder and sentenced them to death by hanging. The Court of Appeal dismissed the appellant’s appeal, leading to this appeal to the Supreme Court.

 

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HELD

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1. The appeal was dismissed.

2. The conviction and sentence of the appellant for the murder of Ndubuisi Umeonu were affirmed.

3. The Court held that the defense of alibi did not avail the appellant as it was not raised at the investigation stage and the appellant was placed at the scene of the crime by eyewitness testimony.

4. The Court held that Exhibit “C” (the deceased’s statement) was properly admitted as a dying declaration under Section 40 of the Evidence Act, 2011.

5. The Court found that the prosecution had proved the case of murder against the appellant beyond reasonable doubt.

 

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ISSUES

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1. Whether or not the defense of alibi was rightly rejected by the lower Court.?

2. Whether or not Exhibit “C” was properly admitted in evidence by the trial Court under Section 40 of the Evidence Act, 2011.?

3. Whether or not the Court below was right in affirming the decision of the trial Court.?

 

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RATIONES DECIDENDI

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ALIBI – WHEN IT SHOULD BE RAISED:

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“The law is that the defence of alibi should be raised at the earliest or first possible opportunity by a suspect, in answer to a charge by the police, at the investigation stage, to enable the Police to establish its truth or falsity. See Peter Nwachukwu Eze v. The State (1976) 1 SC 125; Kamoru Alimi Adio v. The State (1986) 3 NWLR (Pt. 31) 714 and Danlami Ozaki v. The State (1990) 1 NWLR (Pt.124) 92.”– Per MOORE ASEIMO ABRAHAM ADUMEIN, J.S.C.

 

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WHEN ALIBI COLLAPSES:

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“It is also settled that if or where the defendant was seen committing the offence, his defence of alibi would collapse. See Patrick lkemson v. The State (1989) 20 NSCC (Pt. 11) 471; Okon Udoh Akpan v. The State (2010) 10 NWLR (Pt. 1201) 190 and Danlami Ozaki v. The State (1990) 1 NWLR (Pt.124) 92.”– Per MOORE ASEIMO ABRAHAM ADUMEIN, J.S.C.

 

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DYING DECLARATION – DEFINITION AND ADMISSIBILITY:

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“A dying declaration is defined by Black’s Law Dictionary, 6th Edition as statement made by a person who believed he is about to die in reference to the manner in which he received the injuries of which he is dying, or other cause of his death, and in reference to the person who inflicted such injuries or the connection with such injuries of a person who is charged or suspected of having committed them. Generally, the admissibility of such declarations is limited to use in prosecutions for homicide. However in prosecution for homicide or in civil action, a statement made by declarant while believing that his death was imminent, concerning the cause or circumstances of what he-believed to be his impending death is not excluded by the hearsay rule.” — Per PAUL ADAMU GALUMJE, JSC (as quoted by MOORE ASEIMO ABRAHAM ADUMEIN, J.S.C.)

 

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JUSTIFICATION FOR ADMITTING DYING DECLARATIONS:

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“The justification for admitting such evidence is predicated on the solemn ground that ‘nobody would wish to die with a lie on his lips’. Although Courts insist on ‘settled, hopeless expectation of death; and although death must be expected very soon, it is not necessary that it must be expected immediately. That was why in a case like R. vs. Bemodoffi, the declaration of the deceased was held admissible, notwithstanding that he still was alive until after one week since the time of the assault on him by the defendant.” — Per SEBASTINE TAR. HON, SAN (as quoted by MOORE ASEIMO ABRAHAM ADUMEIN, J.S.C.)

 

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ADMISSIBILITY OF DYING DECLARATION UNDER SECTION 40 OF THE EVIDENCE ACT:

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“Section 40 of the Evidence Act, 2011 provides thus: ‘(1) A statement made by a person as to the cause of his death, or as to any of the circumstance of the events which resulted in his death in cases in which the cause of that person’s death comes into question is admissible where the person who made it believed himself to be in danger of approaching death although he may have entertained at the time of making it hope of recovery.’ ‘(2) A statement referred to in subsection (1) of this section shall be admissible whatever may be the nature of the proceeding in which the case of death comes into question.'” — Per MOORE ASEIMO ABRAHAM ADUMEIN, J.S.C.

 

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PROVING A CRIMINAL CASE BEYOND REASONABLE DOUBT:

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“The law is quite settled that in a trial for any criminal offence, the prosecution can prove its case, beyond reasonable doubt, by any of the following acclaimed or acknowledged Ways: (a) by the evidence of an eyewitness or eyewitnesses; (b) by the confession of the defendant; and (c) by circumstantial evidence. See the cases of Michael Adeyemo v. The State (2015) 16 NWLR (Pt. 1485) 311; Joseph Bille v. The State (2016) 15 NWLR (Pt. 1536) 363; Ifeanyichukwu Akwuobi v. The State (2017) 2 NWLR (Pt. 1550) 421; Wahab Alao v. The State (2019) 17 NWLR (Pt.1702) 501 and Andrew Koye Fekolomoh v. The State (2021) 6 NWLR (Pt. 1773) 461.” — Per MOORE ASEIMO ABRAHAM ADUMEIN, J.S.C.

 

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INGREDIENTS OF MURDER:

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“For the offence of murder or culpable homicide (punishable with death) the prosecution must prove beyond reasonable doubt that: (a) the deceased has died; (b) the death of the deceased was caused by an act or omission of the defendant; and (c) the killing was intentional, with knowledge that, by the defendant’s act or omission, death or grievous bodily harm was its probable consequence. See the cases of The State v. Collins Ojo Aibangbee (1988) 3 NWLR (Pt. 84) 548; Gabriel Okeke v. The State (1999) 2 NWLR (pt. 590) 246; Godwin Igabele v. The State (2006) 6 NWLR (Pt. 875) 100 and Patrick Ekpemegbere v. The State (2024) 4 NWLR (Pt. 1928) 203.” — Per MOORE ASEIMO ABRAHAM ADUMEIN, J.S.C.

 

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CONDITIONS FOR RELYING ON DYING DECLARATION:

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“The admission in evidence of a dying declaration does not ipso facto discharge the burden of proof placed on the prosecution. The Court has to consider some conditions. For example, the words used in the dying declaration have to be complete, concise and unequivocal. See the cases of Solomon Thomas Akpan v. The State (1992) 6 NWLR (Pt. 248) 439 and Michael Hausa v. The State (1994) 7-8 SCNJ (Pt. I) 144.” –– Per MOORE ASEIMO ABRAHAM ADUMEIN, J.S.C.

 

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ELEMENTS OF PROVOCATION:

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“In Uraku V State (1976) LPELR-SC 300/1975: (1976) 6 S.C 128 the Supreme Court held that provocation in law consists mainly of three elements: (a) the act of provocation: (b) the loss of self-control, both actual and reasonable: and (c) retaliation proportionate to the provocation.” –– Per HON. JUSTICE A. U. KALU (as quoted by MOORE ASEIMO ABRAHAM ADUMEIN, J.S.C.)

 

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REQUIREMENTS FOR DEFENSE OF PROVOCATION:

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“It is settled law that to avail himself of the defence of provocation, the appellant must have done the act for which he is charged.. i. in the heat of passion: ii. the act must have been caused by sudden provocation: iii the act must have been committed before there was time for passion to cool, and iv the mode of resentment must be proportionate to the provocation offered. These four requirements must co-exist before the defence can succeed.” — Per HON. JUSTICE A. U. KALU (as quoted by MOORE ASEIMO ABRAHAM ADUMEIN, J.S.C.)

 

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RAISING ISSUES ON APPEAL:

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“It is decipherable from the record, the bedrock of the appeal, that there are an avalanche of viva voce and documentary evidence that inculpated the appellant as a particeps criminis in the homicide charge preferred against him. The appellant erected the absolute defence of alibi. However, the appellant, in his infinite wisdom, never raised it before the law enforcement agency, the police, nor during his parol evidence before the trial Court. This is a serious faux pas on his plea of alibi.” — Per OBANDE FESTUS OGBUINYA, J.S.C.

 

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CONCURRENT FINDINGS OF FACT:

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“Finally, this appeal is against concurrent findings of facts. Repeatedly, this Court has stated that it will not lightly interfere with concurrent findings of facts unless it is firmly established that such concurrent findings are perverse and manifestly lead to a miscarriage of justice. I do not see any such perverseness in the concurrent findings of the two Courts below warranting any interference by this Court.” — Per JUMMAI HANNATU SANKEY, J.S.C.

 

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APPELLATE COURT’S JURISDICTION TO HEAR NEW ISSUES:

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“In the instant case, the appellant did not raise the issue of alibi at the Court below to avail the said Court the opportunity to pronounce on same. It is only where the lower Court has pronounced on the point canvassed that this Court is properly placed to review such a finding, with a view to determining whether the pronouncement of the lower Court thereon was in tandem with the facts and the law applied thereto, or not. Put another way, as an appellate Court and, indeed, the apex Court, unless leave is sought and granted to raise a new issue, an appellant cannot in an impromptu fashion presume to raise an issue in his appeal which was not canvassed at the Court below and a finding made thereon.” — Per JUMMAI HANNATU SANKEY, J.S.C.

 

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CASES CITED

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STATUTES REFERRED TO

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 Constitution of the Federal Republic of Nigeria 1999 (as amended)

 Evidence Act, 2011

 Criminal Code

 Penal Code

 

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