IORVER TERVER v. THE STATE

CORAM

Tijjani Abubakar Justice Supreme Court of Nigeria

Emmanuel Akomaye Agim Justice Supreme Court of Nigeria

Jamilu Yammama Tukur Justice Supreme Court of Nigeria

Abubakar Sadiq Umar Justice of the Supreme Court of Nigeria

Mohammed Baba Idris Justice Supreme Court of Nigeria

PARTIES

IORVER TERVER

APPELLANTS 

THE STATE

RESPONDENTS 

AREA(S) OF LAW

CRIMINAL LAW, APPEAL, PRACTICE AND PROCEDURE, EVIDENCE, CONSTITUTIONAL LAW, HUMAN RIGHTS, ADMINISTRATION OF CRIMINAL JUSTICE

SUMMARY OF FACTS

This case revolves around the appeal by Iorver Terver against his conviction for rape by the High Court of Benue State at Makurdi in case No. MHC/77C/2009. The High Court had convicted the appellant of rape and sentenced him to 12 years imprisonment with a fine of N10,000. The Court of Appeal in Appeal No. CA/MK/226C/2013 dismissed the appellant’s appeal, thereby affirming the judgment of the High Court.

The appellant had been charged with rape following an incident on January 4, 2009, when one Terumbur Queen Anande (PW1) was returning home after visiting her uncle. She was dropped off by a commercial motorcycle near NEPA office in Makurdi around 8 pm. The prosecution alleged that the appellant, along with one Kelvin and Tavershima Weve, attacked PW1 at gunpoint, robbed her of her mobile phone and N5,000, dragged her to a nearby mechanic workshop, and forcefully had sexual intercourse with her against her will. They released her around 2 am, after which she reported the incident to her uncle who took her to the police to file a formal complaint.

During the trial, a key piece of evidence was Exhibit 8, the appellant’s extra-judicial confession, which had been admitted after a trial-within-trial to determine its voluntariness. The appellant had filed an interlocutory appeal against the admission of Exhibit 8, but the trial court proceeded to use the exhibit in convicting him. The Court of Appeal later dismissed the interlocutory appeal, affirming that Exhibit 8 was properly admitted.

HELD

1. The appeal was dismissed.

2. The Supreme Court held that the issues raised for determination by the appellant were general, vague, and did not contain any substantial proposition of law or fact. Issue No. 1 was additionally found to be hypothetical and abstract.

3. The Court affirmed that an interlocutory appeal against the admission of evidence during a criminal trial does not deprive the trial court of the power to use such evidence pending the determination of the appeal.

4. The Court held that the concurrent findings of the two lower courts on facts were not shown to be perverse, as they were supported by abundant evidence including the appellant’s confession (Exhibit 8), the medical examination report (Exhibit 9), and the testimony of witnesses.

5. The Supreme Court affirmed the conviction of the appellant for the offense of rape and upheld the 12-year sentence with a fine of N10,000.

ISSUES

1. Whether a judgment established to be perverse and drained of the requisite jurisdiction could be justly affirmed on any ground by an appellate Court of justice. (Distilled from Grounds 1, 2, and 3 of the Grounds of Appeal)?

2. Whether the judgment of the lower Court is fair, reasonable and warranted having regards to the evidence properly proved. (Distilled from grounds 4 and 5 of the Grounds of Appeal)?

RATIONES DECIDENDI

SCOPE OF APPELLATE JURISDICTION – LIMITS OF SUPREME COURT’S POWER IN APPEALS AGAINST CONCURRENT FINDINGS

“This appeal being against concurrent findings of two lower Courts on facts, the scope of the appellate power of this Court in dealing with such appeal is limited to determining if the findings are perverse or were made in violation of law causing miscarriage of justice. The issues for determination must raise questions or propositions within this scope and not raise general questions beyond it.” – Per EMMANUEL AKOMAYE AGIM, J.S.C.

PRESUMPTION OF CORRECTNESS – CONCURRENT FINDINGS OF LOWER COURTS

“This appeal is against the Court of Appeal findings of facts concurring with those of the trial Court on the evidence. The law presumes that the concurrent findings are correct and should not be interfered with unless they are shown not to be correct because they are perverse and violate the law and have caused injustice thereby. This presumption limits the scope of appeals against concurrent findings of fact to appeals on grounds that the findings are perverse or contrary to law.” – Per EMMANUEL AKOMAYE AGIM, J.S.C.

REQUIREMENTS FOR VALID ISSUES IN APPELLATE PROCEEDINGS – SPECIFICITY AND RELEVANCE

“A valid issue for determination in an appeal is one that raises from a ground of appeal a proposition of law or fact concerning the part of the judgment complained against in the ground of appeal and the determination of which can result in the success of the appeal. None of the issues raised for determination in the appellant’s brief contains any question that is valid for determination.” – Per EMMANUEL AKOMAYE AGIM, J.S.C.

EFFECT OF INTERLOCUTORY APPEAL – CONTINUED USE OF EVIDENCE DURING TRIAL

“The notion that an interlocutory appeal or entry of an interlocutory appeal against the admission of a confession or other evidence during a criminal trial, robs the trial Court the power to use it as evidence in the trial pending the determination of the interlocutory appeal is wrong. Such a notion, if accepted as correct, would operate to frustrate and defeat the administration of criminal justice.” – Per EMMANUEL AKOMAYE AGIM, J.S.C.

NO STAY OF CRIMINAL PROCEEDINGS – INTERPRETATION OF SECTION 306 ACJA

“If trial Courts cannot use admitted evidence or have to stay or halt trial proceedings pending the determination of an interlocutory appeal against the said admission of the evidence, criminal trials would become inordinately protracted and most, if not all criminal trials, would end up frustrated. If the trial Court cannot use admitted evidence pending the determination of an interlocutory appeal against the said admission of the evidence, this would result in a stay or halt of the trial proceedings contrary to the objective of Section 306 of the Administration of Criminal Justice Act 2015 that there should be no stay or halt of criminal proceedings.” – Per EMMANUEL AKOMAYE AGIM, J.S.C.

ESTOPPEL BY CONDUCT – PARTY INITIATING WRONG PROCEDURE

“A party who initiates the use of a wrong procedure or who consents to its use cannot complain against it.” – Per EMMANUEL AKOMAYE AGIM, J.S.C.

EVIDENCE OF PERVERSITY – DEFINITION AND SCOPE

“A finding is perverse where it is not supported by the evidence on record, where the Court took into account evidence that it ought not to or where it overlooked a vital aspect of the evidence; where there has been a wrong application of some principles of substantive law or procedure or where it does not reflect a proper exercise of judicial discretion.” – Per MOHAMMED BABA IDRIS, J.S.C.

TEST FOR PERVERSITY IN JUDICIAL FINDINGS – COUNTER TO EVIDENCE

“A finding of fact or decision is said to be perverse when it runs counter to pleadings and evidence on record or where the Court which findings or decision are/is being reviewed is shown to have taken into account irrelevant matters or shut its eyes to the obvious and by its very nature the finding or decision has occasioned a miscarriage of justice. A decision being reviewed may as well be found to be perverse on account of the trial Court’s wrongful application of the law to correctly ascertain facts…” – Per MOHAMMED BABA IDRIS, J.S.C.

MISCARRIAGE OF JUSTICE – SUBSTANTIAL ERRORS REQUIRED

“It seems to me that not all errors result in miscarriage of justice. There is miscarriage of justice only where there are substantial errors in adjudication. With the resultant effect that the party relying on such errors may likely have a judgment in his favour.” – Per MOHAMMED BABA IDRIS, J.S.C.

DISCRETION OF TRIAL JUDGE – ACCEPTING OR REJECTING TESTIMONY

“The trial Court is also tasked with deciding the case on its merits based on those findings. A trial Judge, in appropriate circumstances, is entitled to accept portions of a witness’s testimony while rejecting others.” – Per MOHAMMED BABA IDRIS, J.S.C.

STYLE OF JUDGMENT WRITING – JUDICIAL DISCRETION

“It is trite that a trial Court is not bound to any particular style of writing a judgment. Each Court has its unique style of judgment writing, provided that the judgment captures the essential ingredients of a good judgment and resolves the issues for determination.” – Per MOHAMMED BABA IDRIS, J.S.C.

WRONGFUL ADMISSION OF EVIDENCE – EFFECT ON VALIDITY OF JUDGMENT

“It has been held that the wrongful admission of inadmissible evidence does not, by itself, constitute grounds for reversal unless it is demonstrated that the decision was substantially based on the inadmissible evidence.” – Per MOHAMMED BABA IDRIS, J.S.C.

SUFFICIENCY OF EVIDENCE FOR RAPE CONVICTION – MULTIPLE SOURCES

“The concurrent findings that the confession in exhibit 8 is direct, positive and credible are valid. In any case, the trial Court did not rely only on the appellant’s confession in convicting him.” – Per EMMANUEL AKOMAYE AGIM, J.S.C.

CASES CITED

STATUTES REFERRED TO

• Constitution of the Federal Republic of Nigeria, 1999 (as amended)

• Administration of Criminal Justice Act, 2015

• Evidence Act, 2011 (formerly Evidence Act, 2004)

• Penal Code Law

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