25 January 2013

Nigeria: 'Supreme Court Won't Tamper With Concurrent Findings of Lower Courts Unless ...'

In the Supreme Court of Nigeria holden at Abuja on Friday, December 14, 2012 before their lordships: Ibrahim Muhammad, JSC; John Fabiyi, JSC; Mary Peter-Odili, JSC; Olukayode Ariwoola , JSC; and Kumai Aka'ahs, JSC.




James Chiokwe



The State

Furthermore, the Appellant in the course of the investigation took PW7 to the scene of crime where he kept the dead body after having sex with the victim and killing her. In none of the transactions is the need for a search warrant at play. Therefore, the assertion for the search warrant flies off the handle.

So held by a Justice of Supreme Court (JSC), Justice Mary Peter-Odili in a lead judgment he delivered with his learned brothers: Ibrahim Muhammad, JSC; John Fabiyi, JSC; Olukayode Ariwoola and JSC; Kumai Aka'ahs, JSC, concurring in dismissing the appeal.

This is an appeal against the Judgment of the Court of Appeal delivered on the November 16, 2004 upholding the conviction and sentence passed on the Appellant for the offence of murder contrary to Section 316 (1) and punishable under Section 319 (1) of the Criminal Code, Cap 30 Vol.2, Laws of Eastern Nigeria, 1963.

The fact of the case is that the Appellant was tried in the High Court of Enugu State in the Enugu Judicial Division holden at Enugu for the offence of murder contrary to Section 316 (1) and punishable under Section 319 (1) of the Criminal Code Law, Cap.30, Volume 2, Laws of Eastern Nigeria, 1963. From the particulars of offence, the Appellant was alleged to have raped one Dorothy Ibekwe, a 15- year- old secondary school girl and murdered her on March 5, 1983 at Ugbo Edem Nike in the Enugu Judicial Division.

On July 3, 1984, the charge was read and explained and the Appellant pleaded 'not guilty'. The prosecution called eight witnesses and the Appellant alone testified and called no witness. The trial court presided over by B. O. Okadigbo J. delivered its judgment on March 5, 1985 and convicted the Appellant for murder and sentenced him to death.

Dissatisfied with the judgment of the court of first instance, the Appellant filed an appeal on March 13, 1985 at the Enugu Division of the Court of Appeal. The appellate court heard the appeal and dismissed it on the November 16, 2004 and affirmed the decision of the trial High Court.

The Appellant again dissatisfied, appealed to this court by leave of this court since the appeal was out of time.


Whether the learned Justices of the Court of Appeal were right in relying on the alleged confessional statements credited to the Appellant tendered and admitted at the trial court as Exhibits B and D in upholding the judgment of the trial court which convicted and sentenced the Appellant to death for murder.

The confessional statements, Exhibits "8" and "D" are in my view sufficient to ground a conviction, considering the finding in the course of trial- within-trial in the case of Exhibit 8 and later D which cleared some grey areas in the earlier statement are both sufficient in themselves to found a conviction without any other extraneous evidence in corroboration. See Edet Obasi v. The State (1965) NMLR 119; Rv Kanu 14 WACA 30.

The attempt by the Appellant at this stage and even at the court below to impugn the voluntariness of the statements and thereby have them scuttled is in the light of the circumstances of this case a day dream or perhaps a "wishful thinking" as a possible escape to what is so weighty, true and the admission of the act of an accused well considered and evaluated by the trial court which the Court of Appeal did not have any reason to interfere with and that rightly so since this court cannot and is not persuaded to either interfere with or obstruct. The question is resolved against the Appellant and is a positive answer on what the Court of Appeal did.

There was no necessity of a search warrant since the Appellant not only took him to his (accused's) house and room and showed him where he kept the matchet. Also took PW7 to the house of the deceased showing him the broken window which the Appellant said he broke in the quest to get at the deceased for sex a day before the incident leading to the death of the deceased.

Another point, necessary to be commented upon is that there has been nothing put forward by the Appellant upon which can be founded a doubt, be it inconsequential or minute that the weapon, the matchet did not belong to the Appellant. What learned counsel for the Appellant did was just to put up a submission of such a doubt which did not flow from the evidence before the trial court. It needs be reiterated that submissions of counsel however beautiful or enticing cannot take the place of evidence.

This is because address of counsel to be accepted and utilise must be a reminder to court on evidence proffered. On its own, address of counsel cannot stand.

Also to be said is that just as the trial court found and upheld by the Court of Appeal the fact that the murder instrument was consistent with the wounds suffered by the deceased as described by the PW1, Dr. Anthony Okafor who carried out the post mortem.

The Appellant's counsel asking for finger prints of the Appellant on the weapon before it can be accepted or that no forensic examination thereof before the weapon can be taken as the instrument of death, is an elegant argument which is bereft of other factors that could demolish such an argument like the cogent, compelling and direct circumstances which lead to no other explanation than that Exhibit "C" is the instrument deployed in taking the life of the deceased and an act effected by the Appellant.

Section 139 of the Evidence Act, Cap 112 Laws of the Federation of Nigeria has provided the court the mandate to accept the proof of death by circumstantial evidence. This being so since in criminal cases the high possibility of not been availed an eye witness account is not rare.

Therefore, when the court can infer from the circumstances available and established other facts which point to no other hypothesis or reasoning than the guilt of the accused then absence of forensic blood test of the deceased on the instrument or the fingerprint of the Accused/Appellant as in this case on that weapon becomes moot.

I see no difficulty in accepting the submission of Mr. Elema for the Respondent that the allegation of the commission of the heinous crime of murder by the Appellant in the brutal rape and murder of the deceased, Dorothy Ibekwe has been found as proven beyond reasonable doubt by the Enugu High Court and been placed before this court whereby it can disturb or upset these concurrent findings of the two Courts below.

It is without saying that this issue is resolved against the Appellant. The two issues having been resolved against the Appellant, I have no hesitation in saying that this appeal lacks merit and I hereby dismiss it. I affirm the decision of the Court of Appeal which affirmed the judgment, conviction and sentence of death by hanging of the trial High Court.

Lawyers: C.I Nweluzor for the Appellant.

S.E Elema for the Respondent.

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