Appeal No: SC.200/2013


Before Their Lordships:













1. Reply Brief – The role 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 (2408) 6 – 7 SC (Pt.11) p.1. 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 NGWUTA, J.S.C. (Para 36) read in context

2. Formulation of Issues – The importance of proper formulation of issues in an appeal

My Lords, the virtue of good formulation of issues upon which a brief of argument in an appeal is predicated is known and appreciated in the lack of it. 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 NGWUTA, J.S.C. (Para 37) read in context

12. Issues for Determination – What is an issue for determination

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. It is a question of law or fact or both and should not include argument or opinion or fact not yet established. Per NGWUTA, J.S.C. (Para 50) read in context

3. Amendment of Charges – Whether an amendment of  a charge relates back to the time of filing the charges

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 (19 ) 1 KB 295 at 297; Adesunmi v. A-G Ekiti State (2002) 93 LRCN 43 at 64 and 65. Per NGWUTA, J.S.C. (Para 42) read in context

5. Grounds of Appeal — Effect of failure to formulate issues from grounds of appeal

I have carefully scrutinized the 16 issues Appellant formulated from his 31 grounds of appeal in the Court below. None of the 16 issues related, even remotely, to either or both of the Appellant’s grounds 1 and 2 in his notice of appeal to the Court below. The two grounds of appeal from which no issue was formulated are deemed abandoned. See Ogufile v. Odi (1994) 2 SCNJ 1. Per NGWUTA, J.S.C. (Para 43) read in context

6. Nature of an Appeal – The nature of an appeal and whether it includes resolutions of issues not considered by a lower court

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 arrived at a correct decision. See Oredatin v. Arowolo (1989) 4 NWLR (Pt. 114) 172 at page 211. By the above definition of appeal, an appellate Court has no duty or power to deal with an issue or point on which the Court below it did not make a pronouncement. Per NGWUTA, J.S.C. (Para 43) read in context

7. Address of Counsel – Instances the address of the counsel is not a necessity

The exhibits and oral evidence were received by the trial Court. The trial Court did not need address from Counsel to the parties to decide whether or not a piece of evidence and exhibits admitted should be ascribed probative value, nor are Counsel to the parties entitled to be heard in the evaluation of the evidence before the Court. Per NGWUTA, J.S.C. (Para 45) read in context

8. Defence of Alibi – What the defence of alibi entails

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 NGWUTA, J.S.C. (Para 47) read in context

15. Suspicion – Provision of the law on 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 Kan (1969) 3 All ER 1926 at 1630 per Lord Delvin. Per NGWUTA, J.S.C. (Para 54) read in context

19. Attempt to Commit an Offence – Elements that can establish an attempt to commit an offence

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 NLR 109 at 115 per Alexander, CJN. Per NGWUTA, J.S.C. (Para 61) read in context

20. Offence of Murder – The exception of the weapon used in proving murder or attempted murder

In the case of murder, the definition of the offence does not include the weapon with which it is committed. See for instance, Section 316 of the Criminal Code applicable to the Southern part of the country. In neither the case of attempted murder nor murder did the elements constituting the offence include the weapon used in the commission of the offence. In the same way, that the fact of a murder is provable by circumstantial evidence without the body of the deceased or trace thereof and in absence of a confessional statement by the accused, see R v. Sala (1938) 4 NACA 10; P v. Onufrejo 2yk (1955) 1 QB 388: the facts of attempted murder and murder can be proved without the weapon used in the commission of either offence. Per NGWUTA, J.S.C. (Para 61) read in context

9. Burden of Proof – On whom lies the burden of proving the essential ingredients of the defence 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.Once the defence of alibi is raised and the evidential burden discharged, the onus lies on the prosecution to disprove it. Per NGWUTA, J.S.C. (Para 47) read in context

10. Tainted Witness – Who a tainted witness is

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 NGWUTA, J.S.C. (Para 48) read in context

11. Accomplice – When a witness would be held to be an accomplice

For a witness to be an accomplice, except in case of receiving stolen property and in cases showing system, he must have participated in the actual offence charged whether as principal or accessory before or after the fact. It is an issue to be decided in the circumstance of each case. See The Queen v. Ezechi (1982) AMLR 45 (pt.1) 113 at 112-119. Per NGWUTA, J.S.C. (Para 49) read in context

14. Evaluation of Evidence – Power of the trial Court and an appellate Court in the evaluation of evidence

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. Ukoka (1978) 4 SC 77 at 86; Abusamwan v. Merchantile Bank (Nig) Ltd (No. 2) (1987) 3 WLR (Pt.60) 20. Per NGWUTA, J.S.C. (Para 51) read in context

17. Dying Declaration – What a dying declaration is

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 (1950) NMLR 153. Per NGWUTA, J.S.C. (Para 57) read in context

18. Dying Declaration – Position of the law on instances a dying declaration can be admissible

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 End 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 transaction. 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 NGWUTA, J.S.C. (para 57) read in context

21. Duty of Court – The duty of the court to restrict itself in awarding probative value to the evidence of a tainted witness

In my humble understanding, a tainted witnesses is one who has a purpose to serve and even though when faced with the evidence of such a witness, the Court has a duty as a matter of caution or prudence to warn itself as to how far it can go in awarding probative value to such evidence. Per PETER-ODILI, J.S.C. (Para 15) read in context

22. Witnesses – How the evidence given by a witness that is the accused’s enemy doesn’t render the evidence unreliable

Also needing be said is that where the evidence of a witness is unassailable, the fact that the witness is the Appellant’s mortal or lifelong enemy would not render her evidence unreliable. See Mbenu v. State (1988) 2 NWLR (Pt.84) 615; Q v. Ukut (1960) 5 FSC 183; Oteki v. A.G. Bendel State (1986) 2 NWLR (Pt.24) 648; Udo v. Eshiet (1994) 8 NWLR (Pt.363) 483 at 502. Per PETER-ODILI, J.S.C. (Para 15) read in context

13. Duty of Court – The proper duty of a court in relation to admissibility of exhibits where the genuineness of the exhibits are in issue

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 NGWUTA, J.S.C. (Para 50) read in context

16. Writing of Judgment – Mode of judgment writing

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. Also, whether the Appellant’s case or the prosecution’s case was considered first will not affect the trial Court’s resolution of the issues in contention between the parties. Usually, it is the prosecution’s case that is considered before that of the defence but even if the defence case is considered first, it will not necessarily improve his case or diminish the prosecution’s case . If the Court considered the prosecution’s case and made up its mind that the Appellant committed the offence, it would have been unnecessary waste of time for the Court to consider the evidence on the Appellant’s side. Per NGWUTA, J.S.C. (Para 56) read in context

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