UDOR v. THE STATE (2014)

In The Supreme Court of Nigeria

On Friday, the 13th day of June, 2014

SC.158/2012

Before Their Lordships

MAHMUD MOHAMMED Justice of The Supreme Court of Nigeria

JOHN AFOLABI FABIYI Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria


Between

SUNDAY UDOR –Appellant

AND

THE STATE- Respondent

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MAHMUD MOHAMMED, J.S.C. (Delivering the Leading Judgment): This appeal is against the judgment of the Court of Appeal, Ekiti Division delivered on 25th March, 2011, affirming the conviction and sentences passed on the Appellant and his co-accused persons for the offences of conspiracy, murder and attempted murder of one Mayowa Adeleye and attempted murder of one Falade Ojo by the High Court of Justice of Ekiti State sitting at Ikole.

The case of the prosecution was that on 29th November, 1998, the deceased Mayowa Adeleye was sent by his mother, PW1, to deliver food to his father, who worked as a guard at Fiyintolu Odundun Comprehensive High School, Oke-Ayedun-Ekiti and on coming back home, to bring three-leaves yams from their family farm. The Appellant who was a tenant in the house of PW1, was present when the deceased was being sent on the errand to his father and the farm of the family.

However, the deceased boy Mayowa Adeleye never returned home and as a result of that a search party was organized in the town on the alarm raised by the parents of the deceased. In the course of the search, PW2, Falade Ojo was confronted in the bush at night by the late Sunday Jedege, who was charged along with the Appellant and three others for the offence for which the Appellant was convicted. The Appellant and his group prevented PW2 from searching the building where they were found and attacked PW2 who managed to escape from the building used by the Appellant and his group unhurt. On reporting this incident to the Oba of the town, the Oba ordered the search for the missing boy, and also ordered the immediate arrest of the Appellant and the other persons found with him.

The following day, the headless body of the deceased boy Mayowa Adeleye was eventually discovered in the bush near the house of the late Sunday Jegede who together with Appellant had attacked PW2 the previous night and prevented him from searching the house where they were found. The corpse of the deceased was partly covered by curtains belonging to the late Sunday Jegede. At the trial Court, the prosecution called 6 witnesses while the Appellant gave evidence in his defence but called no other witness. At the end of the trial, the learned Judge after very carefully considering the evidence before him, found the Appellant and 2 other accused persons tried along with him, guilty of the offences of conspiracy, murder and attempted murder. Part of the judgment at the page 139 of the record reads –
All in all, I have made the following findings:
(a) That the accused persons are guilty of the offence of conspiracy as charged.
(b) That the circumstantial evidence adduced by the prosecution points to only one irresistible direction and that is, that the accused persons found and arrested in the bush on 29th November, 1998 and who attempted to murder PW2, were the same persons who by their acts, murdered the deceased.
(c) That by attacking PW2 on 29th November, 1998, all the accused persons together are guilty of the offence of attempted murder as charged.”

Consequent upon the findings of the trial Court, the Appellant was sentenced to death for offence of murder while the conviction for the offence of attempted murder, earned him life imprisonment. The Appellant’s appeal against his conviction and sentences was heard by the Court of Appeal Ekiti Division and in unanimous judgment delivered on 25th March, 2011, that appeal was dismissed. Still aggrieved with the decision of the Court of Appeal, the Appellant has further appealed to this Court by his Notice of Appeal containing 4 grounds of appeal from which his learned Counsel distilled 2 issues in the Appellant’s brief of argument, for the determination of the appeal. The 2 issues which were also adopted by the Respondent in the Respondent’s brief of argument are –
1. Whether the learned trial Judge was right in holding that the prosecution proved its case against the Appellant, when the identity of the deceased for whose death the Appellant was charged was never established at the trial.
2. Whether the learned trial Judge was right in holding that the prosecution proved a case of murder and attempted murder against the Appellant beyond reasonable doubt and whether the Court of Appeal was right in upholding that decision.”

Starting with the first issue for determination, it is quite plain that the issue is not complaining against the decision of the Court of Appeal or any part of the judgment of that Court which is now on appeal before this Court. The issue also does not complain against the conduct of the Justices of the Court below in their decision dismissing the Appellants’ appeal. Rather, the issue is only complaining of the conduct of the learned trial Judge in his judgment finding the Appellant guilty of murder of the deceased in the absence of evidence properly identifying the corpse as that of the deceased, the subject of the charge of murder against the Appellant. This issue can only be properly raised at the Court of Appeal for resolution as the Appellant had already done at page 240 of the record of appeal. The issue having been properly raised and appropriately determined by the Court of Appeal against the Appellant, that issue cannot be raised again before this Court, the jurisdiction of which under Section 233 of the Constitution of the Federal Republic of Nigeria, 1999, is to hear appeals from the decisions of the Court of Appeal. In other words, the Court has no jurisdiction to entertain any issue in an appeal complaining of the decision of the trial High Court. See Francis Nwanezie v. Nuhu Idris and Another (1993) 3 N.W.L.R. (Pt. 297) 1 at 12 where Karibi-Whyte, JSC, in the lead judgment of this Court faced with similar situation with the 1st issue for determination in that case stated the law thus –
The determination of 1st Respondent’s first issue is outside the jurisdiction of this Court. This Court can only exercise jurisdiction in respect of decisions of the Court of Appeal. The first issue is questioning the correctness of the judgment of the High Court. The ground of appeal filed is concerned with the error of the Court below. The formulation of the first issue, therefore did not arise from the grounds of appeal filed.”
This observation is exactly what happened in the present case where the first ground of appeal in the Appellant’s Amended Notice of Appeal, complained of the errors of the learned Justices of the Court of Appeal in their judgment now on appeal but the learned Appellant’s Counsel in framing the first issue for determination of the appeal, turned his complaint against the judgment of the trial Court over which this Court does not have jurisdiction. See also the cases of Harriman

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v. Harriman (1987) 3 NWLR (Pt. 60) 244 at 257 and Ibori v. Agbi (2004) 6 N.W.L.R. (Pt. 868) 78 at 142 – 143. Consequently, the 1st issue raised for determination in this appeal being incompetent, is accordingly hereby struck-out.

The remaining 2nd issue for determination is whether the Court of Appeal was right in upholding the judgment of the trial Court finding that the prosecution had proved its case against the Appellant for the offences of murder and attempted murder beyond reasonable doubt. The contention of the Appellant in this issue is that the prosecution did not prove any ingredients of the offences of conspiracy, murder and attempted murder against the Appellant beyond reasonable doubt as required by law. It was argued for the Appellant by his learned Counsel that the evidence adduced by the prosecution at the trial Court, was riddled with fatal inconsistencies and contradictions to the extent of making the conviction of the Appellant founded on mere suspicion, thereby justifying the appeal being allowed.

For the Respondent however, it was argued by its learned Counsel that the prosecution had adduced sufficient direct and circumstantial evidence to prove the offences for which the Appellant was charged and convicted.

The law is indeed trite that suspicion, no matter how strong it is, cannot take the place of legal proof. Items of evidence raising suspicion, which put together, do not have the quality of being corroborative evidence to ground any conviction for a criminal offence. See the State v. Ogbubunjo (2001) 2 N.W.L.R. (Pt. 698) 576. However, in the present case, the evidence put in place by the prosecution against the Appellant in support of the offences the Appellant was charged and convicted, was far beyond the level of suspicion. There was direct and circumstantial evidence beyond reasonable doubt, properly appraised and relied upon by the trial Court in finding the Appellant guilty of the offences of murder and attempted murder in particular. See Ogba v. The State (1992) 2 N.W.L.R. (Pt.222) 164 and Ozuloke v. The State (1965) N.M.L.R. 125 at 126. The law is also well settled that the prosecution may prove the guilt of an accused person by the confessional statement of that accused person, by circumstantial evidence or by the evidence of eye witnesses of the crime. It has to be emphasized that the prosecution does not always need an eye witness account to succeed in proving the case of murder against the accused, if the charge can otherwise by proved. See Igabele v. The State (2006) 6 N.W.L.R. (Pt. 975) 100.

I am not unaware that circumstantial evidence is sufficient to ground conviction for a criminal offence only where the inferences drawn from the whole history or facts of the case, are such that they point strongly irresistibly to the commission of the offence by the accused to the exclusion of all other persons. See Nwaeze v. The State (1996) 2 N.W.L.R. (Pt. 428) 1 and Akinmoju v. The State (2000) 4 S.C. (Part 1) 64. In the instant case, apart from the fact that the circumstantial evidence on record points to no other person than the Appellant and his co-accused persons as having caused the death of the deceased Mayowa Adeleye whose corpse was found wrapped in curtain cloth of the house of the Appellant’s co-accused late Sunday Jegede, there is also the direct evidence of PW2, the victim of the vicious attack by the Appellant and his group which clearly supported the Appellant’s conviction for the offence of attempted murder. No wonder, the dismissal of the Appellant’s appeal, who was convicted along with the present Appellant for the same offences at the trial Court, affirmed by the Court below and further affirmed by this Court in the case of Olanrewaju Ayan v. The State (2013) 15 N.W.L.R. (Pt.1376) 34, had finally seated any hope of the Appellant in expecting any success in this appeal. In any case, there being no complaint that the concurrent findings of the High Court and the Court of Appeal in the instant appeal are perverse or not supported by evidence, I see no reason at all to disturb the concurrent findings. See Sobakin v. The State (1981) 5 S.C. 75 and Onogwu v. The State (1993) 6 N.W.L.R. (Pt. 401) 276 at 296.

In the final result, I find this appeal devoid of merit and therefore deserves nothing other than outright dismissal. The appeal is accordingly hereby dismissed and the judgment of the Court below delivered on 25th March, 2011, affirming the conviction and sentences of death and life imprisonment imposed on the Appellant by the trial High Court of Ekiti State, for the offences of murder and attempted murder respectively, are hereby further affirmed.

JOHN AFOLABI FABIYI, J.S.C.: I have had the benefit of reading before now the judgment of my learned brother – Mahmud Mohammed, JSC. I agree with the reasons therein contained as well as the conclusion that the appeal lacks merit and should be dismissed.

At the trial High Court, the appellant was charged along with three others for the offences of conspiracy to murder, murder of Mayowa Adeleye and attempted murder of one Falade Ojo – P.W.2. The learned trial judge relied mainly on the evidence of P.W.2 and circumstantial evidence to nail the appellant and his cohorts. The appellant appealed to the Court of Appeal which considered same and dismissed it. This is a further appeal to this court.

In this court, the two issues decoded for determination of the appeal by the appellant read as follows:
l. Whether the learned trial judge was right in holding that the prosecution proved it case when the identity of the deceased for whose death the appellant was charged was never established at the trial.
2. Whether the learned trial judge was right in holding that the prosecution proved a case of murder and attempted murder against the appellant beyond reasonable doubt and whether the Court of Appeal was right in upholding that decision.

With respect to issue 1, my learned brother in the lead judgment pungently found that this court has no jurisdiction to entertain an appeal against the decision of the trial court as subsumed in appellant’s issue 1. Since the issue is out of tune with reality, it is hereby struck out.

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As extant in the record, it is clear that the trial court relied mainly on the evidence of P.W.2 as well as circumstantial evidence to nail the appellant and his cohorts. P.W.2 testified on oath that the appellant was part of a group of four that attacked him in the night at Igbo-Oro on 29th November, 1998 while searching for deceased Mayowa Adeleye whose headless body was found nearby the next morning. The trial judge rightly evaluated his evidence and believed it. The court below confirmed same.

It is basic that a court can convict on a clear and credible evidence of a single witness. Such evidence may not require any corroboration. See: Afolalu v. The State (2010) 16 NWLR (Pt. 1220) 584 at 613.

The two lower courts made concurrent findings of fact which are not perverse. I have no cause to impugn and interfere with same. This position was taken in the sister case of Olanrewaju Ayan v. The State (2013) 15 NWLR (Pt. 1376) 34. No reason has been adduced why I should not follow the stance therein.

For the above reasons and the fuller ones adumbrated in the lead judgment, I too feel that the appeal lacks merit. It dismissed as the judgment of the court below is affirmed.

MARY UKAEGO PETER-ODILI, J.S.C.: I am in total agreement with the judgment and reasoning just delivered by my learned brother, Mahmud Mohammed, JSC and to underscore my support I shall make some comments.

This is an appeal from the judgment of the Court of Appeal Ekiti Division delivered on the 25th day of March, 2011, unanimously affirming the judgment of the Ikole High Court, Coram Hon. Justice D. O. Jegede on 25th October, 2006 convicting and sentencing the appellant to death and life imprisonment for murder and attempted murder respectively.

FACTS BRIEFLY STATED
The appellant was arraigned with three other accused persons, Sunday Jegede, Oluwatoyin Anokoluanro and Olarenwaju Ayan before the trial High Court on the 11th day of July, 2001 on a three count information of conspiracy to murder, murder of one Mayowa Adeleye and the attempted murder of one Falade Ojo. The appellant and his co-accused pleaded “Not Guilty” but before the commencement of hearing, one of them, Sunday Jegede, the then 1st accused died and the appellant became the 2nd accused throughout the trial.

The case of the prosecution was that in the afternoon of 29th day of November, 1998, the deceased victim, Mayowa Adeleye was sent by his mother, PW1, Alice Adeleye to deliver food to his father, who worked as a guard at Fiyinfolu Odundun Comprehensive High School, Oke- Ayedun-Ekiti and thereafter bring back three leave yams from their farm. The appellant, who was a tenant in the house of PW1, was present when PW1 was sending late Mayowa Adeleye on the errand to his father and their farm. However, the deceased, Mayowa Adeleye never returned home as expected, which brought about his parents who raised alarm which resulted in a search party being organized by the town on the order of the king.

Falade Ojo who testified as PW2 was a member of one of the search parties looking for the missing boy and in the course of the search that night he was accosted in the bush by the late Sunday Jegede and three others including the appellant. PW2 stated that during the encounter with the appellant and his cohorts who prevented him from searching the building where they were found but the appellant and others attempted to slay him but in the ensuring struggle he escaped from the scene. PW2 reported the incident to the King without delay and the King in turn directed the apprehension of the appellant and the others.

The headless corpse of Mayowa Adeleye was eventually found in the bush the following morning, near the house of the late Sunday Jegede and partly covered by curtains belonging to the said Sunday Jegede.

The prosecution called six witnesses in all and the appellant gave evidence in his defence but called no witness. He denied committing the offences. The trial court in a considered judgment found the case against the appellant and co-accused proved beyond reasonable doubt by direct and circumstantial evidence and proceeded to convict and sentence them accordingly.

The appellant dissatisfied with the decision of the trial court appealed to the Court of Appeal which dismissed the appeal and again dissatisfied appellant has come before the Supreme Court on appeal.

In accordance with the Rules of Court, the learned counsel on either side exchanged their Briefs and the matter set down for hearing for the 20th day of March, 2014 on which date, Mr. Olakunle Agbebi adopted the Brief of the Appellant he had settled and filed on 14/11/13. In the Brief learned counsel for the appellant, identified two issues for determination, viz:
1. Whether the learned trial judge was right in holding that the prosecution proved its case against the appellant when the identity of the deceased for whose death the appellant was charged was never established at the trial
2. Whether the learned trial judge was right in holding that the prosecution proved a case of murder and attempted murder against the appellant beyond reasonable doubt and whether the Court of Appeal was right in upholding that decision.

Learned counsel for the respondent, Mr. Olawale Fapohunda adopted the Brief of Argument he settled and filed on the 10th

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day of December, 2013. He also adopted the issues as formulated by the appellant.

To clear the air, Issue one distilled from grounds 1 and 5 which are incompetent contesting the judgment of the trial court instead of that of the Court of Appeal. That being so, the Issue is struck out for incompetence and the only competent issue being Issue 2 would be considered as a sole issue.

SINGLE ISSUE
Whether the learned trial Judge was right in holding that the prosecution proved a case of murder and attempted murder against the appellant beyond reasonable doubt and whether the Court of Appeal was right in upholding that decision.

This issue flowing from grounds 1, 3, 4 and 5 of the Grounds of Appeal being tackled by learned counsel for the appellant contended that the entirety of the evidence is circumstantial and to succeed the prosecution must produce evidence which point only in the direction of the appellant’s guilt in a manner that obviates any other possibilities. He stated that the prosecution failed to identify the headless body as that of the missing boy beyond so the prosecution failed to prove that the person whom the appellant was accused of murdering actually died. Also that there was no evidence pointing to any act, positive and direct or circumstantial or indirect, by the appellant which led to the death of the deceased. He cited Nwaeze v. State (1996) 2 NWLR (Pt. 424) 1 at 11; Kalu v. State (1993) 3 NWLR (Pt. 297) 20 at 32; Ajose v. State (2002) 7 NWLR (Pt. 766) 302; Bozin v. State (1985) 8 NWLR (Pt. 8) 465.

For the appellant was contended that the prosecution’s case in the charge of murder was predicated on the evidence of PW1-PW6, the photographs of the headless body and the statement of the appellant and the co-accused and in the charge of attempted murder it was based only on the evidence of PW2. That none of these witnesses gave any evidence of any other act or omission of the appellant that could be said to lead unequivocally to the conclusion that he killed or participated in the killing of the deceased. That there is no corroboration of the evidence of PW2 on the charge of attempted murder as the weapon allegedly used was never tendered and no explanation given for the failure to produce the weapon at the trial court.

Mr. Agbebi of counsel stated further that the evidence of PW1 on the murder charge was not beyond suspicion while PW2’s evidence was full of hearsay, contradiction and fantasy not sufficient to either ground a conviction for murder or attempted murder. He cited C &C Construction Co Ltd v. Okhai (2003) 19 NWLR (Pt. 851) 79 at 100.

He said the testimony of PW2 contradicted sharply with the evidence of PW3 on those who attacked PW2 with a sword and on the arrest of appellant and other co-accused.

Learned counsel for the appellant submitted that PW4 was in a better position to commit the offence of murder. That the evidence of PW5 and PW6 were not helpful to the prosecution. He cited Akpan v. State (1994) 8 NWLR (Pt. 361) 226; Amadi v. State (1993) 8 NWLR (Pt. 314) 644.

For the respondent, Mr. Fapohunda contended that the respondent adduced sufficient direct and circumstantial evidence to prove the alleged offences against the appellant. That the trial judge painstakingly evaluated the evidence of PW1 to PW6 called by the prosecution and came to the conclusion that the evidence discharged the onus on the prosecution to prove the alleged crimes of murder beyond reasonable doubt. He relied on Ogba v. State (1992) 2 NWLR (Pt. 22) 16; Ozuloke v. State (1965) NMLR 125 at 126.

He stated on that it is trite law that a crime could be established by all or any of three ways or methods namely:
1. By direct evidence of an eye witness
2. By circumstantial evidence
3. By confessional statement

That the lower court evaluated the evidence of the prosecution’s witnesses and testimony of the appellant in his defence and believed the evidence of the prosecution’s witnesses linking the appellant with the crimes. He said it is trite law that this court will not ordinarily interfere with the concurrent findings of a trial court and an appellate court except such findings are perverse in law. He cited Emeka v. State (2002) 14 NWLR (Pt. 734) 666 at 683; Onogwu v. State (1993) 6 NWLR (Pt. 401) 276 at 552; Sobakin v. State (1981) 5 SC 75. That the sister case to the present appeal is SC.192/2011: Olarewaju Ayan v. State (unreported) filed by the 3rd accused, Olarewaju Ayan.

For the respondent was also submitted that the tendering of a weapon allegedly used in perpetrating a crime is not a sine qua non to proving the guilt of the accused, where credible evidence abound, linking him with the crime in issue. That PW2 testified on the attack on him and that appellant had a sword which he snatched and was not cross-examined on this point and the trial judge rightly evaluated the piece of evidence and believed it. Learned counsel said the court can convict on the clear and unimpeachable evidence of a single witness and such evidence does not require any corroboration. He referred to Tanko v. State (2008) 16 NWLR (Pt. 1114) 537 at 641; Onyegbu v. State (1998) 1 ACLR 386 at 393; Afolalu v. State (2010) 16 NWLR (Pt. 1220) 584 at 613.

The posture as put up by the appellant is that the prosecution had failed to prove its case against the appellant beyond

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reasonable doubt and to resolve the doubt created by the contradictions in evidence and the failure of the prosecution to tender vital exhibits such as the sword allegedly used in the purported attack on PW2 in favour of the appellant. Also that there was failure to prove by credible evidence the involvement of the appellant in this case which is fatal to the charges of murder, attempted murder and conspiracy.

On the part of the respondent is that the case of conspiracy, murder and attempted murder against the appellant has been properly and adequately proved by credible, direct and circumstantial evidence and beyond reasonable doubt. That the trial court properly evaluated the evidence and rightly convicted and sentenced the appellant as charged.

The ingredients of the offence of murder are well stated in the case of Nwaeze v. State (1996) 2 NWLR (Pt. 428) 1 at 11 per Adio, JSC wherein he held thus:
In a charge of murder, the burden is on the prosecution to prove that:
(a) The deceased had died;
(b) The death of the deceased was caused by the accused, and
(c) The act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence
.”

The evidence on ground is mainly circumstantial and in such a situation, the surrounding circumstances have to be examined together for the inference to be arrived at that the accused/appellant committed the offences charged. For that conclusion to be arrived in the existence of evidence that is circumstantial, it is now trite that once such evidence if found to be positive, compelling and with mathematical precision which point to the guilt of an accused, the prosecution had discharged the onus of proof on it in proof of its case.

The law is that when the body of the deceased was not found or as in the case in hand, the head was missing the accused/appellant can still be convicted on the basis of the surrounding circumstances. In the prevailing situation, shouting for corroboration as learned counsel for the appellant is insisting goes to no issue since the evidence of a single witness strong enough to sustain a charge is sufficient even for murder or attempted murder as in this case. This brings to the front burner the evidence of PW2 which has been shown through evaluation by the trial court and sustained by the court below to fix the appellant/accused right at the centre of the crimes, murder and attempted murder. See Udedibia v State (1976) 11 SC 173 at 138 – 139; Emine v. State;Okoro v. State (1998) 14 NWLR (Pt. 58) 181 at 216.

At this point it seems to me necessary to quote what the Court of Appeal did per Uwa, JCA at pages 259 – 261 of the Record and it is as stated hereunder, viz:
“From the evidence of the PW2 before the trial court, the appellant (2nd accused) one of the group of four people that the PW2 encountered in the bush was present when the 1st accused brought out the sword which the PW2 snatched and ran away. It was argued that there was no proof that the appellant was one of those who murdered Mayowa Adeleye, the scene where the PW2 was attacked and where the deceased’s body was found covered with the window blind of one of the four persons (Sunday Jegede) were close, the sword with the 1st accused, the lack of explanation of the presence of the appellant and the other three persons in the bush at night has not been explained. The body of the deceased when found in the bush had the head severed; such severance could only be caused by a sharp object like the sword. A body with the head severed cannot be expected to remain alive. The beheading obviously caused the death of the deceased. A medical report is not required in this case to ascertain the cause of death. The learned trial court was in my humble opinion right to hold that inference that could be drawn from these facts is the guilt of the appellant, that he was one of the killers of the deceased, Mayowa Adeleye.
The appellant as DW2, at pages 86 – 87 of the printed records denied knowing PW2 (Falade Ojo) who he was charged to have attempted to murder. Even though he admitted knowing the parents of the deceased Mayowa Adeleye, he said he was not present when he was sent to the farm by his mother and did not know the farm he was sent to. The appellant denied being part of the attempted murder of PW2 and the murder of the deceased Mayowa Adeleye. But, the evidence of the PW2 was that the appellant was present when he was accosted in the bush on the night of 29/11/98, when as part of the search team they were searching for the body of the deceased.
The headless body when found was covered with a cloth of the same design as the window blind of Sunday Jegede who was in the bush in the night of the incident with the other three persons including the appellant, hiding in an uncompleted building and were called out one after the other when PW2 encountered Sunday Jegede in an attempt to search the uncompleted building and the surroundings, close to Sunday Jegede’s house. One of them (DW1 – 1st accused) armed with a sword.
All these point irresistibly to nothing else than that the appellant murdered or was one of those that murdered the deceased Mayowa Adeleye. The appellant’s presence was fixed at the scene of the attempted murder, and was one of those called out from their hiding by Sunday Jegede that night on sighting the PW2, and was present when the DW1 (1st accused) brought his sword to attack PW2 before he snatched it and ran away.
I am in total agreement with the learned trial judge that the presence of the appellant and the others the night of the incident in the bush could not be explained and that it could only have been for evil and disagree with the learned counsel’s argument that such view was like asking the appellant to prove his innocence. The involvement of the appellant that night can be inferred from the surrounding circumstances, since there was no eye witness to the murder for which the appellant was charged, all the evidence was circumstantial with the attempted murder only the evidence of the PW2.”

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A reference to the sister case of the one under consideration would assist since it emanated from the same facts and the same incident which is a judgment of this court in Ayan v. State (2013) 15 NWLR page 34 per I. T. Muhammad JSC at 54 – 55 held as follows:
It appears from the record that the court below is satisfied with the exercise carried out by the trial court that was why it affirmed the trial court’s decision.
The trial court went ahead to find the three accused persons, including the appellant guilty of the offences charged, convicted and sentenced each of them to the various sentences they are to serve. Can anyone do any better than did the trial court? Is it not the trial court that saw, heard and assessed the demeanour of the witnesses? That of course is the primary role of any reasonable trial court.
It will not serve any useful purpose for this court to review the evidence placed as learned counsel for the appellant would want this court to do. The court below did the same and it arrived at same conclusion with the trial court. I am not convinced that there is any of the factors such as perversity of the trial court decision or that a miscarriage has been caused to the appellant which can make this court re-visit the evidence placed before the trial court.”

The appellant further used a line of attack, impugning the evidence adduced by the respondent at the trial as riddled by fatal inconsistencies and contradictions and founded on mere suspicion. The assertion of the appellant is not sustainable in the light of the testimony of PW2, an eye witness account of the attempted murder attack by the appellant and his band of like minds. Also of note is that the circumstantial evidence adduced are direct, positive leading to an irresistible conclusion as found by the two courts below of the culpability of the appellant and his colleagues. Of note is the thorough evaluation of the evidence as proffered by the prosecution witnesses which the watery defences could not water down or demolish, a situation accepted and properly stamped with approval by this Court in Olarewaju Ayan v. State (supra) an appeal filed by the 3rd accused when this court unanimously going along the concurrent findings of the two courts below dismissed the appeal. There is nothing new that has been pushed forward by the appellant upon which this court would go in the opposite direction or seek to interfere with those same concurrent findings or depart from what this court did in the Olarewaju Ayan v. State (supra). I place reliance on Ogba v. State (1992) 2 NWLR (Pt. 22) 16;
Ozuloke v. State (1965) NMLR 125 at 126;
Emeka v. State (2002) 14 NWLR (Pt. 734) 666 at 683;
Onogwu v. State (1993) 6 NWLR (Pt. 401) 276 at 552.

From the foregoing and the better reasoned lead judgment of my learned brother, I too see the unmeritorious appeal have no hesitation in dismissing the appeal.
Appeal dismissed as I abide by the consequential orders made.

MUSA DATTIJO MUHAMMAD, J.S.C.: My learned brother Mahmud Mohammed JSC has meticulously dealt with all the issues in the appeal. I rely on his lordship’s reasoning in the lead judgment in dismissing the manifestly unmeritorious appeal and further affirming the decision of the Ekiti State High Court.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the benefit of reading in draft the judgment of my learned brother, MAHMUD MOHAMMED, JSC just delivered. I agree entirely with the reasoning and conclusion that the appeal lacks merit and ought to be dismissed. My brief comments are in support of the lead judgment.

The two issues formulated for the determination of this appeal by the appellant are as follows:
1. Whether the learned trial Judge was right in holding that the prosecution proved its case when the identity of the deceased for whose death the appellant was charged was never established at the trial?
2. Whether the learned trial Judge was right in holding that the prosecution proved a case of murder and attempted murder against the appellant beyond reasonable doubt and whether the Court of Appeal was right in upholding that decision?

With regard to Issue 1, it is instructive to note that the appellant raised this issue before the court below. At pages 254 – 257 of the record, the lower court in its judgment held that the issue of the identity of the corpse was a new issue being raised for the first time before it without leave. The court also held that the issue did not arise from the judgment appealed against. Grounds 1 & 5 of the Amended Notice of Appeal and Issue 1 formulated thereon were accordingly struck out. There is no appeal against this pronouncement. I agree with my learned brother in the lead judgment that Issue 1 in the present appeal does not arise from the judgment appealed against. This court has no jurisdiction to entertain an appeal against the decision of a trial court. The issue must be and is hereby struck out.

With regard to issue 2, the evidence relied upon by the prosecution was mainly circumstantial. For circumstantial evidence to ground a conviction it must be conclusive enough to lead to the irresistible conclusion that the accused person and no one else is guilty. See: Ikomi Vs The State (1986) 5 SC 313 at 359; Igboji Abieke Vs The State (1975) 9 – 11 SC 97 at 104. The circumstantial evidence in this case pointed irresistibly and conclusively to the appellant’s involvement in the commission of the offences with which he was charged. The lower court after painstakingly analyzing the circumstantial evidence concluded thus at pages 261 – 262 of the record:
All these point irresistibly to nothing else than that the appellant murdered or was one of those that murdered the deceased Mayowa Adeleye. The appellant’s presence was fixed at the scene of the attempted murder, and was one of those called out from their hiding by Sunday Jegede that night on sighting the PW2, and was present when the DW1 (1st accused)

…………………….G…………………….

brought his sword to attack PW2 before he snatched it and ran away.
I am in total agreement with the learned trial Judge that the presence of the Appellant and the others the night of the incident in the bush could not be explained and that it could only have been for evil and disagree with the learned counsel’s argument that such view was like asking the Appellant to prove his innocence. The involvement of the Appellant that night can be inferred from the surrounding circumstances, since there was no eye witness to the murder for which the appellant was charged, all the evidence was circumstantial with the attempted murder, only the evidence of the PW2. The law is trite concerning circumstantial evidence, that once the evidence is found to be positive, compelling and with mathematical precision points to the guilt of the accused, the prosecution would succeed in proof of its case as is the case here. All the surrounding circumstances must be examined together for a logical inference that the accused now appellant committed the offences charged. The prosecution has proved that he did.”

It was contended on behalf of the appellant that his conviction for attempted murder was based on the testimony of PW2, which was not corroborated. PW2 was a member of the search party sent to search uncompleted buildings for any trace of the deceased. He testified that he encountered a group of four people in the bush including the appellant (who was the 2nd accused), the 1st accused, the deceased Sunday Jegede, and one other person and that they started beating him. He testified that the 1st accused brought out a sword, which he snatched from him and ran to the Oba in the town. It was argued that PW2 was an unreliable witness. At pages 263 – 265 of the record the lower court critically examined the reliability of the evidence of PW2 and concluded, as did the trial court, that he was a reliable witness and his testimony was credible and did not require corroboration.

The lower court also considered the alleged contradictions in the evidence of the prosecution witnesses and found that the inferences against the appellant were strong enough to establish his guilt beyond reasonable doubt and support his conviction. In the absence of any showing that the concurrent findings of fact by the two lower courts are perverse, I see no justification for disturbing the decision. This position accords with the finding of this court in the sister case to this appeal in: Olanrewaju Ayan Vs The State (2013) 15 NWLR (Pt. 1376) 34.

For these and the fuller reasons contained in the lead judgment, I also dismiss the appeal as totally lacking in merit. The judgment of the lower court affirming the convictions and sentences of death and life imprisonment imposed on the appellant by the trial court is hereby affirmed.

Appearances

Olakunle Agbebi For Appellant

AND

Olawale Fapohunda, Hon. Attorney-General Ekiti State with Gbemiga Adaramola, Deputy Director Legal Research, Ministry of Justice Ekiti State and Miss Adetutu Oluwaseyi, Legal Officer, Ministry of Justice, Ekiti State For Respondent

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