Francis Durwode Vs The State (2000)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

The appellant was convicted and sentenced for the offence of murder punishable under section 319(1) of the Criminal Code by Odita J. of Warri High Court.

Bomboy Ovie was a child, seven years old. On 18th September, 1985, his mother, Wini Ovie was to travel out of their village. Before she left, she directed her children, including Bomboy Ovie, to go to her father’s house and stay there until she returned. She returned later in the day and saw the children; but Bomboy Ovie was not among them. Wini Ovie began to search for the child. She met the appellant coming out of the bush holding a jerry can and a cutlass, and she observed that he was sweating profusely. She asked the appellant if he had seen Bomboy. He asked back, “Is your child missing” The appellant said further, “If it is true that your child is missing, we will look for him”. Later Wini Ovie reported the matter to her sister, Amroghe Mrovhoghare. The sister remembered that she saw the appellant boiling hot water and later pouring the hot water into a jerry can. When she asked what he was doing with hot water he answered that he was going to hunt for rabbit. She too observed that the appellant was sweating profusely at the time. She then saw the appellant carrying the jerry can with hot water into the bush.

The matter of the missing child was reported to the village elders including the father of the appellant. They all joined hands in conducting a search and when it became dark they stopped and agreed to continue the following day. In the night, the sister of Bomboy’s mother remembered about the behaviour of the appellant on that day and how he boiled water and carried it into the bush. On the following morning, when the sister of Bomboy’s mother mentioned about the appellant’s behaviour of boiling water and carrying it in a jerry can into the bush, the search party followed the direction where the appellant carried hot water into the bush. Amroghe, the sister of Bomboy’s mother, led the search party to the direction which the appellant followed into the bush. As they were going, they saw plantain leaves with blood and a little further they saw a jerry can. The Chairman of the village who was leading the search party opened the jerry can and saw flesh which they believed to be human parts inside. Amroghe identified the jerry can as the one she saw the appellant pouring hot water inside and later carrying it into the bush. Not far from the jerry can they saw two heaps of sand. When they dug the heaps they saw the head of Bomboy Ovie in one heap and human intestines in another heap.

The search party carried all these items to the compound where the appellant lives. I may pause here to explain that the father of the appellant, the mother of Bomboy Ovie and Amroghe are all of the same parents. The appellant lives in the same compound with Amroghe. The party came to the room where the appellant was living. They asked him to open the door but he refused. When they forced the door open, they found a black paper bag containing three pieces of cooked meat. When asked how he came by the meat, the appellant answered that his father bought the meat for him. The father who was present denied buying meat for him. The appellant was arrested. He was charged before the High Court for the murder of Bomboy Ovie. At the conclusion of the trial, Odita J. found the appellant guilty as charged, convicted him and sentenced him to death. On appeal to the court below, the verdict of the High Court was affirmed and the appeal dismissed. The appellant has now come finally to the Supreme Court. His counsel, learned Imadegbelo, identified three issues for the determination of the appeal. They read:

“1. Whether the trial of appellant is not a nullity for breach of the mandatory provisions of Sec. 215 of the Criminal Procedure Law, Laws of Bendel State 1976 and Sec. 33(6) (a & e) of the 1979 Constitution of the Federal Republic of Nigeria and which occasioned a miscarriage of justice”.

2. Whether the circumstantial evidence against the appellant was positive, cogent and conclusive.
3. Whether the evidence of PW2, PW3, PW4, PW5 and PW7 are admissible in law”

Learned counsel for the respondent identified similar issues but couched in different terminologies.

I start with issue 1. Issue 1 was not canvassed at the court below and no leave was applied for to raise it, being a new issue. It should be emphasised that issues for determination must be based on the decision of the court from the decision of which the appeal is filed. See Ogoyi v. Umagba (1995) 9 NWLR (Pt. 419) 283. However, an issue challenging the jurisdiction of the trial court can be raised in the Supreme Court for the first time. The matter raised in issue one touches the jurisdiction of the trial court. The appellant is therefore quite in order to raise the matter before us.

Learned counsel for the appellant submitted that the learned trial Judge failed to comply with the provisions of section 215, of the Criminal Procedure Law of Bendel State and section 33(6)(a) of the Constitution of the Federal Republic of Nigeria, 1979 when the appellant was arraigned before him. Counsel referred to the case of Erekanure v. The State (1993) 5 NWLR (Pt. 294) 385. In the case Olatawura J.S.C., held as follows:

“In this case on appeal, and according to the printed record, there is nothing to show that the court fully complied with these requirements. The five requirements must be satisfied. They are mandatory. The best that could be seen to have been done was that the charge was read to the accused, but in what language If as it has been shown that it was read, was it explained to him. No. There is nothing on record to show that it was read by the Registrar or an officer of court. Where for instance no officer of the court is capable of interpreting the charge in the language the accused person understands, a sworn interpreter is produced to explain the charge to the accused. As shown on page 26 of the printed record, the appellant spoke Urhobo language”

Learned counsel for the appellant argued that the learned trial Judge did not comply with the mandatory provisions of section 215 of the Criminal Procedure Law because when the appellant was arraigned before him, he simply recorded thus;

” Accused person present.

Mr. P.O. Isibor State Counsel for the State

Charge read and explained to the accused person.