Holo Lanre V. The State (2018)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

The Court of Appeal, sitting at Akure (Coram: Owoade, Danjuma and Abiriyi, JJCA), on 24th February, 2015 in the appeal No. CA/AK/60CA/2014, affirmed the conviction of, and sentence imposed on the Appellant for the offences of criminal conspiracy to murder, and the murder of one Adeoye Dowo (a hunch-back young man 19 years old). The said Adeoye Dowo (deceased) was until 13th January, 2012, living with his mother, Mrs. Lydia Dowo (the PW.1) a widow. The deceased slept in the same house with his mother the previous night. Early in the morning of 13th January, 2012, he went out to urinate and never returned to the house. The deceased, according to the PW.1, was an intimate friend of the 1st Accused who lived in the neighbourhood. The villagers alerted, started frantic search for the missing youngman. The PW.1 and the villagers went to the house of the 1st Accused, who was a tenant of the 2nd Accused (the Appellant herein). The 1st Accused was not found in his room or within the vicinity of his home.

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Upon the lead that the deceased was seen that morning with the 1st Accused, he (the 1st Accused) was arrested. On interrogation by the Police the 1st Accused, according to the PW.2 (a Police Officer), volunteered to take the Police and the villagers “to where the deceased was tied to a tree very close to Oniparaga village along Lagos/Ore expressway.” He led the team to the particular spot in the bush where the butchered corpse of the deceased was found. His hunch-back had been removed therefrom.

The 1st Accused, in his narration to the Police, mentioned the other persons (including the Appellant) who were party to the conspiracy and the murder of Adeoye Dowo (the deceased). The Appellant was arrested by the youths in Ore and brought to the Police Station at Ore.

The PW.3, an Inspector of police attached to the State C.I.D Headquarters, testified that he read over the 1st Accused’s confessional statement, in Exhibit A6, to the Appellant (the 2nd Accused) and that the Appellant, also confessing to the conspiracy to murder the deceased and the said murder of the deceased, further made Exhibit A7 voluntarily. PW.3 further testified that –

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The 1st Accused, followed by the 2nd Accused (herein the Appellant) led us to a bush about 1/2 kilometer to the Express (way). Because the corpse had been removed to the mortuary by the Police at Ore, the accused persons showed us a tree where Adeoye Dowo, male 19 Years old student of one Secondary School in Ago Alaye, was tied. They said after tying the deceased against the tree, the 1st accused person and Dayo Araromi left the Place to buy schnapps and cigarette while Lanre (the Appellant herein) and Olodu were left behind to watch over the deceased in the bush. When they came back, (they) together with Lanre (the Appellant) started hitting the boy with wood until he dropped dead and Dayo started cutting the hunch-back. After removing the hunch-back, it was put in one custard plastic.

This piece of evidence, hostile as it is to the case of the Appellant, and establishing prima facie the involvement of the Appellant in the alleged conspiracy to commit murder, and the murder of Adeoye Dowo (the deceased), was not in any way subjected to cross-examination either to challenge it or discredit the PW.3 on it. A principle of the law of evidence which now is firmly established in jurisprudence is that facts

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not disputed are taken as admitted and therefore need no further proof as they are no longer contentious: ODULAJA v. HADDAD (1973) 11 S.C 35; OGOLO v. FUBARA (2003) 11 N.W.L.R. (Pt. 831) 231. They are good and credible evidence that a Court of law can act or rely on, unless they are patently incredible: OKUPE v. IFEMEMBI (1974) 3 S.C. 97: OMOREGBE v. LAWANI(1980) 3 – 4 S.C. 109. The Appellant bears the duty of proving that a particular piece of evidence, especially an undisputed fact, is patently incredible and therefore unreliable. Until he discharged that burden an undisputed fact remains good and a credible fact the Court can act or rely on for any finding of fact.

The Appellant made two extra-judicial statements, Exhibits A5 and A7. Both are confessional and inculpatory. Exhibit A5, dated 17th January, 2012, to the PW.2, an Investigating Police Officer (I.P.O), was at page 23 of the record, tendered and admitted in evidence without objection. The statement is confessional and verily self-incriminating. The trial Court (Akeredolu, J., as she then was) relying on Exhibit A5 and other pieces of evidence particularly the testimonies of

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PW.2, PW.3, PW.4 and PW.s, after thorough evaluation of the totality of the evidence available, found (particularly from pages 107 to 112 of the Record) as of fact that the prosecution had proved beyond reasonable doubt the guilt of the Appellant, as the 2nd Accused, in respect of the offences of criminal conspiracy and murder preferred against him. He was accordingly sentenced to death. His appeal to the Lower Court, argued on four (4) issues, was dismissed in its entirety. The four (4) issues argued at the Lower Court were all issues of facts.

The Lower Court, in dismissing the Appellant’s appeal, found inter alia that –

1. That the trial Judge has meticulously considered all the facts disclosed by evidence properly led and has come to the irresistible conclusion as he did. The judgment remains unimpeachable as there has been proper evaluation of evidence and the trial Court taking advantage of the benefit of observing the demeanour of witnesses who testified – (page 194).
2. Generally, the onus is on the Appellant to satisfy the appellate Court that the decision appealed was wrongly decided – (page 194).

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(In the instant case), the prosecution does not rely on a confessional statement alone, but the chain of other unbroken evidence was conclusive and strengthened the evidence of the involvement of the Appellant in the charges – (page 194).

4. The person that the Appellant saw, being led into the bush, but kept or maintained a deadening silence upon the making good of the promise of N100,000.00 to him by the captors was later found dead! Butchered on a stake! That the death was a result of the concerted act of his captors is obvious—- From the act of the Appellant, conspiracy could be interred (page 194).
5. The overwhelming evidence of the prosecution witnesses, the PW.1 lost her only child, Adeoye Dowo, a hunch-back to the capriciousness and murderous intent and action of the 4 persons that were charged among whom was the Appellant herein, as proved (page 193).
6. The conduct of the Appellant was such that suggested conspiracy in respect of the offence that was consummated. That the 1st accused and 2nd accused/Appellant herein were together in the car, wherein they were with their victim, is discernible from their respective statements (Page 195).

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The learned trial Judge did an expertly evaluation in knitting the evidence or statement of DW’1 to the evidence of Prosecution witnesses. All cumulatively proved the offences charged.It is against this judgment that the Appellant has further appealed on four grounds of appeal. The Respondent, the prosecution challenges in the Notice of Preliminary Objection, the competence of grounds 1, 3, & 4 of the Notice of Appeal “for gross incompetence”, the grounds having not arisen “from the judgment of the Court of Appeal and same not being an issue for determination before the Lower Court.”I have painstakingly perused the decision of the trial Court on which the Appellant’s appeal to the Lower Court was predicated. The four (4) grounds of appeal contained in the Notice of Appeal against the decision of the trial Court that was filed on 3rd December, 2013 does not raise any issue that the entire proceedings of the trial Court contravened the fair hearing provisions of the 1999 Constitution, as amended, on the grounds that “the trial Court failed to interpret or employ an interpreter to interpret the entire proceedings to the Appellant who does not understand or

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speak English” language. No such issue was raised at the Lower Court, and no such issue was decided by the Lower Court. Clearly therefore, this issue now being canvassed in ground 1, of the grounds of Appeal is a fresh issue, which never arose from the decision appealed.

An issue is a fresh issue at the appeal Court, if it was not an issue, either as a point of law or fact, that was not raised, tried, considered and pronounced upon by the Court below: SHONEKAN v. SMITH (1964) 1 ALL N.L.R. 158; AKPENE v. BARCLAYS BANK (1977) 1 S.C. 47; FADIORA v. GBADEBO (1978) 1 S.C. 219 at 247; OSINUPEBI v. SAIBU (1982) 1 S.C. 104; OKOLO v. UNION BANK OF NIGERIA LTD (1998) 2 N.W.L.R. (Pt. 539) 618. An appeal is a complaint against the ratio decidendi of the decision appealed against. That is why a ground(s) of appeal must properly relate to and connect directly with the decision on appeal: ODUNTAN v. AKIBU (2007) 7 S.C. (Pt. 2) 106; KWAJAFFA v. BANK OF THE NORTH (2000) 5 S.C. (Pt.1) 103 at 118. A ground of appeal is therefore irrelevant and incompetent if it constitutes a challenge to a non-existent or phantom decision and/or when it constitutes a challenge to

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a point that does not flow or arise directly from the decision M.B.N. PLC v. NWOBODO (2005) 15 N.W.L.R. (Pt. 945) 379.

Appellate Courts, and this Court in particular, do not always allow an Appellant to raise and argue fresh issues or new points not raised in the Court below: ADEGOKE MOTORS v. ADESANYA (1989) 5 S.C.N.J. 80. Ordinarily, the Appellant who intends to raise a fresh issue or a new point is enjoined to seek and obtain leave to do so. Otherwise, or where no such leave was previously sought and obtained by the appellant to raise the fresh or new point canvassed in any ground of the grounds of Appeal, the said ground is incompetent and must be struck out.

Notwithstanding the fact that issue 1, formulated from ground 1 of the Appellant’s ground of appeal, is a fresh issue and being an issue that never arose at the Lower Court, I will still give it a consideration. It has to be borne in mind that this Court has no jurisdiction, under Section 233 of the 1999 Constitution, as amended, to hear appeals directly from the trial High Court. Subsection (1) of Section 233 of the Constitution puts it beyond doubt that the appellate

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jurisdiction of this Court is only “to the exclusion of any other Court in Nigeria, to hear and determine appeals from the Court of Appeal.” Ground 1, on which the Appellant’s issue 1 is predicated is not a ground or complaint validly and directly arising from the decision of the Lower Court.

At the Court of Appeal, the Appellant never complained that his trial, including his conviction and sentence, was “irregular, unconstitutional, null and void” on the ground that the evidence of the prosecution witnesses, some of which were in Yoruba Language and others in English Language, as he is now complaining in ground 1 of his grounds of appeal. The issue he has now raised out of the ground 1 is –

Whether the Court of Appeal was right in upholding the conviction and sentence of the Appellant by the trial Court despite the abundant Proofs in the record that the trial proceedings were not interpreted to the illiterate Appellant (who could not speak or understand English Language) as mandatorily required by law.

The misconception, inherent in this issue, is that the Appellant expects the Lower Court to behave like Don Quixote, the Knight Errant, who went about the country side

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seeking to fight the cause of justice in respect of which he was not invited. The Lower Court is a Court “established by law and constituted in such a manner as to secure its independence and impartiality.” Its neutrality or impartiality enjoins it, under Section 36(1) of the Constitution, to consider only the issues or complaints laid before it for adjudication. It accordingly did no wrong to the parties herein, particularly the Appellant, by refusing or declining to enter into the arena to do for a party a case it was not invited to do. The Appellant cannot complain that the Lower Court did not raise, suo motu, the issue of there being no interpretation of the proceedings from English to Yoruba Languages.

Section 36(6)(e) of the Constitution, I agree, gives to the Appellant the right, “without payment, the assistance of an interpreter if he cannot understand the language used by the Court.” That right is beneficial to the Appellant, as the accused person. It is a personal right enjoyed by him in the criminal proceedings he was defending at the trial Court. There is no evidence from the records that the Appellant, who throughout was represented by

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a Counsel, asked for interpreter or the interpretation of the proceedings and he was refused or denied the right. He has cited THE STATE v. GWONTO & ORS (1983) 3 S.C. 62 at 55, (the opinion of Obaseki, JSC) for his contention that his conviction and sentence are all a nullity because some aspects of the proceedings were not interpreted to him in contravention of Section 36(6(e) of the Constitution. Obaseki, JSC, at page 66 of the Report, was emphatic that an accused person can only complain that he was denied the right to interpretation if he asked for an interpreter and he was not given, in the following unambiguous terms –

The need for interpretation does not arise if the accused understands the language. A fortiori, the Court will not know that he does not understand the language unless he makes representation about it to the Court or Judge.

In the GWONTO case, some of the accused persons, like the instant Appellant, claimed not to understand English Language, and that they understood only Hausa Language. Like the instant Appellant, also GWONTO & ORS were represented by Counsel at the trial.

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Nnamani, JSC, who wrote the lead judgment in the GWONTO case, placing emphasis on the words in Section 36(6)(e) of the Constitution – IF HE CANNOT UNDERSTAND THE LANGUAGE USED AT THE TRIAL OF THE OFFENCE, stated:

The right to an interpreter only arises in such circumstances. This is why it is the duty of the accused person, or his Counsel, to bring to the notice of the Court the fact that he does not understand the language in which the trial is being conducted. Unless he does, it will be assumed that he has no cause for complaint and the question of violation of his right to an interpreter will not arise.

From this and other cases namely: QUEEN v. IMADEBHOR EGUABOR (1962) 1 ALL N.L.R. 287; LOCKNAN & ANOR v. THE STATE (1972) 1 ALL N.L.R. (Pt.2) 62, I should think, and I so hold, that in a criminal trial where an accused person is represented by Counsel, if objection is not taken to any irregularity with respect to interpretation, such accused person cannot later on complain that his right, to have the proceedings interpreted to him in a language he understands, had been violated.

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From the facts peculiar to this case, I find it hard to accept, on this issue 1, that the alleged failure to provide an interpreter to this Appellant at the trial did occasion any miscarriage of justice to him. He has not discharged the duty, incumbent on him, to show that the failure to provide him an interpreter has occasioned a miscarriage. That duty is on him: QUEEN v. EGUABOR (supra); UWAEKWEGHINYA v. THE STATE (2005) ALL F.W.L.R. (Pt. 259) 1911 at 1923 – 1924; ANTHONY OKORO v. THE STATE (2012) L.P.E.L.R. – 7846(S.C). An accused person and/or his Counsel who, at the trial, acquiesced in the irregular procedure can only complain, and his complaint upheld if he shows that his trial, conviction and sentence had occasioned a substantial miscarriage of justice to him: AJAYI & JULANDE JOS v. ZARIA N.A. (1964) N.N.L.R. 61. I find no such miscarriage of justice to this Appellant.

Issue 1, even on the merits, has no substance. I accordingly resolve it against the Appellant.

The core issue at the Lower Court was: whether at the trial Court, the guilt of the Appellant was proved beyond reasonable doubt Grounds 3 & 4, in the Notice of Appeal to this Court, have respectively complained that the Lower Court had “lowered the standard of proof even

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below balance of probabilities when they upheld the decision of the trial Judge that there has been proof beyond reasonable doubt despite obvious reasonable doubt,” and that the Lower Court erred in law when it affirmed the guilt of the Appellant against the evidence before it. The complaints in the said grounds 3 and 4 having arisen, or flowed directly from the decision appealed against; they are competent. The objection to grounds 3 & 4, and consequently issue 3 encompassing both, having not been made out is hereby overruled.

The net result of this exercise is that the issues available for the determination of this appeal are two. In this wise, I prefer the two issues formulated by the Respondent’s Counsel to the Appellant’s issues 3.1.2 and 3.1.3. They are more precise, and are herein below reproduced thus –

1. Whether or not the learned Justices of the Court of Appeal rightly upheld the holding of the trial Court which admitted Exhibits A, A1, A2 and A3 (Photographs of a corpse) as Proof of the death and/or identity of the deceased – Adeoye Dowo

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Whether the learned Justices of the Court of Appeal were right in holding that the prosecution proved his case beyond reasonable doubt at the trial CourtPrefatory to the issue: Whether the Lower Court was right in holding, affirmatively that the prosecution at the trial Court, proved the case against the Appellant beyond reasonable doubt, the Appellant’s counsel submits that the Respondent failed to prove the guilt of the Appellant beyond reasonable doubt as they were required to by Sections 135 and 136 of the Evidence Act, 2011. He cites NIGERIA AIR FORCE v. EX S.G.N. (DR. OBIOSA) (2003) F.W.L.R. (Pt.148) at 254 (S.C) for this trite and basic principle in criminal law jurisprudence. It has been the principle of law that the standard of proof, in criminal law, that the guilt of the accused person, charged with criminal offence, is established only upon proof beyond reasonable doubt, it is further the submission of the Appellant that the Respondent did not prove the death of Adeoye Dowo nor was the cause of his death linked to the Appellant.I agree, as submitted by the learned Counsel for the Respondent, that for the prosecution to discharge the onus of proof, in a murder charge, it must be established beyond reasonable doubt-

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that the deceased, in this case Adeoye Dowo, died;

b. that the act or omission of the accused person caused the death of the deceased; and

c. that the act or omission of the accused person stated in (b) above was intentional or that it was done with the knowledge that death or grievous bodily harm was its probable consequence:

AHMED v. THE STATE (2003) 3 C.L.R. 145 at 149.

In submitting that the prosecution did not prove that Adeoye Dowo died nor that the Appellant was in any way linked to the death of the said Adeoye Dowo, the Appellants Counsel did not take into consideration the effect of the unchallenged pieces of evidence marshaled against the Appellant by the prosecution. The PW.3, for instance, testified that the Appellant and the 1st accused person led the investigating team to the scene of crime whereat they narrated how the Appellant “started hitting the boy (the 19 year hunch-back, Adeoye Dowo) with wood until he dropped dead and Dayo starting cutting the hunch-back. After removing the hunch-back, it was put in one custard plastic.” The piece of evidence fixing the Appellant to the gruesome manner of

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Adeoye Dowo (the hunch-back boy) was killed and his corpse butchered, was not challenged under cross-examination. This piece of evidence coming from the PW.3 clearly identified the person killed, or who died, as Adeoye Dowo. It also established that the Appellant was hitting him “with wood until he dropped dead.

The man died instantly. His corpse was butchered, and the hunch-back removed and was stolen. The Appellant was present at all material times having initially actively performed the act of pounding the deceased who was tied to a tree “until he dropped dead.”

The Appellant had earlier admitted in Exhibit A5, admitted in evidence without opposition through the PW.2, that the deceased was lured into his house, where the 1st accused was is tenant, in the early hours of 13th January, 2012 and abducted. That from his house the abducted deceased person was taken “into the bush very close” to his house; and that –

When they were taking the boy into the bush, he wanted to shout but Samuel (1st accused) promised to give me N100,000.00. I did not tell anybody. When they promised the sum of N100,000.00 – the sum of N100,000.00 given was at Ago-Alaye. I buried the money in front of my house at Ago-Alaye.

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The Appellant, according to the PW.2, wrote his name on Exhibit A5 himself. The trial Court found at page 105 of the Record, on this evidence, that “by Exhibit A5, the Appellant was aware of the abduction of the deceased the very morning it happened.” This piece of evidence completely derogates his subsequent feeble alibi that he was at Okitipupa when he heard that the deceased had been killed. The PW.3’s unchallenged evidence not only nailed the Appellant to the conspiracy, it also fixed him to the scene of crime as well as his active role in the killing of the deceased by hitting him “with wood until he dropped dead.”

The trial Court, on the available evidence, found as a fact that the 1st accused and the Appellant planned to abduct the deceased in order to extract his hunch-back, and that true to the plan, he was abducted and killed to facilitate the removal of the hunch-back. The trial Court, in the circumstance, found that the offences of conspiracy and the murder of the deceased charged had been proved beyond reasonable doubt. The Lower Court affirmed the judgment; hence this further appeal.

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The Lower Court found correctly, in my view, that the receipt, by the Appellant, of the sum of N100,000.00 as consideration for keeping quiet is a clear evidence on which to infer that he aided and abetted the commission of the offence committed. The Appellant’s conduct clearly tantamounts to his encouragement of those he saw abducting the deceased and taking him to the bush: YAKUBU & ANOR. v. THE STATE (1980) 1 N.C.R.140.

The evidence of PW.5, as found by the Lower Court established the fore knowledge the Appellant had of the plans hatched by 1st accused and others to lure the deceased, entrap him and thereafter kill him for the purpose of the horrendous extraction of his hunch-back. The Appellant, in Exhibit A5, alluded to how the two girls brought in earlier in previous night lured the deceased to his house and thereafter took him into the bush near his house. He went out, after collecting N100,000.00 as fee for keeping quiet. Exhibit A5 clearly undermined and violently uprooted his testimony in open Court that he did not hear that Adeoye was missing and that there was a search for him.”

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Exhibit A5 was corroborated by the testimony of the PW.3 detailing how Adeoye Dowo was killed and butchered.

In the face of these overwhelming pieces of evidence, it will be hard for me to agree with the learned Appellant’s Counsel that the prosecution did not prove that the person killed was Adeoye Dowo and that the Appellant was linked to the death and/or killing of Adeoye Dowo. From the evidence of the PW.3 alone, which remains unchallenged, there is proof beyond reasonable doubt that Adeoye Dowo died; he was killed by the Appellant and his accomplices, his corpse was butchered and the hunch-back removed after the Appellant had clobbered him severally “until he dropped dead.”

It is submitted for the Appellant on the authority of PRINCEWILL v. THE STATE (1994) 6 N.W.L.R. (Pt. 353) at 715, per Iguh JSC, that the simplest way of establishing the identity of a deceased person, the subject of a charge of murder or manslaughter, is evidence of identification by someone who knew the deceased while he was alive. Yes, this is true. But it is not true for all purposes. It is not also sacrosanct nor is it as umbiguitious as the learned Counsel would want it to be.

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It is only good for as long as the accused puts or makes the identity of the deceased an issue. I had earlier pointed out that facts not disputed are taken as established and that they need no further proof for the Court to rely and act on them: ODULAJA v. HADDAD (supra); OGOLO v. FUBARA (supra); OKUPE v. IFEMEMBI (supra) OMOREGBE v. LAWANI (supra). Facts admitted or deemed to have been admitted have the same potency. They constitute the best evidence: DIN v. AFRICAN NEWSPAPERS OF NIGERIA LTD (1990) 3 N.W.L.R. (Pt. 139) 392; (1990) 21 N.S.C.C. (Pt. 2) 318. It does not, therefore, lie in the mouth of the Appellant to say that he did not know the identity of Adeoye Dowo, who he aided and abetted or encouraged his abduction, his being taken to the bush and tied to the stake and who he actively clobbered to death before his corpse was butchered and the hunch-back removed therefrom. His confession to the PW.3 and Exhibit A5 had put it beyond doubt the identification of the person whose unnatural death was the subject of the two count charge the Appellant had been found guilty of.

Yes, PW.2 and PW.3 may not, as I.P.O’s, previously had known the deceased. The Appellant who knew him, as his

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victim living in the same neighbourhood, had confessed to his killing the deceased whose corpse was butchered in his presence. The photographs, Exhibit A, A1, A2 and A3, were tendered to establish the state the butchered carcass of the deceased, from which the hunch-back was stolen, was found. The PW.3 had testified that the Appellant and the 1st accused person led the Police team to the locus criminis at which they narrated confessionally, the gory details of how the deceased was killed and butchered. In my firm view, with or without the photographs Exhibits A, A1, A2 and A3, the concurrent findings of the trial Court and the Lower Court on other pieces of evidence are unassailable. The concurrent findings, not perverse and unreasonable, are particularly supported by the testimonies of PW.2 and PW.3 as well as Exhibit A5. These pieces of evidence suffered no challenge and damage nor were they discredited by cross-examination and the defence evidence. They are credible and reliable.

The learned Appellant’s Counsel makes a mountain out of a non-issue: that because the pathologist did not testify it tantamounts to withholding of evidence for which the

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presumption under Section 167(d) of the Evidence Act, 2011, that evidence which could be produced and is not produced would, if produced, be unfavourable to the person who withholds it, could be invoked. He relies on OGUDO v. THE STATE (2011) 18 N.W.L.R. (Pt. 2178) at 31. 32, where Rhodes-Vivour, JSC states –

A vital witness is a witness whose evidence is fundamental in that it determines the case one way or the other. The failure to call a witness by the prosecution is fatal to the Prosecution’s case. Furthermore, it raises the presumption Section 149(d) (now 167(d)) of the Evidence Act that had he been called, the evidence he would have led would have been unfavourable to the prosecution.

The facts in the printed record do not support the allegation that the Respondent, as the Prosecutor had deliberately withheld the evidence of the medical officer pleaded in the Proofs of Evidence as “Autopsy Report of Medical Practitioner.” On 15th April, 2013 Mrs. Adegoke, the Prosecutor, after she had called five (5) witnesses, prayed to call “one more witness”, the Medical Practitioner. The trial Court adjourned the proceedings to 6th May, 2013 for that

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purpose. On 6th May, 2013, Mrs. Adegoke was constrained to explain the absence in Court of the Medical Practitioner by telling the Court that the witness explained to her that he had a tight schedule of attending to patients that day. The defence Counsel, not impressed by the explanation, urged the trial Court “to order the prosecution to close its case.” The learned trial Court grudgingly acceded to the adjournment sought on terms that if the prosecutor failed on the adjourned date, 28th May, 2013, to produce the Medical Practitioner to testify the Prosecution shall close its case “and the defence shall open.” On 28th May, 2013, the defence Counsel was absent and a further adjournment to 25th June, 2013 was taken. On this 26th June, 2013, Mrs. Adegoke announced that the prosecution “having called 5 witnesses will humbly close its case.”

The facts, as highlighted above, do not support the allegation of deliberate withholding of evidence. They seem, rather, to suggest that the witness was not co-operating and the prosecutor was thereby being frustrated.

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In any case, what is the evidence allegedly withheld, and how will it alter the landscape or structure of the case of the prosecution The learned Appellant’s counsel has not said. If it was to prove the cause of the death of Adeoye Dowo, will that not be mere surplusage, other pieces of evidence having already established that fact In the circumstance, the Medical Practitioner will no longer be regarded as a “vital witness whose evidence is fundamental as it determines the case one way or the other” – OGUDO v. STATE (supra). This Court in OGBU v. THE STATE (1992) 10 S.C.N.J 88, (1992) N.W.L.R. (Pt. 259) 255 has re-stated the principle that medical evidence is not always essential where the victim died on the spot or in circumstances in which there is abundant evidence of the manner the victim suffered his death, as in the instant case. See also R. v. OMONI W.A.C.A 511 at 512; SALAKO v. A.G. WESTERN NIGERIA (1965) N.M.L.R. 107. The cause of the death of Adeoye Dowo, being very clear from the unchallenged evidence on the confession of the Appellant that the deceased “dropped dead” after being clobbered several times with wood by the Appellant. Thereafter his corpse was butchered and the hunch-back brutally severed there from. I should think, and

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I so hold firmly in my view, that the combined brutality of clobbering the deceased “with wood until he dropped dead” and the savagery of severing from his body the hunch-back without anaesthetizing him are the obvious causes of death. In the circumstance, medical evidence ceases to be of any practical or legal necessity: AMAYO v. THE STATE (2001) 12 S.C. (Pt.1) at 17 – 18; KATO DAN ADAMU v. KANO N.A. (1956) S.C.N.L.R. 65; BWASHI v. THE STATE (1965) N.M.L.R. 162.

The Appellant toyed with the defence of alibi. It is submitted by the Appellant’s Counsel that because alibi was not contradicted, it should have been believed. Was it not The alibi was preposterous in view of the unchallenged evidence of the PW.3 that the Appellant confessed his being at the locus criminis and clobbering the deceased “with wood until he dropped dead.” Exhibit A5 also suggests that the Appellant “went outside” his house only after the deceased had been successfully abducted and he, the Appellant, had received N100,000.00, blood money, for keeping quiet.

The integrity of Exhibit A5 is unassailable. The PW.2 testified unchallenged that the Appellant wrote his name on

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the statement himself. There is no dispute about the voluntariness of the making of the statement. The Appellant does not plead non est factum. He also does not deny that he was arrested by Youths and brought to Ore Police State. If the PW.2 and PW.4 are found not to be too precise about the dates the Youths arrested the Appellant and when he was brought to Ore Police Station those are matters of details which do not affect the substance of their unchallenged testimonies. After all, as it is stated in RABIU v. THE STATE (2013) 8 N.W.L.R. (Pt. 585) where the adversary fails to cross-examine a witness upon any particular matter, the implication is that he accepts the truth of the matter and the Court will have no other option than to accept and act on the unchallenged evidence, unless the piece of evidence is itself spurious. The law, as the Respondent submits, on authority of OFORLETE v. THE STATE (2000) F.W.L.R. (Pt. 12) 2081, is that facts not controverted or challenged are deemed to have been admitted.

My Lords, this appeal is a challenge to the concurrent findings of act by the two Courts below. There is a limit we can step in and interfere with those

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concurrent findings, with the view of disturbing them. It is rarely done by this Court. The only exceptional circumstances when this Court steps in and interferes with concurrent finding are when the finding are perverse and they are not supported by the available evidence, and the concurrent findings tend to occasion miscarriage of justice to the Appellant: SOKWO v. KPONGBO (2008) ALL F.W.L.R. (Pt. 410) 680 at 695 – 695. I have, all these while, been showing that the concurrent findings are supported and backed by available evidence that are credible and that the conclusions drawn from them, by the two Courts below, are neither unreasonable nor do they occasion any miscarriage of justice to the Appellant. With or without the photographs in Exhibits A, A1, A2, & A3 there are overwhelming evidence to sustain the conviction and sentence of the Appellant for the offences charged. Adeoye Dowa, a hunch-back was brutally killed for the purpose of extracting his hunch-back. The available evidence established, beyond reasonable doubt, that the Appellant was very much involved and implicated in the conspiracy to abduct and kill the said

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Adeoye Dowo just as he also participated actively in the physical and brutal killing of the said Adeoye Dowo whose body or carcass was butchered and his hunchback severed therefrom and stolen.

There is no substance in this appeal. Accordingly, it is hereby dismissed in its entirety. The decision appealed is hereby affirmed.

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SC.210/2015