Jimoh Salawu V. The State (2011)

LAWGLOBAL HUB Lead Judgment Report

FRANCIS FEDODE TABAI,J.S.C

The Respondent, Jimoh Salawu and one other person, Abolarinwa Ewedayo, were tried at the High court of Kogi state holding at Okene on a two count charge of conspiracy and culpable homicide. The learned trial judge was H. A. Olusiyi J. The prosecution called five witnesses and tendered a number of exhibits and closed its case on the 26th November, 2007 – The matter was then adjourned for defence.

On the 21st January, 2003 however, J.U. Barrah, learned counsel for the accused persons announced that they (accused persons) would not testify and that they were relying solely on the prosecution’s case. He therefore asked for a date for address. On the orders of the court written addresses were submitted.

In the trial court’s judgment on the 24th of June, 2008, the 2nd accused, Abolarinwa Ewedayo was discharged and acquitted. The accused/Respondent was however convicted and sentenced to death. He was not satisfied with his conviction and proceeded on appeal to the court below.

In its judgment on the 18th of June, 2009, the appeal was allowed, the judgment of the trial court was set aside and a verdict of discharge and acquittal entered for the Respondent.

The State was aggrieved by the decision of the court below and has come on appeal to this court via the Notice of Appeal dated and filed on the 21st January 2010. It contained six grounds of appeal.

The parties, through their counsel filed and exchanged their briefs of arguments. By a fiat dated 27th October, 2009 Sir Steve Adehi was given the authority to prosecute the appeal. He therefore prepared the Appellant’s brief of argument. It was filed on the 9th March, 2010. The Respondent’s Brief was prepared by Abdullahi M. Aliyu and same was filed on the 20th April, 2010.

In the Appellant’s Brief, Sir Steve Adehi formulated the following three issues for determination:-

Whether the learned Justices of the Court of Appeal were right in reversing the judgment of the learned trial judge on the ground that inconsistencies existed in the prosecution’s case which created doubts regarding the corpse upon which post mortem examination was carried out.

Whether the court of Appeal was right when it held that the learned trial judge improperly admitted exhibit 1, 2 and 3 being confessional statements of the Respondent in evidence and utilizing them in convicting the Respondent.

Whether having regard to the facts and circumstances of this case, the Court of Appeal was in error in tampering with the learned trial judge’s evaluation of the evidence in this case when same was not shown to be perverse, the Respondent’s brief, Abdullahi M. Aliyu also proposed three issues for concubine determination. Apart from differences in phraseology the three issues are, in abstances(Sic), the same as those of the Appellant. It is therefore unnecessary to produce the Respondent’s issues.

With respect to the first issue of whether there were material contradictions the case of the prosecution, Sir Steve Adehi argued that there were no such material contradictions in the case of the prosecution to justify the reversal of the judgment of the trial court by the Court of Appeal. Learned counsel pointed out that the basis of the lower court’s decision of there being material contradictions is the evidence of the Pw4 and the contents of Exhibit 4B, 4C and 4D and argued that Exhibit 48 which is the coroner’s form made no reference to the corpse of Hassanatu Husseini and had no significance on the case before the court. He argued that Exhibit 4C and 4D prepared and signed by the pw4 were significant.

Learned counsel referred to the reasoning of the court below at pages 248-249 of the record and contended that the reasoning was not supported by the evidence in the printed record. He argued that the question of where the corpse was between the 6th and 17th of October, 2003 was not an issue. Also not in issue at the trial court and at the court below was the question of whether or not a corpse kept in the mortuary for about eleven days can remain fresh. It was learned counsel’s contention therefore that the two issues upon which the court below based its decision of there being material contradictions did not arise from the decision of the trial court. It was his submission therefore that a court of law is bound to decide a case only on the issues raised and submitted by the parties. For this submission, he relied on OBULOR v. OBORO (2001) 4 SCNJ 22 at 31. It was counsel’s further submission that an appellate court can only determine an issue which had been raised and pronounced upon by the lower court. Reliance was placed on U.B.A PLC v. BTC IND. LTD (2006) 19 NWLR (part 1013) 61 at 107-108.

Learned counsel further contended that the court below misinterpreted the evidence of the pw4 about the freshness of the corpse to mean that the deceased had just died. He referred to the uncontradicted evidence of the pw1 and pw5 to the effect that the corpse of the deceased was deposited at the mortuary on the 7, of October, 2003 and remained there until the 17th of October when the autopsy was carried out. It was further contended that the Respondent did not adduce any evidence to show that even if the body was kept in the mortuary for preservation on the 7th of October, 2003, it could not have remained fresh by the 17th October, 2003. Learned counsel argued that there is clear, uncontradicted and unambiguous evidence that the corpse of Hassanatu Huseini allegedly killed by the Respondent on the 6th of October, 2003was the one upon which the pw4 performed the autopsy on the 17th October, 2003. It was counsel’s further contention that contradictions that would warrant an appellate court’s reversal of the decision of a trial court must be substantial and relied on SAMSON NKENJI UWAEKWEGHINYA V. THE STATE VOL. 1 N.C.C. 369 at 384; GODWIN IGABELE II V. THE STATE N.C.C. VOL. II N.C.C. 125 at 149-150.