Between
CHUKWUEMEKA EZEUKO (ALIAS DR. REV. KING)
and
THE STATE
Delivered by Nwali Sylvester Ngwuta JSC
On the 26th day of September, 2006 the appellant, Chukwuemeka Ezeuko, alias Dr. Rev. King 'M' was arraigned on a six count charge (as amended) before the High Court of Justice, Lagos State in the Ikeja Judicial Division. The amended six count charge is reproduced here below:
"Statement of Offence 1st Count:
Attempted murder contrary to Section 320 of the Criminal Code Law Cap C 17 Vol. 2 Laws of Lagos State 2003.
Particulars of Offence: Chukwuemeka Ezeuko alia Dr. Rev. King 'M' on or about the 22"d of July, 2006 at No, 6B Canal View Layout, Ajao Estate, Lagos in the Ikeja Judicial Division did attempt to murder Olisa Chiejina by intentionally causing fuel to be poured on his person and throwing a lit match on him.
Statement of Offence 2nd Count:
Attempted murder contrary to Section 320 of the Criminal Code Law Cap C 17 Vol. 2 Laws of Lagos State 2003.
Particulars of Offence:
Chukwuemeka Ezeuko, alias, Dr. Rev. King 'M' on or about the 22nd day of July 2006 at No. 6B Canal View Layout, Ajao Estate, Lagos in the Ikeja Judicial Division did attempt to murder Onuorah Chizoba by intentionally causing fuel to be poured on her person and throwing a lit match on her.
Statement of Offence, 3rd Count: Attempted murder contrary to Section 320 of the Criminal Code Law Cap C 17 Vol. 2 Laws of Lagos State 2003.
Particulars of Offence:
Chukwuemeka Ezeuko, alias Dr. Rev. King 'M' on or about the 27*h of July, 2006 at No. 6B Canal View Layout, Ajao Estate, Lagos State in the Ikeja Judicial Division did attempt to murder Vivian Ezeocha by intentionally causing fuel to be poured on her person and throwing a lit match on her.
Statement of Offence 4 Count: Attempted murder contrary to Section 320 of the Criminal Code Law Cap C 17 Vol. 2 Laws of Lagos State 2003.
Particulars of Offence:
Chukwuemeka Ezeuko, alias Dr. Rev. King 'M' on or about the 22ntr of July 2006 at Wo. 6B Canal View Layout, Ajao Estate, Lagos in the Ikeja Judicial Division did attempt to murder Jessica Nwene by intentionally causing fuel to be poured on her person and throwing a lit match on her.
Statement of Offence 5th Count: Attempted murder contrary to 320 of the Criminal Code Law Cap C17 Vol. 2 Laws of Lagos State 2003.
Particulars of Offence:
Chukwuemeka Ezeuko, alia Dr. Rev, King 'M' on or about the 22nd of July 2006 at No. 6B Canal View Layout, Ajao Estate, Lagos in the Ikeja Judicial Division did attempt to murder Kosisochukwu Ezenwankwo by intentionally causing fuel to be poured on his person and throwing a lit match on him.
Statement of Offence 6th Count: Murder contrary to Section 316 of the Criminal Code Law Cap C17 Vol. 2 Laws of Lagos State 2003.
Particulars of Offence; Chukwuemeka Ezeuko, alias Dr. Rev. King 'M' on or about the 22nd of July 2006 at No. 6B Canal View Layout, Ajao Estate,
Lagos in the Ikeja Judicial Division murdered Ann Uzoh alias Ann Uzoh King."
Briefly, the facts leading to the incident of 22nc July, 2006 are as follows: At all material times the appellant, Chukwuemeka Ezeuko, alias Dr, Rev. King, was the General-Overseer of the Christian Praying Assembly with headquarters at Ajao Estate, Ikeja, Lagos. This is not in dispute. Also the parties are ad idem on the father/sons/daughters relationship which existed between the appellant and some of his congregation, particularly the surviving five victims of the July 22nd, 2006 incident and the deceased (victim).
At this point the parties parted ways. The prosecution's case is that the appellant accused the surviving victims and the deceased of immoral behaviour. He summoned them and beat them with various objects. At the peak of his fury, he caused them to kneel down huddled together in an open space on his premises. It was alleged that while they were kneeling down he caused them to be doused with fuel and a burning match to be thrown on them.
Five of the six victims managed to escape with various injuries inflicted on them by the appellant during the beating and burns from the burning fuel. The deceased, Ann Uzoh King was not as lucky as her colleagues. She was alleged to have suffered 65% degree burns from which she later died.
It was stated that appellant applied some ointment on the serious burns sustained by the deceased after which he took her to the hospital. On the other hand, appellant admitted punishing the victims for immoral behaviour among themselves but claimed that the punishment was different from the incident giving rise to this charge in time and place. It was alleged that appellant was upstairs in his residence when he heard fire-alarm and went down to see that a generating set had blown up and the deceased suffered burns from the resulting fire.
The prosecution opened its case on 9th October, 2006, called 12 witnesses and closed its case. The appellant testified in his defence and called eight other witnesses for the defence.
In the judgment delivered on 11th day of January, 2007 the learned trial Judge, after a review of the case of each side, concluded thus:
"I therefore find the accused person guilty as charged on each of the Counts1, 2, 3, 4, 5 and 6, I hereby convict him accordingly on each of the said Counts 1, 2, 3, 4, 5 and 6."
At the sentencing stage, His Lordship remarked, inter alia:
"The severity of the offences and the cruel callousness behind them must be reflected in sentencing the accused while in view of the circumstances of the criminal transaction taking benefit of the sentencing directive stated by the Court of Appeal in Bankole v. The State (1980) 1 NCR 334 at 340/'
The learned trial Judge then sentenced the appellant:
"The accused is hereby sentenced as follows:
1. 20 years imprisonment including hard labour in respect of Count 1.
2. 20 years imprisonment induding hard labour in respect of Count 2,
3. 10 years imprisonment including hard labour in respect of Count 3.
4. 20 years imprisonment including hard labour in respect of Count 4.
5. 20 years imprisonment including hard labour in respect of Count 5.
6. All the prison sentences shall run concurrently and shall only take effect if the sentence in respect of Count 6 is commuted or otherwise set aside.
7. And having been found guilty of murder in respect of Count 6 the sentence of this Court upon you Chukwuemeka Ezeuko alias Dr. Rev, King is that you be hanged by the neck until you be dead and may the Lord have mercy on your soul."
By a notice of appeal filed on 16/1/2007, appellant appealed to the Court below on 16 grounds therein stated. Subsequently the appellant was granted leave by the Court below to file and argue additional grounds of appeal, pursuant to which he filed on 17th June, 200S an amended notice of appeal containing a total of 31 grounds from which 16 issues were distilled for the lower Court to resolve.
In its judgment delivered on 1st February, 2013, the Court of Appeal, Lagos Judicial Division concluded as follows:
"Consequently, upon the foregoing and having resolved the issues against the Appellant, the appeal herein is devoid of any merit and is hereby dismissed. The Judgment of the High Court of Lagos State, Ikeja Judicial Division delivered on 11th January, 2007 in case No. IP/133C/2006 is hereby affirmed. The conviction and sentences imposed on the appellant are hereby affirmed."
In the lead judgment, Hon Justice Adamu Jauro, JCA was constrained to remark, inter alia:
"Before I draw the curtain, I must by way of parenthesis observe that the facts of this case are so miserable, sordid and morbid, reflecting the moral decay of the age in which we live. The appellant, a religious leader, instead of protecting and guarding his followers, has turned round, brutalizing them, setting them ablaze, roasting an innocent soul to death and offering them stone when they desire bread and scorpion when they demand bread..."
Appellant appealed the judgment to this Court on a total of 26 grounds.
In his amended brief of argument deemed filed on 5/11/2015, learned Counsel for the appellant framed the following twelve {12) issues from the 26 grounds of appeal:
"1. Whether the trial of the Appellant on the amended information in this case is competent when the original information is undated, uninitiated and unfiled and whether failure of the lower Court to consider and decide on this issue as raised in Appellant's Brief of argument is proper.
2. Whether the lower Court is obliged to invite parties to address it on the issue it raised suo motu before expunging some from its record when delivering it (sic) judgment, any evidence that was admitted without objection. Was the lower Court right in raising the issue of inadmissibility of Exhibits P1, P4 and P9 as well as part of the oral evidence if PW2, PW5 and PW7 suo motu from the record when delivering its judgment without hearing the Appellant, and was the lower Court right when it upheld the conviction of the Appellant despite the fact that the evidence adduced by investigating Police Officer {PW2) lack credibility.
3. Whether the lower Court was right to have dismissed the defence of alibi put up by the Appellant, and was the lower Court right when it upheld the conviction of the appellant by the trial Court despite the fact that the trial Court place (sic) the burden on the appellant to prove his innocence by not giving effect to the written statements of the deceased, in which she unequivocally stated that what happened to her was caused by generator accident.
4. Whether PW1 is a tainted witness whose evidence required corroboration and in the absence of which her evidence should be treated as unreliable.
5. Whether the lower Court was right when it held that the evidence of PW3 and PW4 were (sic) corroborated by the evidence of PW1, PW8, PW9 and PW10 as well as other real evidence before the Court; was the Sower Court right when it relied on the uncorroborated evidence of PW1, PW3, PW4, PW9, PW10 and PW11 adduced by the prosecution at the trial Court to uphold the appellant (sic) conviction for attempted murder and murder, and was the lower Court right when it upheld the conviction of the appellant despite the fact that the trial Court was saddled with the responsibility of conducting investigation with respect to the genuity of Exhibit (sic) PW10, P11 and P12 as the prosecution had failed to prove the said Exhibits against the appellant beyond reasonable doubt.
6. Whether the lower Court properly evaluated the evidence of the parties before arriving at the decision to convict the appellant, and was the lower Court right when it upheld the conviction of the appellant despite the fact that the trial Court in evaluating the evidence adduced by the prosecution has not established by credible evidence and beyond reasonable doubt that it was the appellant that caused the burnt (sic) injuries, consequently resulting to the death of the deceased and that the deceased -Ann King is dead.
7. Whether the lower Court was right when it upheld the conviction of the appellant by the trial Court despite the fact that the charges were brought by the prosecution against the appellant without any credible and reasonable suspicion that the appellant committed the offences of attempted murder and murder, and was the lower Court right when it upheld the conviction of the appellant, that the prosecution proved the cases of murder and attempted murder against the appellant beyond reasonable doubt when the prosecution failed to prove the ingredients of the offences of murder and attempted murder beyond reasonable doubt.
8. Whether the lower Court duly considered the contradictions and inconsistencies complained of by the appellant in the prosecution's case and arrived at its decision that they are not material to be fatal to the prosecution's case.
9. Whether the lower Court was right to have agreed with the trial Court that it considered and evaluated all evidence adduced as against the appellant complained that the trial Court considered the evidence of prosecution witnesses and made up its mind before considering the evidence of the appellant (sic) witnesses which show bias.
10. Whether the belief of the deceased in danger of approaching death can be inferred from his declaration or statements, surrounding circumstances or opinion of third parties and whether the contention of the appellant that the deceased (sic) belief in danger of approaching death can be garnered and inferred from surrounding circumstances and evidence is correct and was the lower Court right when it upheld the conviction of appellant despite the fact that Section 33 (1) (b) of the Evidence Act relied on by the trial Court to hold that the first two statements of the deceased does {sic) not constitute dying declaration as the accused did not believe herself to be in danger of approaching death is founded in law.
11. Whether the lower Court was right when it upheld the conviction of the appellant despite the fact that the trial Court failed to reach the conclusion from the conduct of the Honourable Director of Public Prosecution (DPP) in the matter that the prosecution (sic) are interested in persecuting the appellant and not prosecuting him,
12. Whether the lower Court was right when it upheld the conviction of the appellant for the offence (sic) of attempted murder and murder despite the fact that no weapon was found or recovered from the accused/appellant."
In his brief of argument deemed filed on 5/11/2015, learned Counsel for the respondent distilled nine (9) issues from the appellant's grounds of appeal for the Court to resolve. The nine issues are reproduced hereunder;
"1. Whether the trial of the appellant on the amended information in this case is competent when the original information is undated, uninitiated, unfilled and whether the failure of the lower Court to consider and decide on the issue as required in appellant's brief of argument is proper?
2. Whether the Court below was right when it held that the trial Court need not invite parties to address it specifically on evidential value to ascribe to Exhibit P1, P4, P9 and part of the oral testimonies of PW2, PW5 and PW7. (Grounds 2 of the Notice of Appeal).
3. Whether having regard to the totality of the evidence, particularly Exhibits P1, P4, P9 and part of the oral testimonies of PW2, PW5 and PW7, the Court below was right to hold and confirm that these (sic) evidence do not amount to dying declaration or res gestae, (Grounds 1, 2 and 25 of the Notice of Appeal).
4. Whether the Court below was right to have dismissed the defence of alibi put up by the appellant. (Grounds 3 and 4 of the Amended Notice of Appeal).
5. Whether PW1 is a tainted witness whose evidence required corroboration and in the absence be treated as unreliable. {Ground 5 of the Amended Notice of Appeal).
6. Whether the Court below was right when it affirmed the decision of the trial Court that the evidence of PW3 and PW4 corroborated by the evidence of PW1, PW8, PW9 and PW10 as well as other real evidence before the Court, (Grounds 6 and 7 of the Amended Notice of Appeal).
7. Whether the Court below was right to have held that the trial Court properly evaluated Evidence of parties before arriving at its decision to convict the appellant. (Grounds 8, 9, 10, 11, 12, 13, 14 and 05 of the Amended Notice of Appeal).
8. Whether the Court below was right to have affirmed the decision of the trial Court that the prosecution proved the cases of murder and attempted murder against the appellant beyond reasonable doubt.
9. Whether the Court below duly considered the contradictions and inconsistencies complained of by the appellant in the prosecution of this case and arrived at its decision that they are not material (sic) to be fatal to the prosecution's case."
In his argument on issue 1, learned Counsel for the appellant argued extensively that the original information "is undated, uninitiated and unfiled" and ipso facto there was nothing to amend. Learned Counsel argued that since the original information does not exist in law, the prosecution cannot amend a process that is incurably invalid. He drew the attention of the Court to the fact that it was at the address stage that Counsel to the appellant found that the information as originally filed was incurably defective, and urged the Court to resolve the issue in favour of the appellant and set aside the entire proceeding as the amended information suffer the same fate with its origin.
The complaint in issue 2 is that the lower Court, suo motu, raised the issue of admissibility of Exhibits PI, P4 and P9 and part of the evidence of PW2, PW5 and PW7 and resolved the issue so raised without calling learned Counsel for the parties to address it on the said issue. He argued that by raising the issue suo motu and resolving same without giving Counsel for the parties the opportunity to address it the appellant was denied his right to fair hearing. He relied on, among others, PDP v. Okwocha (2012) AM FWLR (Pt, 626} 449 at 471 para. 5-H.
He impugned the judgment of the Court below which affirmed the judgment of the trial Court which convicted the appellant despite the fact that the trial Court relied on the evidence of PW2 with regard to the generators tendered in evidence. He said that the PW2 did not identify the two generators admitted in evidence and marked Exhibits 16 and 17.
He argued that the generators specified in the search warrant were Suzuki 8 V7500 and Elemax 5000 DX but that none of Exhibits 16 or 17 is identified with any of the generators brought to Court, and that none of the generators, Exhibits 16 or 17, was tested in Court to confirm whether they malfunctioned. He argued further that there was no expert evidence as to the state of the generators to show whether such generators could have been burnt in the accident.
Learned Counsel complained that the prosecution merely dumped their exhibits on the Court and expected the Court below to do the prosecutions job (perhaps, by tying the exhibits to the evidence of the witnesses). He urged the Court to resolve issue 2 in favour of the appellant.
In issue 3, learned Counsel stated that as the law requires of him, the appellant, at the earliest opportunity, set up a defence of alibi, thus giving the Police the opportunity to investigate to prove or disprove same. It is his case that at the time of fire, the appellant was alone upstairs while the DW1 was working downstairs. Counsel argued that if there is no prima facie case made against an accused, the judge should not import any evidence in order to convict him.
He complained that the deceased, Ann King, made statements, Exhibits P1 and P4, stating that the injury on her body was caused by generator accident but the trial Court discountenanced Exhibit P1 and P4 which exonerated the appellant in favour of Exhibit 9 which implicated the appellant. He urged the Court to resolve issue 3 in favour of the appellant.
Issues 4 and 5 were argued together. Learned Counsel argued that "after finding that the role played by PW4 could ordinarily make her an accomplice to the alleged crime of the appellant, that she made two contradictory statements to the Police and admitting telling lies under the directive of the appellant, the trial Court and the Court below should have rejected her evidence as unsatisfactory but rather held that her evidence was corroborated by evidence on the record." Learned Counsel also attacked the evidence of PW1 on the grounds that she admitted telling lies on her earlier encounter with the appellant. He argued that the Court below erred in law when it agreed with the trial Court's evaluation of PW4's evidence and concluded that the PW4 was telling the truth even though he- evidence needed corroboration which the Courts said they found in the evidence of PW1, PW9 and PW10.
He argued that the record shows that; (1) PW1, PW3, PW4, PW9, PW10 and PW11 were members of the appellant's church and had ugly encounters with the appellant in the past. (2) PW1, PW3, PW4, PW9, PW10 and PW11 have a purpose of their own to serve by giving evidence at the trial against the appellant. (3)PW1, PW3, PW4, PW9, PWIO and PW11 used the trial to settle old scores and grudges against the appellant. (4) Some of7 the prosecution witnesses in their extrajudicial statements stated that the appellant will die. "These, we submit, with all respect should be resolved In favour of the appellant."
Learned Counsel argued further that Exhibits P10, P11 and P12 were not recovered by PW2 in the presence of the appellant or pursuant to any search warrant and that since the appellant denied ownership of the exhibits, the circumstances of their recovery are questionable.
He said Exhibit P10 was not subjected to any forensic test for traces of fuel and PW4's finger print which would have corroborated the evidence that Exhibit P10 was indeed used by PW4 in the pouring of the fuel on the victim. On Exhibit P13, learned Counsel argued that the prosecution's failure to ascertain by forensic test that the stain was blood, it is human blood and that it was the blood of PW1 was fatal to prosecution's case. He urged the Court to resolve issues 4 and 5 in favour of the appellant.
In issue 6 on evaluation of evidence, learned Counsel for the appellant argued that the Police failed to investigate among others, that the appellant and the witnesses for the prosecution have at the material time spiritual father/spiritual children relationship. Learned Counsel made a long list of fact which he alleged the Police failed to investigate but I ignored the list since it does not involve evaluation of evidence by the Court.
However, he said that the deceased made two statements In the Police Statement Caution Form but the Police opted to write the third one on plain paper. He said that Exhibits P10, P11 and P12 were not recovered with a search warrant and that the exhibits could have been picked from anywhere and brought to Court to implicate the appellant. He made the same argument on Exhibits P16 and P17, the generators, which he said were not recovered in the presence of the appellant.
He referred to the evidence of PW1, PW3, PW9, PW10 and PW11 to the effect that the appellant did not want to burn his victims in his sitting room where he had "rug and chair/settee" and so took them outside and set them ablaze and submitted that the appellant's cars and the whole of his house could have been burnt if the story of the prosecution were to be true. He urged the Court to accept the evidence of DW6 as the truth of what transpired with the generator. He said that PW11 who was detailed to bring PW6 into the appellant's fold offered PW6 "a whopping bribe" to testify against the appellant.
He referred to the evidence of the six persons on whom petrol was ooured and set ablaze and argued that if it were true even the person who threw the lit match to set the fire could have been burnt in the process of setting the fire. He urged the Court to hold that the evidence was not properly evaluated and to resolve Issue 6 in favour of the appellant.
In issue 7 on the onus of proof he repeated the argument that if a lit match was thrown at six people kneeling down in a pool of petrol, the whole six persons as well as the person who threw the lit match could have been burnt to death. He reviewed the entire evidence and submitted that the case against the appellant was not proved beyond reasonable doubt.
In issue 8, on alleged contradiction and inconsistencies in the prosecution's case, he referred to the evidence of the eye-witness, PW1, who told the Court that PW4 brought the fuel in a bowl while the PW3 said that the PW4 brought the fuel in a jerry can, the evidence of PW1 to the effect that the PW4 came to the sitting room, poured the fuel on the victim, struck a match which caught fire and went off, that the appellant directed the PW4 to pour the remaining fuel on the victim after which he struck the second match which caught fire and set the victims ablaze, and evidence of PW3 that appellant brought a lighter which failed and he then ordered PW4 to get matches and submitted that PW1 and PW7 never mentioned lighter but fuel and matches.
He argued that the lower Court failed to avert to the contradiction in the evidence of the prosecution in its judgment. In the circumstances, he submitted that the prosecution's account of what happened on 22/7/2006 and the sequence of events leaves a doubt as to the guilt of the appellant. He said that there was contradiction as to the cause of death of the deceased and the doubt should be resolved in favour of the appellant. He relied on Akpa v. State (1991) 5 SCNJ 1 at 661-662 para H-D.
With reference to the medical report, learned Counsel argued that if the deceased was burnt it would have been impossible to describe her hair, scalp and face. He urged the Court to resolve issue 3 in favour of the appellant.
Issue 9 is also on evaluation of evidence. Learned Counsel added that it is prejudicial in law for a trial Court to accept the evidence of the prosecution before considering the case of the defence. He reiied on Strabag Construction v. Ibitokun (2010) All FWLR (Pt. 535) 203 at 225226.
In issue 10 on whether the belief of the deceased that she was in danger of approaching death can be inferred from her statement and surrounding circumstances or opinion of third parties, Counsel referred to the 1st and 2nd statements the deceased made shortly after the fire incident stating how she sustained the burns on her body as a result of a generator accident and that the appellant was not responsible for the accident.
He argued that the two statements should have been admitted as dying declaration as the PW6 and PW8 said the deceased suffered 65% degree burns and stood no chance of survival. He referred to the evidence of the deceased brother, PW7, who gave evidence that the deceased told him that she was feeling the highest pain she had ever felt and did not know whether she would survive.
Learned Counsel did not refer to the deceased's third statement but argued that the deceased may have entertained hopes of recovery when she made the first two statements. He urged the Court to resolve issue 10 in favour of the appellant.
Issue 11 queries the conviction of the appellant even when the trial Court could not reach a conclusion from the conduct of the DPP that the prosecution was interested in persecuting and not prosecuting the appellant. Learned Counsel directed the argument on this issue to the Court below which he said misdirected itself and caused a miscarriage of justice when it failed to reach a conclusion that the conduct of the DPP showed he was persecuting the appellant.
He listed the conduct of the DPP from which he argued that the Court below should have reached the conclusion that the DPP was persecuting and not prosecuting the appellant as DPP's omission of two statements of the deceased, Exhibits PI and P4, in which she exculpated the appellant; the omission of extra judicial statement of PW8 to the effect that most of the victims of the incidents of 22/7/2006 upon arriving at his hospital told him (PW8) that the Incident was caused by a generator accident; the inclusion in the charge of PW10 as a victim of the crime even though he did not make a statement to the Police at the time appellant was charged before the Magistrate, while the case was pending the DPP took the prosecution witnesses in three buses to the appellant's premises to rehearse their testimonies, and finally, the DPP coerced PW4 to testify against the appellant in exchange for her freedom.
in addition, he submitted that the DPP quoted verses of the Bible while cross-examining DW9 (the appellant} in open Court to the prejudice of the appellant He cited the case of R v. Sugarman (1936} 25 CR App R 109 at 114-115; Odofin Beifo v. The State (1967} NMLR 1 at 6-7 and urged the Court to resolve issue 11 in favour of the appellant.
In issue 12, learned Counsel for the appellant impugned the conviction of the appellant by the trial Court as afnrmed by the Court below on the ground that no weapon was found on, or recovered from, the appellant. Counsel drew attention to the fact the prosecution offered no explanation for failure to tender the weapon used in the commission of the crimes with which the appellant was charged, the match box or lighter or the jerry can in which the fuel was brought. He added that there was no corroboration of the evidence of prosecution witnesses in the form of exhibits at the trial.
He submitted that the Court was left to speculate that petrol, matches or lighter were used in the commission of the offences and argued that the doubt thus created ought to be resolved in favour of the appellant. He cited the case of Shande v. The State (2005) Al! FWLR (Pt. 229) 1342 at 1357 para F~G in urging the Court to resolve issue 12 in favour of the appellant.
In conclusion he urged the Court to allow the appeal, set aside the judgment of the Court below in Appeal No. CA/L/498/2007 and quash the judgment of the trial Court in ID/133C/2006 and enter judgment acquitting and discharging the appellant.
In issue 1 in his brief of argument, learned Counsel for respondent dealt with the amended information vis-a-vis the original information which was undated, un-initialed and unfiled and the failure of the Court below to resolve the issue as raised by the appellant. With reference to Sambo Petroleum Ltd & Ors v. UBA Plc & Ors (2010) 6 NWLR 530 at 531 and Brawal Shipping v. Onwudikoko (2000) 6 SCNJ 503 at 522, learned Counsel conceded the general principle of law that a Court has a duty to consider all issues raised by the parties as failure to do so may lead to a miscarriage of justice.
He said grounds 1 and 2 in the appellant's amended notice of appeal before the Court below complained of error made by the trial Judge and the consequence of the amended information. He referred to appellant's brief in the Court below and stated that appellant did not formulate any issue from grounds 1 and 2 of his amended notice of appeal. He relied on Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993).
He argued in alternative that even if the issue was raised and the lower Court failed to resolve it, no miscarriage of justice resulted from the failure. He relied on Sukanni Odebesin v. The State (1914) LELR 22694 SC to urge the Court not to tamper with the lower Court's judgment based on a technical point which does not affect the substance of the case. He urged the Court to resolve issue 1 against the appellant
Issue 2 deals with the propriety vel non of the Court below not ascribing probative value to Exhibits PI, P4, P9 and part of the oral testimonies of PW2, PW5 and PW7 without inviting Counsel for the parties to address it. He made the point that contrary to the contention of learned Counsel for the appellant, the trial Court did not expunge Exhibits PI, P4 and P9 or part of the testimony of PW2, PW5 and PW7.
He referred to a portion of the judgment of the lower Court and submitted that the Court upheld the refusal of the trial Court to accord weight to the said Exhibits PW2, PW5 and PW7 as they relate to what the deceased told the witnesses as the exhibits do not qualify either as dying declarations or res gestae. He argued that the trial Court properly evaluated Exhibits PI, P4 and P9 and the evidence of PW2, PW5 and PW7 relating thereto before reaching its decision and urged the Court to so hold.
Issue 3 is on whether Exhibits P1, P4, P9 and part of the oral testimonies of PW2, PW5 and PW7 relating thereto amount to dying declaration or res