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Sowemimo v. State.

OTUNBA F. E. SOWEMIMO

BABATUNDE SOWEMIMO

V

THE STATE

SUPREME COURT OF NIGERIA

UTHMAN MOHAMMED, JSC ( Presided )

AKINTOLA OLUFEMI EJIWUNMI, JSC

NIKI TOBI, JSC

DAHIRU MUSDAPHER, JSC

IGNATIUS C. PATS-ACHOLONU, JSC ( Read the Lead Judgment )

SC. 45/2002

FRIDAY, 23RD APRIL, 2004

APPEAL - Cross-appeal - Need for appellant to obtain leave of court before filing - Effect of failure to do so

COURT - Expert evidence - When contradictory -  Attitude of court thereto

CRIMINAL LAW AND PROCEDURE - Accused unequivocally pinned to locus in quo by witness(es) - Whether can avail himself of the defence of alibi

CRIMINAL LAW AND PROCEDURE - Death - When alleged to be from an act of a person - Need to link with person’s act

CRIMINAL LAW AND PROCEDURE - Defence of alibi - Need for to be raised at an earliest opportunity

CRIMINAL LAW AND PROCEDURE - Defence of alibi -  When not raised at the earliest opportunity - Effect of

CRIMINAL LAW AND PROCEDURE - Manslaughter - Conviction for Need to point beyond reasonable doubt to the accused

CRIMINAL LAW AND PROCEDURE - Medical evidence -  When discredited - Whether accused can be convicted for manslaughter thereon

EVIDENCE - Expert evidence - When contradictory in nature - Whether court bound by it

EVIDENCE - Expert evidence - Qualifications before admittance by the court

EVIDENCE - Expert evidence - Whether in the instant case qualified as such

EVIDENCE - Medical evidence - When discredited - Whether accused can be convicted for manslaughter

NOTABLE PRONOUNCEMENT on the impropriety of a citizen taking the law into his hands

WORDS AND PHRASES - ‘Alibi’ - Meaning of

Issues:

1.              Whether the defence of alibi has been proved.

2.              Whether in all cases the prosecution must prove and tender as exhibits such items as knife, cutlass, axe or other heavily weighted objects before an intention to kill can be proved, and

3.              Whether lack of knowledge of the victim’s state of health or ignorance that torture could kill is a mitigating circumstance in a charge of murder.

Facts:

Tunde Oredipe, the deceased, was accused of having a share of stolen money by Ayo-Ola, the son of the 1st appellant. The evidence is that the deceased was beaten by the three accused persons with plastic hose pipe, electric cable and horsetail. The accused persons took him to the Ikeja General Hospital after the beating for treatment. Tunde Oredipe did not survive. He died in the hospital.

The three accused persons were charged with murder of Tunde Oredipe. The trial Judge convicted them for the offence and sentenced them to death. The Court of Appeal reduced the conviction to manslaughter. The 1st and 2nd appellants were sentenced to ten years and seven years imprisonment, respectively. Dissatisfied, the appellants have now appealed to the Supreme Court.

The State filed a cross-appeal on the reduction of murder to manslaughter. The appeal was struck out on the ground that it was filed without leave of either the Court of Appeal or the Supreme Court. The Supreme Court was left to consider the issues in the main appeal.