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Durwode v. State

FRANCIS DURWODE

V

THE STATE

SUPREME COURT OF NIGERIA

ADOLPHUS GODWIN KARIBI-WHYTE, JSC ( Presided )

UTHMAN MOHAMMED, JSC (Read the Lead Judgment)

SYLVESTER UMARU ONU, JSC

UMARU ATU KALGO, JSC

AKINTOLA OLUFEMI EJIWUNMI, JSC

SC.22/2000

FRIDAY, 8TH DECEMBER, 2000

CONSTITUTIONAL LAW - Duty of accused to be informed in the language he understands of the nature of the offence

CONSTITUTIONAL LAW - Right of accused arraigned to be informed about the nature of the offence charged - Constitutional requirement for

CONSTITUTIONAL LAW - Right of accused to an interpreter - Failure of accused person to notify trial court that he does not understand the language used by the court - Effect

COURT - Appellate court - Duty on to assess each fact considering each peculiar circumstance

COURT - Supreme Court - Duty of to consider issue of jurisdiction of trial court when raised before it

CRIMINAL LAW AND PROCEDURE - ‘Circumstantial evidence’ - Nature and import of

CRIMINAL LAW AND PROCEDURE - Charges - Failure of trial court to record that the charge had been read and explained to accused When will not amount to miscarriage of justice

CRIMINAL LAW AND PROCEDURE - Charges - Need for accused to plead to personally

CRIMINAL LAW AND PROCEDURE - Circumstantial evidence - When applicable

CRIMINAL LAW AND PROCEDURE - Circumstantial evidence - When will ground conviction

CRIMINAL LAW AND PROCEDURE - Murder - Proof of - Mandatory requirements to ground conviction

CRIMINAL LAW AND PROCEDURE - Murder - Right of accused to be informed in the language he understands of the nature of the offence charged

CRIMINAL LAW AND PROCEDURE - Murder - Right of accused to be informed of the nature of the offence charged in the language he undertands where not literate in English

CRIMINAL LAW AND PROCEDURE - Section 36(6)(a) and (e) 1999 Constitution and section 215 of the Criminal Procedure Law Requirements and purpose of

CRIMINAL LAW AND PROCEDURE - Trial - Procedure adopted - Where not objected to by either party - Effect

CRIMINAL LAW AND PROCEDURE -Circumstantial evidence - Power of court to convict when all inferences point strongly to commission of crime by accused

EVIDENCE - ‘Circumstantial evidence’ - Nature and import of

EVIDENCE - Circumstantial evidence - When applicable

EVIDENCE - Circumstantial evidence - When will ground conviction

EVIDENCE -Circumstantial evidence - Power of court to convict when all inferences point strongly to commission of crime by accused

JURISDICTION - Issue of jurisdiction of trial court - Right to raise in the Supreme Court for the first time

LEGAL PRACTITIONER - Submissions of counsel - Need to ground on tenable facts

STATUTE - Constitution, 1979 - Section 33(6)(a) and (e) and section 215 of Criminal Procedure Law - Requirements and purpose of WORDS AND PHRASES - ‘Circumstantial evidence’ - Meaning of

Issues:

  1. Whether the trial of appellant is not a nullity for breach of the mandatory provisions of section 215 of the Criminal Procedure Law, Laws of Bendel State, 1976 and section 33(6)(a) and (e) of the 1979 Constitution, 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 PWs 2, 3, 4, 5 and 7 are admissible in law.

Facts:

The appellant was convicted and sentenced for murder punishable under section 319(1) of the Criminal Code by the trial court and his conviction was affirmed by the Court of Appeal.  He is a close relation of the deceased, Bomboy Ovie, a child of seven years, and a member of the family of the deceased. On the day the deceased was reported missing, the matter was reported to the village elders, including the father of the appellant. They all joined 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 saw the appellant boil water and carry it with jerry can into the bush. On the following morning, when the sister of Bomboy’s mother mentioned about the appellant’s behaviour, the search party followed 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 led the search party, opened the jerry can and saw flesh, which they believed to be that of a human being, inside it. Not far from the jerry can identified to be the one the appellant used to carry the boiled water to the bush, 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. Appellant was later found to have human flesh in a polythene bag in his room.

The appellant was arrested and charged before the High Court for murder of Bomboy Ovie. The appellant was found guilty as charged, convicted and sentenced to death, although there was no direct evidence that the appellant was the one who killed the deceased. On appeal to the Court of Appeal, his conviction was confirmed.

Dissatisfied with the decision of the Court of Appeal, the appellant has appealed to the Supreme Court, contending inter alia that his conviction, based on circumstantial evidence, is not conclusive.

The Supreme Court considered the provisions of section 215 of the Criminal Procedure Law of Bendel State, 1976, and section 33(6)(a) and (e) of 1979 Constitution which provide:

Section 33(6) (a) and (e) of 1979 Constitution provides

“Every person who is charged with a criminal offence shall be entitled  -

(a) to be informed promptly in the language that he understands and in detail of the nature of his offence;

(e) to have without payment the assistance of an interpreter if he cannot understand the language used at the trial  of the offence.”

Section 215 of the Criminal Procedure Law of Bendel State, 1976 provides: “The person to be tried upon any charge or information shall be placed before the court unfettered, unless the court shall see cause otherwise to order, and the charge or information shall be read over and explained to him to the satisfaction of the court by the Registrar or other officer of the court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the court finds that he has not been duly served therewith.”