APPEAL – INTERFERENCE WITH CONCURRENT FINDING(S) OF FACT(S) – Attitude of the Supreme Court to interference with concurrent finding(s) of fact(s) of Lower Courts


“These days lawyers, in their bid to make the required number of appearances at the appellate Courts entitling them to apply for the conferment of the privilege of the rank of Senior Advocate, have resorted to bothering this Court with most trivial cases. This case appears to be of these trivials. Notwithstanding the concurrent findings of fact that the appellant committed the alleged rape on the PW3, and the two Courts below emphasising that no reasonable doubt exists that the appellant committed the raped charged; the appellant’s counsel is still submitting that the prosecution, by dint of Section 138 of the Evidence Act must prove the guilt of the appellant beyond reasonable doubt. He reiterated the point that there must be no reasonable doubt in the mind of any person observing the proceedings that the accused person was indeed guilty of the offence charged; and that where there is such doubt, as when the prosecution’s case is shaky, the accused would be entitled to have such doubt resolved in his favour. As if he was addressing a pack of uninformed villagers in a village auditorium. The appellant’s counsel, Mr. Omotosho, after some circolocuity, without actually showing satisfactorily how the concurrent findings of fact had occasioned any miscarriage of justice to the appellant, sermonized wishfully that “the learned trial judge and the Court of Appeal had to come to the conclusion that there was no sufficient corroborative evidence of the testimony of PW3. The two Courts below did exactly that as the appellant’s counsel admonished. They found concurrently, as a fact, that Exhibit P2, the medical report issued by the PW5 together with the testimonies of the PW1, PW2, PW4 and the medical evidence of the PW5 had sufficiently corroborated the testimony of the PW3. At the apex Court, that is this Court, the appellant’s brief should be demonstrating how the intermediate Court committed some error in its review of the trial Court’s decision and that by the said review error, the appellant had suffered serious miscarriage of justice. In other words, an appeal at the apex Court is not intended that the evidence at the trial should be evaluated for the third or more times. That is, at this level of appeal, the appellant must only concern himself demonstrating how the intermediate Court misconceived his case at the trial Court below it. Having so satisfactorily demonstrated, the appellant then invites this Court to interfere with the decision of the intermediate Court. The settled principle of law in appellate Court practice is that the apex Court will not lightly interfere with concurrent findings of fact and will not, unless under special circumstances, hear arguments seeking to disturb concurrent findings of fact. To demonstrate the antiquity of this judicial policy, I hereby call in aid Ometa v. Numa (1934) 11 NLR 18; Serbeh v. Karikari (1939) 5 WACA 34. Since concurrent findings of fact prima facie entitle the respondent to a judgment dismissing the appeal, the apex Court will decline to review the evidence for the third time unless the appellant proffers or establishes some circumstances that would justify the departure from that practice: Nanka-Bruce v. Gbeke, PC No. 56 of 1948 (Ghana). In Okogi v. The State (1989) 1 NWLR (Pt. 100) 642, the rationale given for this is that the appellate Court is not in a good position to assess the credibility of witnesses. The only Court that has that unique advantage is the trial Court that at the trial proceedings, has the privilege of watching, hearing and observing the witness(es) testify in open Court. The appellant was convicted for raping the PW3, a school girl returning from school that he violently seized from the road and had forceful non-consensual sexual intercourse with. His identity was not in dispute. Both PW3 and PW4 gave unequivocal and undiscredited evidence on this. The lower Court, affirming the appellant’s conviction, found that the “identification of the accused was spontaneous and natural” and that the evidence of the PW3 and PW4 on this “was extemporaneous and unrehearsed”. I cannot, in the circumstance, fault the lower Court’s conclusion that “in such an extemporaneous identification of an accused person, the Court would not be wrong in relying on the evidence of the PW4. SeeIlodigwe v. The State (2012) All FWLR (Pt. 654) 1, (2012) 18 NWLR (Pt. 1331) 1…” per EKO, J.S.C. in ISMAILA KIWO v. THE STATE (2020- LCER-39167-SC) at p. 9 – p. 13

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