EWHARIEME & ORS. V. THE STATE

• Pages: 1319-1326

EWHARIEME & ORS. V. THE STATE

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1319

EWHARIEME & ORS. V. THE STATE

5

GABRIEL EWHARIEME & ORS.

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APPELLANTS

V

10 THE STATE

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RESPONDENT

SUIT NO. SC 196/1984

SUPREME COURT OF NIGERIA

ESO,

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J.S.C.

NNAMANI,

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J.S.C.

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KAZEEM,

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J.S.C.

KABIRI-WHYTE,

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J.S.0

KAWU,

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J.S.0

29th November, 1985

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Criminal Law and Procedure - Armed Robbery - Evidence establishing accused :s

participation in robbery - Practice at hearing - Concurrent findings of lower

courts - Principles on which reviewed - Accused failing to show miscarriage

of justice or violation of some law or procedure - Grounds of appeal -

Impropriety of raising issues not raised in lower court - Accused in capital

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case specially granted leave in interests of justice to argue grounds of mixed

law and fact not raised in Cowl of Appeal.

ISSUE:

1. Whether the Supreme Court may deal with grounds of appeals on mixed law

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and fact or facts simpliciter which have not been raised by appellant counsel

in the lower court.

FACTS:

In this case, the appellants robbed Fateru Motors, Ilesha. They stole N109

found in a locker in the office of P W.6. In the course of that robbery, one of the

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appellants shot P.W.1 on the stomach, chest and side. He was shot at the request

of the 2nd appellant who P.W.,1 observed had a deformed leg. Another guard,

P.W.2 was shot near the eye. The bullet passed through his cheek and shoulder

and he was left unconscious in his own blood. The appellants were later identi-

fied by the P.W.1 at an identification parade. The appellants raised various defen-

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ces including a plea of alibi by 2nd appellant. The appellants through their contact

with P.W.7 were apprehended while preparing to rob a construction firm of the sa-

laries of its workers.

When the 2nd appellant's car was searched, the police recovered pistols, ca-

tridges and live ammunition as well as spanners, hammer and masks etc. The

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learned trial Judge exhaustively reviewed the evidence before him, and after con-

sidering their evidence and all the defences raised by the appellants, found all four

of them guilty.

On appeal to the Court of Appeal, that court upheld all the findings of fact made

by the trial Judge. As a result the appellants appealed to the Supreme Court, and

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for the first time they raised grounds of mixed law and facts.

HELD:

1. It is important to stress that issues which come within the ambit of section 213(3)

of the Constitution (the section dealing with grounds of mixed law and facts or

facts simpliciter) should have first been raised at both the trial court and the