GABRIEL V. THE STATE

• Pages: 349-357

GABRIEL V. THE STATE

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349

"Although the expression "unless otherwise ordered by the court," in Order 27

rule 8

enables the court to award interest to commence from a date antedating

the judgment,

the trial judge cannot exercise that power unless there is such a

claim before him. The claim for interest must be endorsed on the writ, although

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it is not necessary also to include it in the pleadings - see

Riches v. Westminster

Bank Ltd.

(1943) 2 All E.R. 725" (Italic mine).

The conclusion I reach on the issue I am considering is that the appellant is

entitled to the statutory interest on the judgment debt at the rate of 10 per cent from

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the date of judgment. The trial High Court has not ordered otherwise.

For the reasons given in the lead judgment of Nnaemeka-Agu, J.S.C., which I

have had the benefit of reading in draft, I agree that the plaintiff is entitled to his claim

for 1416,000.00 against the defendant. So, in my judgment, the trial court was right

in giving judgment for the plaintiff in that amount and that the court of Appeal, Kaduna

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Division was wrong in over turning that judgment.

Accordingly, I too, allow the plaintiff/appellant's appeal. I abide by all the conse-

quential orders in the lead judgment of my learned brother Nnaemeka-Agu, J.S.C.

Appeal allowed

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GABRIEL V. THE STATE

25

AYO GABRIEL

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APPELLANT

V

THE STATE

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RESPONDENT

SUIT NO. SC 20/1989

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SUPREME COURT OF NIGERIA

NNAMANI,

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J.S.C.

KAWU,

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J.S.C.

BELGORE,

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J.S.C.

NNAEMEKA-AGU, J.S.C.

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WALT,

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J.S.C.

8th December, 1989

Criminal Procedure - Appeals - Issues not raised in trial court.

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Criminal Law - Murder - Defences

Evidence - Contradictory Evidence - Effect - Circumstantial Evidence - required standard

- Expert opinion given in court - Medical report - whether necessary.

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ISSUES:

1.

Whether an accused person can be convicted on circumstantial evidence

2.

Whether the trial court is limited to only considering the defences raised by the

accused person

3.

On whom does burden of proof of provocation and self defence lie?

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4. Whether there is any need to tender a medical report were the doctor himself

gives oral evidence.

5.

Whether cause of death can be inferred from circumstances where medical

evidence is lacking

6.

Whether an accused person can raise for the first time on appeal a fresh issue

not raised in the trial court.