22ND JUNE, 1979.

SUIT NO. SC 32/1978

3PLR/1979/1 (SC)


(1979) All N.L.R 94










Chief B. O. N. Omoruwa, Counsel for the Appellant

R. O. Omuoreu, Legal Adviser, Ministry of Justice, Bendel State, Counsel for the Respondent



CRIMINAL LAW:- Murder – Plea of Self-defence – Evidence of accused’s aggression and premeditation – Effect

CRIMINAL LAW AND PROCEDURE:- Prosecution – Duty to call material witnesses to prove its case and right of defendant to cross-examine – Whether the law imposes no obligation on the prosecution to call a host of witnesses – Whether prosecution has a discretion as to how to use listed of witnesses – Where prosecution elects only to use statements of listed witnesses – Whether accused has right to call any of those witnesses if so desired

CHILDREN AND WOMEN LAW:- Women in Business – Recovery of debt for goods sold on credit – Invocation of juju by alleged creditor on the money before handing same over – Fight and death arising therefrom – How treated

HEALTHCARE AND LAW:- Access to emergency healthcare – Practice of reporting first to the police before securing emergency healthcare for critically wounded person – Effect – Implication for justice administration

PRACTICE AND PROCEDURE APPEAL:- Finding of fact of trial court – Attitude of appellate court to invitation to interfere with same unless the decision arrived at pursuant to such findings was unreasonable, unwarranted and cannot be supported having regard to such evidence




IRIKEFE, J.S.C. (Delivering the Judgment of the Court):

After learned counsel for the appellant had addressed us in this appeal, and without calling upon learned counsel for the respondent in reply, we dismissed it and indicated that we would give our reasons later. This we now do. The appellant was tried at the Sapele Judicial Division of the High Court of Bendel State on a charge which alleged that he had murdered one Johnson Uduenye (m) at Sapele, on or about the 3rd day of November, 1975.

The prosecution had earlier on obtained leave of the court of trial to prefer the above charge and had served on the appellant a copy of the proposed indictment as well as a list of intended witnesses and the proof of evidence of each witness.

At the hearing, six witnesses testified for the prosecution, while the appellant gave evidence in his own defence, but called no witnesses.

The court, after evaluating the entire evidence, found the charge proved, convicted the appellant and sentenced him to death.

Being aggrieved by the above decision, the appellant appealed unsuccessfully to the Court of Appeal, and now to this Court.

The conviction is dependent on the testimony of P.W.1, P.W.2, P.W.3 and P.W.4. P.W.1 (Samuel Oladetimeyin) stated that on or about 3rd November, 1975 while he was at his home in the Oguaja area of Sapele, the deceased, Johnson Uduenye, a relation, came to visit him. They both sat down to a game of draughts and not long thereafter were joined by the appellant, an acquaintance of theirs. The appellant remained with them for sometime and as he rose to go away, a lady, P.W.3 (Kingsway Eyomi), also residing in that compound, spotted him and insisted that he should not do so, until he had paid her the sum of 5 kobo, being the value of cigarettes which she had sold to him on credit two days earlier.

At first the appellant denied having made such a purchase and in consequence thereof there was an argument. In order to put an end to the argument, the appellant, in anger, produced a 10 kobo coin, gave same to P.W.3 and asked for 5 kobo change. Before P.W.3 could produce the change, the appellant began to swear juju on the money and this put fear into P. W.3, who then refused to take what was owing to her. The deceased, who had been observing this drama, intervened and queried the appellant for resorting to the swearing of juju over as little a sum as 5 kobo. In reply, the appellant stated that he had done so, because he did not wish to pay a debt he did not owe.

As the appellant was about to go away after responding as above, the deceased insisted that he should revoke the juju before doing so. The appellant lost his temper over this, and dealt the deceased a slap. A fight then ensued between the two, but the people present promptly separated and pacified them. The deceased and the appellant then left the place and each went his own respective way. Shortly after this, the appellant returned and boasted to P.W.3 that she would witness the shedding of blood that day. Later that night, there was a commotion down the road and this made P.W.1 to go and investigate. On arrival at the scene of commotion, P.W.1 found the dead body of the deceased lying on the ground, with blood gushing out from the back of the head.

P.W.3 (Kingsway Eyomi) testified in an almost identical manner up to the point when there was a fight followed by separation. She added that after the fight, she decided to call on a friend. As she was on her way and about to enter into the friend’s compound, the appellant caught up with her and said to her hearing that she (P.W.3) would be mistaken if she thought that the fight which had just ended was in fact over. He said he was going away then, but that he would surely return and that unless he washed the ground with someone’s blood, he would not find sleep. Having spoken thus, the appellant turned and went away.

P.W.3 stated that she got so frightened by what the appellant had said that she decided not to continue with the call she had intended to make on a friend. She quickly returned to her compound and repeated aloud to those present what the appellant had been saying.

Not long after this, word came that a person was lying dead on the road and P.W.3 went to view the body along with others. She saw the corpse of the deceased lying on the ground with blood oozing out from the neck. The sight of the deceased’s body brought vividly back to her mind the threat earlier made by the appellant during their last encounter.

P.W.2 (Samson Egbaho), the only eye-witness to the second encounter between the appellant and the deceased which resulted in the latter’s death, stated that on 2nd November, 1975 at about 8 p.m. while he was cooking in his hotel, he saw two men quarrelling at a road junction nearby in the Itsekiri language. Although he does not understand the said language, he heard the deceased say to the appellant -’ Wo mean Uja we” – which in English means – “So you mean this fight’. He said he also saw a third man trying to advise the two to desist from fighting apparently without success. This third man withdrew from the scene when the appellant slapped the deceased. The deceased retaliated and fighting began. He stated that as the deceased aimed his blows at the appellant, the latter kept moving backwards into Boyo Road. He added that after the two combatants had left the road, the appellant gave the deceased a blow on the occiput which resulted in the latter falling down.

On seeing the deceased fall, the appellant immediately took to his heels. P.W.2 said that when he and others rushed to where the deceased fell, they saw blood issuing out from his occiput. The deceased soon became unconscious and some of those present ran to the police station to make a report. P.W.2 gave the distance between his hotel and where he had seen the two men arguing as 30 feet, while the ultimate point where the deceased fell was some 6 feet short of the earlier distance.

When questioned by the court, P.W.2 testified thus:

I went to where the deceased fell on the ground. I saw no sharp or pointed object like broken bottles or discarded knife where he fell on the ground. Both of them had clenched palms when the deceased wanted to charge on the accused:”

When questioned by defence counsel, P.W.2 testified thus:-

The incident took place at night. But it was dark when they fought. I did not know the two people who fought that day… I told the police that the accused hit the deceased by the back of the neck. I told the police that the man who killed the other was taller than the deceased… When they were fighting they did so through the front of my hotel. The deceased was hitting the accused and the accused was stepping backwards until he got to a dark (sic) of the road where the accused gave the deceased a blow and the deceased fell down and died. All the time the accused was moving backwards and was facing the deceased. I did not see what each of them held in his hand when they were blowing each other.”

P.W.4 (Syed Askary), a medical doctor gave evidence of his findings at autopsy on the body of the deceased. He said he had found a stab injury on the posterior aspect of the neck at the base of the skull with profuse bleeding. In his opinion, the profuse bleeding from the injury he had described was the cause of death. He went on to say that the injury he had found could have been caused by something with a sharp edge like a knife or cutlass or the edge of an axe.

When this witness was cross-examined by defence counsel he testified thus:-

The injury was on the base of the skull, at the back of the neck. If two people are fighting each other there are chances that one can stab the other at the back. During such struggle one of them must have held such instrument.”

P.W.5 (Geoffery Adu – Police Sergeant No. 2621), gave evidence of the arrest of the appellant after the latter had fled the scene of the fight with the deceased some five days earlier. The sergeant said he had visited Ureju Village, near Sapele, on 7th November, 1975 when he received information that the appellant was in hiding there.

Efforts to locate the appellant by the witness even with the aid of the villagers yielded negative results. Before leaving the village, the witness was told by the villagers that they would continue the search for the appellant. On the following day (6th November, 1975) the villagers themselves brought the appellant to the police station at Sapele, where he was formally arrested and charged.

The appellant in his testimony before the court of trial admitted that he and the deceased whom he used to call “Orderly” had been friends. He admitted visiting P.W.1 on the date shown on the charge and also that he had met the deceased there. P.W.3 (Kingsway Eyomi) had also seen him there and had asked to be paid for the cigarettes which he had bought from her on credit. He had admitted making the purchase but added that he had already paid and was no longer indebted to her. He then stated that if he had to pay the same debt over again, he would swear juju in order to protect himself. He had given 10 kobo to P.W.3 and had asked for 5 kobo change, since what he was alleged to owe was 5 kobo. He had sworn juju as he handed the 10 kobo to P.M. The deceased had queried him for swearing juju over 5 kobo and he had reminded him that he (deceased) was a witness earlier on when he had paid for the cigarettes.

The deceased on hearing this called him a thief and said the juju he had sworn would revert to him. He had slapped the deceased for speaking as he had done and thereafter both of them had a fight.

The fight did not last long as they were quickly separated and pacified by those present. The appellant stated that he then left the scene and returned home. Later that day, he had gone to watch a dance being staged by members of the Itsekiri community by Yoruba and McPherson Roads. He had stayed on watching the dance until 7 p.m. when it closed and as he was on his way home, he came upon the deceased who told him that, as that spot was quiet, he would fight him again. The deceased added that he was doing so because he (appellant) had fought and disgraced him that morning. He reminded the deceased that the fight that occurred in the morning had been amicably resolved, but this did not deter him. A man who happened to be on the scene and had tried to make peace between them was pushed away by the deceased. Thereafter, the deceased gave him a slap and they began to fight.

As they fought, he noticed that the deceased held a pen-knife in his hand and he had had to retreat for sometime in order to avoid being injured by the knife. When he found he could retreat no further, he decided to struggle with the deceased in order to wrest the penknife from him. He succeeded in getting the pen-knife from the deceased who then rushed on him in a frantic effort to get it back. It was during this struggle that the deceased was injured by the pen-knife and fell down. He added that on seeing the deceased fall, he ran away from the scene and went into hiding at a fishing camp after Koko. It was while in hiding that word came to him that the deceased had died.

The conviction the subject of this appeal is based on the learned trial judge’s appraisal of the evidence set out above – and the grounds of appeal both from the Court of Appeal and in counsel’s brief before us dwelt extensively on the unsatisfactory nature of this evidence.

The grounds of appeal relied upon by the appellant are as follows:-

1. ERROR-IN-LAW: That the Federal Court of Appeal erred in law in confirming the findings of the High Court Sapele rejecting the plea of self-defence as not being available to the appellant; in fact the ingredients necessary to sustain the defence were manifested in the evidence before the court. Page 52 Lines 26-45 of the record of proceedings refers.

2. ERROR-IN-LAW: That since the Federal Court of Appeal had accepted the established practice that “all witnesses whose names are at the back of the indictment should be called by the prosecution, and even if it is not proposed to call a witness whose name is at the back of the indictment, counsel for the prosecution should, unless there are reasons to the contrary, place him in the witness box so that the defendant may have an opportunity of cross-examining him,” (sic) erred in law in dismissing the appellant’s appeal by placing the onus of calling such witness or witnesses on the defence.

3. ERROR-IN-LAW: That the Federal Court of Appeal erred in law in holding that ‘there is no proof that Gold Abudiah and Olakpa Oyobu were material witnesses in this case and that failure to call them as witnesses for the prosecution had prejudiced the defence of the appellant or had occasioned or was likely to cause any miscarriage of justice to or against the appellant.”

4. OMNIBUS GROUND: That the decision is altogether unwarranted, unreasonable and cannot be supported having regard to the evidence.

In regard to ground 1, it was the submission of learned counsel appearing on behalf of the appellant that, on the facts, the death of the deceased should be deemed to have occurred while the appellant, being in imminent danger of his own life, struck back in self-defence. Counsel also argued that it was erroneous on the part of the learned judge to have held that the defence of a killing in self-defence had not been made out.

We found ourselves unable to accept these submissions which bear no relationship to the state of the printed record. For the plea of self-defence to succeed there must be evidence to which it could be tied.

There was evidence, which the trial court rightly accepted in our view, that the appellant had boasted after the first fight that he would find no sleep that day unless and until he had washed the ground with someone’s blood. The appellant clearly could not have had his own blood in his contemplation and we are in no doubt that the Court of Appeal could not have been more accurate in restating the findings of the court of trial on this aspect of the case when it said –

In this case in which the evidence that the learned trial judge believed showed that the appellant was the aggressor, being the first to slap the deceased both in the morning, on his own admission, when they first fought, and in the evening when he met the deceased on the road according to the evidence of Samson Egbaho (P.W.2), and especially having threatened earlier on that day that his fight against the deceased was not over and that he would not sleep unless he shed someone’s blood that night – all amount to clear evidence of premeditation on the part of the appellant.”

We also note that it was the appellant himself who introduced evidence of the existence of a pen-knife into the case and that his very inept attempt to explain away how the deceased came by the mortal wound on his occiput while, according to the appellant he (deceased) was struggling to regain possession of the pen-knife from him was rightly rejected by the learned trial judge.

The court of trial was also right in accepting the evidence of P.W.2 (Samson Egbaho) and of P.W.4 (Dr. Syed Askary) on which it came to the following conclusion:-

The accused and the deceased had a fight in the morning, the accused boasted that blood would flow and in the evening he went to the road to watt for the de-ceased with a pen- knife in his hand and stabbed the deceased as a result of which the deceased died, that evidence supports a conviction for murder.”

This ground accordingly fails.

On ground 2, counsel argued that the Court of Appeal having accepted the proposition that all witnesses whose names appear on the back of an information should be called by the prosecution and if not called tendered for cross-examination, had erred in not allowing this appeal, since it had been established that two witnesses, namely, Olakpa Oyobu and Gold Abudiah whose names appear on the information in this case had neither been called nor tendered for cross-examination. We find no merit in this submission.

The law imposes no obligation on the prosecution to call a host of witnesses. All the prosecution need do is to call enough material witnesses in order to prove its case; and in so doing it has a discretion in the matter. See Adel Muhammed El Dabbah vs. Attorney-General for Palestine (1944) A.C. 156 where Lord Thankerton in delivering the opinion of their Lordships of the Privy Council stated inter-alia as follows:-

The last contention of the appellant is that he had a right to have the witnesses, whose names were on the information but who were not called to give evidence for the prosecution, tendered by the Crown for cross-examination by the defence, as was asked for by counsel for the defence at the close of the case for the prosecution. The learned Chief Justice ruled that there was no obligation on the prosecution to call them. The Court of Criminal Appeal held that the strict position in law was that it was not necessary legally for the prosecution to put forward these witnesses and that they could not say that the learned Chief Justice erred in point of law, but they pointed out that, in their opinion, the better practice is that witnesses should be tendered at the close of the case for the prosecution so that the defence may cross-examine them if they wish, and they desired to lay down as a rule of practice that in future this practice of tendering witnesses should be generally followed in all courts. While their Lordships agree that there was no obligation on the prosecution to tender, and, therefore, this contention of the present appellant fails, their Lordships doubt whether the rule of practice as expressed by the Court of Criminal Appeal sufficiently recognises that the prosecutor has a discretion as to what witnesses should be called for the prosecution, and the court will not interfere with the exercise of that discretion, unless, perhaps, it can be shown that the prosecutor has been influenced by some oblique motive.”

In the case in hand, the proceedings were commenced in a summary manner by way of an application to the trial court for leave to present an indictment against the appellant, and the evidence upon which the prosecution was to rely, namely, the statements of the witnesses, were exhibited to the application. These statements, on the admission of appellant’s counsel, were served on him and we are unable to see the difficulties standing in the way of counsel in calling them, had he so desired. Moreover, we were completely left in the dark as to the nature of evidence that these witnesses would have given and what bearing, if any, such evidence would have had on the case. This ground also fails.

On the third ground, learned counsel merely repeated his arguments on the second ground which, for the reasons already given, we were unable to accept. This ground also fails.

The last ground deals with issues of fact. We have carefully gone through the entire record and are satisfied that all the findings of the learned trial judge are amply supported by evidence. Counsel has failed woefully to disparage any of the said findings and it would be wrong in principle for this Court to seek to disturb them, since it was the court of trial that had the opportunity of hearing the witnesses and drawing its own impressions from viewing these witnesses.

Over the years, this Court has consistently maintained the stand that it would refrain from disturbing findings of fact made by a court of trial unless the decision arrived at pursuant to such findings was unreasonable, unwarranted and cannot be supported having regard to such evidence. Some indication of this attitude may be found In R. v. Ologen – 2 W.A.C.A. p.333 wherein the following passage occurs –

It is not the function of a Court of Appeal to retry a case on the notes of evidence and to set aside the verdict if it does not correspond with the conclusion at which the members of the Court would have arrived on these notes, nor is it enough that they feel some doubt as to the correctness of the verdict. If there was evidence before the Judge from which he could reasonably have inferred that the appellant made the false statement knowing at the time that it was false the verdict must stand.”

The above view is re-echoed in R. v. Owusu – 8 W.A.C.A. p.167 at p.169 when the court had this to say –

But one case cannot really be judged by reference to another; every case, must rest upon its own facts, and in every case it is for the judge of the facts at the trial – whether that judge of facts be a jury, or assessors, or, as in this case, a Judge assisted by assessors – having the advantage of seeing and hearing the witnesses to decide the question of whether, on the facts, the provocation is such as to reduce the crime to manslaughter. Provided there is evidence upon which the trial court could find murder and provided that there is no substantial misdirection, it is not for us to interfere, even though we may feel, as we do in this case, that we might have come to a different conclusion ourselves.”

See also R. v. Hycienth Egbe – 13 W.A.C.A. p.105 at p.106 and Dinkerrai Ramkrishna Padya vs. Regina – Vol.ll No.ll 1958 Journal of African Law p.122. This ground also fails.

We found no merit In this appeal and the foregoing are our reasons for dismissing it.

Appeal dismissed.

error: Our Content is protected!! Contact us to get the resources...