3PLR – GRACE AKINFE V. THE STATE

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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GRACE AKINFE

V.

THE STATE

 

IN THE SUPREME COURT OF NIGERIA

26 FRIDAY 8TH JULY, 1988

SC.172/1987

3PLR/1988/35  (SC)

 

OTHER CITATIONS

(1988) 3. (Pt. 85) 729

 

BEFORE THEIR LORDSHIPS

KAYODE ESO, JSC

AUGUSTINE NNAMANI, JSC

ADOLPHUS GODWIN KARIBI –WHYTE, JSC

SAIDU KAWU, JSC

PHILIP NNAEMEKA-AGU, JSC

 

REPRESENTATION

Shola Rhodes, with him A. Adeniji, – for Appellant

A. Akenroye, Director of Public Prosecutions, – for Respondent

 

MAIN ISSUES

CRIMINL LAW – Murder

EVIDENCE – Retracted confessional statements – Dying declaration – Cross examination

PRACTICE AND PROCEDURE – COURT – Whether Court should descend into the arena

CHILDREN AND WOMEN LAW: Women and Violence – Woman accused of murder of pregnant senior mate

MAIN JUDGEMENT

P. NNAEMEKA-AGU, J.S.C. Delivering Judgment

On the 5th of May, 1988, this Court allowed the appeal of the appellant in this appeal and discharged her but reserved the reasons for the judgment till today.

Before an Akure High Court, presided over by Adetosoye, J. the appellant, a married woman, was charged, tried, and convicted of the murder of her senior mate, Mufesola Akinfe (hereinafter called the deceased), at Oke Otunba Isunrin Street, Idanre, in the Akure judicial Division of Ondo State, on the 5th January, 1985. Her appeal to the Court of Appeal, Benin Division, was dismissed. On further appeal to this Court she filed one “omnibus” ground of appeal. Through her counsel, Shola Rhodes, Esquire, she sought and obtained leave to argue three additional grounds of appeal.

Some of the facts which led to the appeal are important In 1984, the deceased  was pregnant. Her husband, Chief Akinfe (p. w .2) caused to be prepared for her two types of native medicines one in a schnappes bottle and the other in form of a soup.

The latter was consumed by the deceased within two days, whereas she continued to consume the one in the schnappes bottle for about 30 days. According to the deceased, on the 30th of December, 1984, after taking part of the medicine in the schnappes bottle she started to vomit. The bottle was, however, not handed to the hospital till 1st January, 1985, and nothing was known about its custody during the period of two days. Also some other persons, who did not testify, were said to have  given some medicines to the deceased on 30/12/84, which stopped the vomiting and it is not clear what concoction they administered to her. On the 1st of January, 1985, the deceased was taken to hospital at Idanre: As her condition worsened she was, on the 4th January, 1985, transferred to the State Hospital, Akure, where she died on the following day.

The circumstances of death of the deceased raised a furore from the relations of the deceased led by Rufus Owodoti (p.w.l). They reported the matter to the police.

As a result, the deceased’s husband, Chief Akinfe (who testified as p.w.2) and the appellant were arrested by the police. Charged, the appellant made a statement (Exhibits B and B 1 dated 6/1/85) to the police. It was a complete denial of the charge. Post mortem examination was held on the 8th of January, 1985, but the result of this was not before the Court. I should mention that it was the brother of the deceased who took the remnant of the medicine to the police.

A new twist was introduced into the case on the 11th of February, 1985. On that date some relations of the deceased, those of the husband and those of the appellant trooped to the house of one Chief Adigun Asoga (p. w .3), a traditional healer in order to, as was stated by p.w.2 himself, find out which of he himself and the appellant killed the deceased. According to p.w.3, within 5 minutes of their arrival in his house, the appellant with absolutely no promptings, or torture, or manipulation of any kind knelt down and confessed to her being the murderer and begged him to save her life. She told them that she mixed a weed-killer, Gammalin 20, with the medicine in the schnappes bottle. Appellant and her witness however said they had been tortured for 7 days. p. w.3 said he had administered some cautionary words to her before she made the confession, which he duly recorded in a tape recorder.

As a result of all these the appellant was taken to the police where she was said to have made another statement, Exh. C and C I, which ,the prosecution regarded as confessional. An objection to its being tendered during the trial on the ground that it was obtained by duress was, after a trial within a trial, over-ruled. The appellant, however, retracted the so-called confession in court. After full hearing, the appellant was, as I have stated, convicted as charged.

The learned counsel for the appellant admirably set out the issues for determination in the appeal thus: .

1. Whether it can be said that the Appellant was tried in an atmosphere in which it was possible for her to feel that she was tried by a Judge whose mind was unbiased by his having assumed the role of the prosecutor and the Judge during the trial.
2. Whether the conviction of the Appellant as confirmed by the Court of Appeal can be said to be safe, on the face of the role played by p. w .3,. the traditional healer and diviner in extorting confession from the Appellant in the traditional way.
3. Whether it was safe for the Court of Appeal to have confirmed the conviction of the Appellant, when there was no medical evidence to confirm the outcome of the post-mortem on the deceased that she died as a result of poisoning by Gammalin, when there was evidence that p.w.2, on his own admission with others administered other native medicine to the deceased before she died.” .

Learned counsel on both sides adopted their briefs and also addressed us orally in line with their briefs.

The gist of the first complaint of the appellant is that the learned trial Judge abandoned his impartial role as an umpire in the case before him and descended into the arena of the conflict. So, the Court of Appeal was in error to have held that it was wrong for the learned Judge to jump into the arena and in the same breath that it could not be said that he had shown any bias by his questions or preventing the appellant and her witness from giving evidence in their own ways.

Learned counsel for the respondent, while not disputing that the learned trial Judge descended into the arena, submitted that the trial Judge had not shown any bias by his questions because the extensive cross-examination by him did not affect the facts established by the witnesses and the confessional statement of the appellant. These questions, he submitted, were designed to enable the trial Judge to clarify ambiguities. Further, he submitted that judicial intervention which may lead to the quashing of a conviction are:

(a)     those which make it impossible for counsel to present the case properly; and

(b)     those which have the effect of preventing the accused from doing, himself justice and telling his story his own way.

In support, he cited the case of R. v. Hamilton (1969) C.L.R. 486, also Section-222 of the Evidence Act and 200 of the Criminal Procedure Act. The learned Judge, he submitted, was entitled to express his opinion on the facts of the case by his remarks after passing sentence.

Now, there is no dispute as to the fact that the learned trial Judge descended into the arena of the conflict. The Court of Appeal so found and the learned counsel for the respondent conceded the fact. A perusal-of the record confirm the spread, constancy and intensity of the only witness for the defence, whose cross- examination by the court runs to nearly two pages. The cross-examination of the appellant herself by the court runs to well over one page of typescript. Some of the  questions are so incisive and destabilizing that it is at once clear that the learned  counsel for respondent could not be correct when he said that the learned Judge was merely clearing ambiguities. Significantly, the learned Judge in his judgment freely , referred to these far reaching cross-examinations by himself and, indeed use it as determinants for the credibility of witnesses and for resolution of issues of fact contested before him.

On the above state of the issue, two questions arise, namely: could a trial Judge in a criminal case rightly go as far as the learned trial Judge did in this case, and if the answer is “no”, as I believe it is, what is the effect on the proceedings. In my opinion the first question brings in its wake a recrudescence of the full implications of our adversary system of administration of justice, in particular the role of a judge in the system. I shall be content to repeat what I said recently about this in the case of Sunday Okoduwa & Ors. v. The State: (1988) 2 N.W.L.R. (part 76) 333, at pp. 354 -355, where I stated: . ,

“There are certain fundamental norms in the system of the adversary system, in contradiction to the inquisitorial system. In that adversary system parties, with their counsel, and the judge have their respective roles to play. Basically, it is the role of the judge to hold the case on the evidence brought by both sides and in accordance with the rules of the particular court and the procedure and practice chosen by the parties in accordance with those rules. Under no circumstances must a judge under the system do anything which can give the impression that he has descended into the arena, as, obviously necessary inference from all the decided cases on the point. See, for example Fallon v Calvert (1960) 2 Q.B. 201 at p. 204 In re Enoch v. Zarctsky Bock & Co. ‘s Arbitration (1910) 1 K.B. 327. Jones v. National Coal Board (1957) 2 All E.R. 155 Omoregbe v. Lawani (1980) 3 – 4 S.C. 108 at pp. 120 -121. In re Enock’s Case (supra), Fletcher- Moulton, L.J., at p. 627 summarised the underlying principle where he said;

“A judge has nothing to do with the getting up of a case.”

See also Uso v. Commissioner of Police (1972) 11 S.C. 37, p. 46 It is I believe, from this context that we should consider the views of the Court of Appeal and the learned counsel for the respondent in this case

Now the learned Justice of the Court of Appeal, Musdapher. J.C.A., with whom Ikwechegh and Ajose-Adeogun, JJ.C.A., agreed, said:

“The complaint here is that the Learned trial Judge personally took over the cross-examination of the appellant and her only witness. This, the learned Counsel submits, occasioned a miscarriage of justice. It is wrong for a trial Judge to jump into the arena and appear to be eager to help one of the parties to the dispute he is adjudicating, in which case an appeal Court might hold that a miscarriage of justice was occasioned. See USO V. COMMISSIONER OF POLICE (1972) 1 FS.C. 37. In the instant case, I cannot say that the Judge had shown any bias by his questions, nor would it be correct to say that be had asked too many questions. It is not shown or alleged that by the questions the Judge had put to the witnesses, he had made it impossible or difficult for the Counsel to present the case adequately or properly. Nor was it also shown that the questions asked had the effect of preventing the appellant and her witnesses from giving evidence in their own ways?”

Let me say straight away that from what I have said above, it cannot be rightly said that the learned Judge did not ask too many questions. He did.

Also, as I have stated, those questions were very probing and searching and were not even confined to facts which the parties themselves has placed before the court. They were certainly not limited to questions intended and designed to clear ambiguities or to fill up gaps. Secondly, once it is found that the questions went that far, the impression must be created in the minds of right-thinking members of the society who were watching the proceedings that the learned trial Judge had taken sides with the prosecution against the appellant. As it is so, it is no longer a question of whether the learned Judge had, by those questions, made it impossible for counsel for the appellant to present her case or preventing the appellant or her witnesses from giving their evidence their own way. The decisive question becomes what image of justice has been created? Does justice really seem to have been done?

For the only satisfactory standard of justice acceptable in our system is one in which justice is not only done but also manifestly and undoubtedly seems to have been done. As Blackburn, C.J., said in R. V. Rand (1866) L.R. 1 Q.B.

230: –

“It is not only of some importance, but is also of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

See also R. v. Sussex Justices, ex p. McCarthy (1924) 1 K.B. 256, per Lord Hewart p. 259. In that context, once it is shown, as in this case, that a trial Judge has turned both a prosecutor and a judge at the same time, the image of even-handed justice is destroyed and real likelihood of bias is established.

It is not necessary, indeed, it is undesirable for the purpose to investigate the state of mind of the judge.

As Lord Esher put it rather succinctly in Allison v. General Council of Medical Education-(1894) 1 Q.B. 750, a.. pp. 758 – 9: .

“The question is to be one of substance and fact in the particular case. What is the fact which has to be decided? If his relation is such that by no possibility he can be biased, then it seems clear that there is no objection to his acting. The question is not, whether in fact he was or was not biased.

The Court cannot inquire into that. There is something between these two propositions. In the administration of justice, whether by a recognised legal Court by persons who, although not a legal public Court, are acting in a similar capacity, public policy requires that, in order that there should be no doubt about the purity of the administration, any person who is to take part in it should not, be in such a position that he might be suspected of being biased. To use the language of Meller, J., in Reg. v. Allen (1), ”It is highly desirable that justice should be administered by persons who cannot be suspected of improper motives.”

See also Metropolitan Property Co. v Lannon (1969) 1 Q.B. 577, at p. 589. From all these and other leading cases on the point, I am of the view that if – and I must, leave it at this because I have not laid my hand at the report much as I tried to – the , principles in the case of R. v. Hamilton (1969) C.L.R. 486 are as set out in the respondent’s brief, then it is against the run of authoritative pronouncements on the  point and does not represent the law. I may again repeat and adopt as my own the  statement of principle by the Lord President (Clyde) in the Court of Sessions in Barrs v British Wool Marketing Board (1957) S.C. 72, at p. 82:

”It is not a question of whether r the tribunal has arrived at a fair result – -the question is, whether r the tribunal has dealt fairly and equally with the parties before it in arriving at the result.”

The learned counsel for the respondent has further sought to rely upon the fact that a trial judge: under Section 222 of the Evidence Act and section 200 of the Criminal Procedure Act, has got very wide powers to ask any questions he pleases from any witness, including an accused person. Counsel did not, however, appear to have recognised the fact that down the years our courts have defined the scope and limitations of those provisions with reference to the power of a trial court to ask questions. Decisions in those cases shown that the powers of the Judge to ask questions under the provisions arc not unlimited. Rather they are limited by the implications of the adversary system we operate, the absolute need for impartiality, in fact and in appearance, on the part of the judge and, generally, the principles of fair hearing enshrined in our Constitution. It is therefore recognised that he can properly ask questions himself to get a clarification to answers given to questions asked by one of the parties (See Lawrence Agbaje v. The Republic (1964) 1 All NL.R. 259, p.297); to clarify a point that has arisen ex improviso such as where an accused person has introduced a new issue (See Rex. V. Asuguo Edem & Ors. (1943) 9 W.A,C.A. 25; West v. Police (1952) 20 N.L.R. 71). But it would be wrong and contrary to the expected impartial role of a judge in our adversary system and the principle or fair hearing, which after all means the same thing as fair trial, if, as

In this case, the judge who is expected to play the role of an impartial umpire uses the section as an unbridled licence to descend into the arena of the conflict and play the role of a prosecutor by asking probing and destabilizing questions which he later relied upon to resolve issues of fact in favour of the prosecution. In Nwagbo Igwe & Anor. v. The Queen (1959) 4F.S.C. 206 in a case in which, in the absence of the Prosecution, the judge took over the prosecution and eventually convicted the appellant the Federal Supreme Court held that as it could not be said, in a situation in which a person was judge and prosecutor, that the appellants were tried in

In atmosphere free from bias the conviction must be quashed. See also R. V . Adau v. Haji Jama (1948) A.C. 225 where it was held that such a person could not escape an unconscious bias in favour of accepting the evidence called for the prosecution. Other cases decided In other jurisdictions show precisely the same trend. The learned counsel for the appellant, rightly, referred us to the following cases, namely:

Jones v. National Coal Board (1957) 2 Q.B. 55, p.61; Yuill v. Yuill (1945) I All E.R. 183, p. 198; R.v. Caine (1936) 25 Cr. App. R. 204; and R.v Bateman (1946) 31 Cr. App.R. I06.

For all I have said above, this ground succeeds. A clear case of mistrial has been made out.

An answer to the second main question above, that is the result of the role played by the learned trial Judge in this case, necessitates an answer to the question: what is the result of a mistrial. In Sunday Okoduwa & Ors. v The State (supra) this Court came to the conclusion that the result of a mistrial  depends very much on the facts of a particular case, having due regard to the five criteria laid down by the Federal Supreme Court in the case of Abodundu Ors. v. The Queen (1959) 4 F.S.C 70, at pp. 73 – 74.

These are:

(a)     that there has been an error in law or an irregularity in procedure of such a character that on the one hand the trial is not rendered a nullity and on the other this Court is unable to say that there has been no miscarriage of justice, and to invoke the proviso to section 11 (I) of the Ordinance – which is in pari materia with section 26 (I) of the Supreme Court Act, 1960; .

(b)     that the evidence taken as a whole discloses a substantial case against the appellant;

(c)     that there are no special circumstances as would render it oppressive to put the appellant on trial a second time;

(d)     that the offence of which the appellant has been convicted is not merely trivial;

(e)     that to refuse an order for retrial would occasion a greater miscarriage of justice than to grant it –

These five conditions must co-exist before 1 should order a retrial:

See Abu Akwa v. State (1969) 1 All N.L.R. 133, p. 137; Aigbe & Anor v. The State (1976)9 – 10 S.C. 77, at pp. 93-94.

It is on the’ basis of these principles that I shall now consider the other two issues to be determined in this appeal.

The gist of the third issue for determination is that, the above mistrial apart, the prosecution did not discharge the burden of proof incumbent on it to prove the case beyond reasonable doubt After a careful reading of the record and the briefs of counsel on both sides and listening to counsel it appears to me that this point is clearly made. For it is now a settled point in our law that it is the duty of the prosecution in a criminal case to prove its case by evidence of such a quality and quantity as to leave the court in no reasonable doubt as to the guilt of the accused: of the sum total of the evidence is that the accused probably committed the offence then the requisite standard of proof has not been attended. See Hycienth Egbe v. The King (1950) 13 W.A.C. A. l05, at p. 106. In a murder ease, such as this, that burden is not discharged unless the prosecution establishes not only the case of death but also that the act of the appellant caused the death of the deceased; See Philip Omogodo v. The State (]981) 5 S.C. 5, at pp. 26 – 27; R. V. Samuel Abengowe 3 W.A.C.A. 85; Raymond Ozo v. The State (]97.1), All N.L.R. 1]1, p. 115. If the prosecution only succeeds to prove that the act of the appellant could have caused the death of the deceased; that standard of proof has not been attained: See Frank Onyenankeya v. The State (]9M) I All N.L.R. ]5],atp. ]53.

In the instant case, it appears to me that, that standard was not attained, for a number of reasons. What the accepted evidence succeeded in showing was that the appellant admitted that she added Gammalin 20, a poison, to the deceased’s bottle of medicine and she consumed it. There was no evidence on record either that Gammalin 20 could kill a human being or, more importantly, that the deceased died of Gammalin 20 poisoning. The report of the Forensic Expert, Exhibit E, does not say so. Although there was evidence that a post-mortem examination was performed on the body of the deceased, the result of the examination was not in evidence and the doctor who performed the post-mortem examination was not called nor was the failure to call him explained. Indeed, in that state of the fact. I feel entitled to draw the necessary presumption under section 148 (d) of the Evidence Act that the prosecution would have, if produced; been unfavorable to them who have with held it. An issue was raised in argument as to whether medical evidence was in fact essential in the instant case. It is now trite that medical evidence is not essential in all cases of murder and that the cause of death could, in fact, be inferred from circumstances: for which see Kato Dan Adamu v. Kano N.A. (1956) 1 F.S.C. 25; Mgboko v The State(]972) ] S.C. 123; Akpan v. The State  (1972) 4 S.C. 6), It is my view, however, that in a case like this, in which the allegation is that the deceased died of poison allegedly administered a number of days before her death and evidence shown that, in the meantime some other concoctions were given to her and she subsequently underwent medical treatment in hospitals between the taking of the alleged poison and her death, it is of utmost  importance that the prosecution must prove not only that the appellant administered the alleged poison on the deceased but also, by medical and scientific evidence, that the alleged poison could and did cause or accelerate the deceased’s death. It looks to me that the principle in the case of Sunmola Ishola v. The State (1969) N.M.L.R. 259, that an admission by an accused person that the plant he had in his possession was Indian hemp did not excuse the prosecution from proving , by chemical or scientific analysis of the plants that it belonged to the genus cannabis applies in this case, mutatis mutandis. The prosecution has to prove also that what was analysed was what was taken from the appellant. These proofs were not forthcoming in this case. This is fatal to their case. Secondly, the Ijebu man who prepared the medicine in the schnappes bottle was a necessary witness to testify that his preparation did not contain Gammalin 20. But he was not called, nor was failure to call him explained. The same presumption under section 148 (d) of the Evidence Act could be invoked against the prosecution.

Thirdly, there were such yawning gaps in the evidence such laxities in the custody of both the medicine in the schnappes bottle and the remnant of the Gammalin 20 as to render any evidence about ‘them doubtful, if not completely valueless. For examples, they were not even tendered as exhibits; according to p. w .1., the schnappes bottle was brought to p. w.3 by the brother of pow .2., Chief Akinfe who was himself a suspect; the police exhibit-keeper who received the schnappes bottle and the remnant of the Gammalin 20 did not testify and his absence was not explained by evidence by the police: the judge was left to speculate about it; it was not clear who collected the medicines and how they were kept until they found their ways into the hands of the police; even the forensic laboratory form at pages 8 I -82 of the record was not properly completed. In sum, there were such gross and fatal irregularities in the ‘handling of the two medicines that any evidence depending on them should not have been considered sufficient to hang a rat.

Fourthly, there was in fact, no admissible evidence that the deceased took the poisoned medicine. The learned Judge relied on the evidence that the deceased stated, when she was vomiting, that it was the medicine in the schnappes bottle which she took that caused her trouble. But what she said when and because she was vomiting does not qualify as a dying declaration under Section 33 of the Evidence Act because there was nothing to show that at the time she made the statement she believed herself to be in danger of approaching death. A dying declaration, it must be noted, is an exception to the hear say-rule. The exception can only take effect on the principle that it is a declaration made in extremity, when the party is at the point of death and every hope of life is gone so that motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth: R. V . Woodcock (1789)168 E.R. 353; See also Orshior Kuse v. The State (1969) N.M. L.R. 153. In the absence of proof of a settled hopeless expectation of death such a statement is hearsay and inadmissible. Fifthly: Obviously conscious of the weaknesses of the case for the prosecution the learned judge had to content himself with finding subterfuge in the fact that the appellant “confessed” to the crime by reason of her “voluntary” statement, Exh. C (translated to Exh. CI). Of course where an extra-judicial confession has been proved, and is positive and not equivocal, and amounts to an admission of guilt The fact that the accused has retracted the confession, truly not necessarily make it inadmissible’ see R. V Itule (1961) All N.LR 462, .p. 465. But before a conviction can be properly founded on such a retracted confession, it is desirable to have some evidence outside the confession which would make it probable that the confession was true: Sule Iyanda Salawu v. The State (1971) N.M.L.R. 249. But on the first test of voluntariness, I have found it difficult to resist the temptation of the inference that the learned trial Judge did not make proper use of his opportunity, of his having seen and heard the witnesses testify. As the learned counsel for the appellant pointed out, as soon as possible after the arrest of the appellant, she made the statement Exh. B, translation Exh.B 1, in which she denied the commission of the offence. Nothing was shown to have made her change her mind. Yet, according to p.w.3, Chief Adigun Asoga, the appellant, p. w. 2 (her husband and also a suspect in the murder case) and others arrived in his house at about 6 a.m. on 11/2/85. He did not know them before. He did not torture, prompt threaten or cajole the appellant to say anything in his house to terrify her. In particular, he denied the suggestion that he had tortured her for seven days before the alleged confession. Yet, according to him, within five minutes of their arrival in his house she knelt down and confessed to him that she committed the offence and begged him to save her life. That was the beginning of the “confession” which the p.w.3 turned over to the police. The learned Judge did not  consider the improbabilities of this story of p. w. 3. He did not advert in his judgment to the fact that the police were: able to find sufficient prima facie evidence to charge p. w.3 with the offence of trial by ordeal as charge No. MAK/26C/86 (Exh.G.). He did not consider the sharp conflict between the denial statement on caution (Exh.B) which was made when the matter was, still fresh in the appellant’s mind and the so- called confession produced in the above circumstances. It appears to me that by failing to advert to these important facts and circumstances before deciding to believe the so-called, confession the learned Judge failed to take proper advantage of his having seen and heard the witnesses and cannot really be said to have evaluated the evidence. As has been reiterated by this Court on several occasions, a court of trial is master of its findings on primary facts, particularly when its findings are based on its impressions of witnesses whom it listened to and watched testify. Ordinarily when it properly exercises its power in that regard an appellate court will not interfere. See: Efe v The State (1976) 11 S.C.75.

But the mere fact that a trial Judge states that he “believes” or “disbelieves” a witness will not suffice. As the learned ,Judge did not consider the above facts and circumstances before believing the “confession”‘ I should disregard it because he did not consider the above facts which were capable of casting some doubts on the said confession: See on this Jamani Olasoji & Anor. v. The Attorney-General of Western Nigeria (1965) N.M.L.R. l1I,at p.112.

Applying the above facts to this case, it appears to me that without doubt, this Court has got the power to order a trial de novo where there has been a mistrial;

See: The State v. John Babatunde Lopez (1968) 1 All N.L.R. 356; also: Okoduwa & Ors. v. The State (Supra). .,

But where, as in this case against an appellant is so studded with such fundamental  lapses and inadequacies that to order a retrial is to aid the prosecution correct their serious mistakes, then an essential precondition in the principle in the Case of Abodundu (supra) is lacking. To order a retrial in such a case will result in injustice to the successful appellant. For all I have said above, I simply allowed the appeal and discharged and acquitted the appellant. I set aside the judgments of the High Court, Akure, convicting her of murder and sentencing her to death and of the Court of Appeal, Benin City, confirming it.

KAYODE ESO, J.S.C.

In this case, the point I would wish to discuss is the trial Judge’s role of a cross-examiner in the case before him. The facts are well stated in the

Reasons for judgment given by my learned brother Nnaemeka-Agu J .S.C. and I would not add to them except as they are necessary to emphasise the point I would discuss.

Let me go straight to the incidents amounting to the Judge’s role and I will go through all the witnesses to show these. The first prosecution witness was Rufus Olowoduti the brother of the deceased. The witness gave evidence as to what his sister, the deceased told him as regards the medicine she took. He was cross-examined by the defence counsel. The Judge did not intervene.

The second prosecution witness was the husband of the deceased who maintained that his wife died as a result of the medicine she took. Cross-examined at length by the defence, the Court however did not intervene.

Now to the third prosecution witness, one Adigun Asora, a traditional healer was the star witness. He gave evidence to the effect that the accused confessed to him that she was the killer of the deceased. He said he taped the confessional statement. The confession, the witness said was in the presence of other people. The witness said he handed the tape recording to the police.

This man was severely cross-examined by the defence witness. During cross-examination the witness said the medicine shown to him by the accused was in a rubber container which he handed to the police.

With this evidence given under cross-examination, the learned trial Judge did not seem happy or should I say not satisfied, for he went and questioned the witness. He referred to his questioning as “Cross-examination”. This is what is contained in the record –

“Cross- Examination by Court – when the rubber containing the weed killer was produced accused identified it as the medicine she mixed with the drug being taken by the deceased but she said she did not know that the deceased would die.”

One wonders as to what would be the reason for this ‘:Cross-examination”.

But then, he was the trial Judge. He might have had reasons which would, later be apparent for in holding the scale, or rather the balance between parties to a dispute in the adversarial contest which we have adopted under the common law, the Judge as the impartial arbiter is certainly not a mechanic.

He tends to deep thinking and- resolving a contest” between the two adversaries. He may wish to bring out impartially what appears to be obscure. In other words he is not expected to be a dummy, recording evidence without uttering a word. What is wrong and what is unacceptable in an adversarial contest, is for the Judge, who shall remain an impartial referee throughout, an umpire not only to be respected but to be trusted in ~arriving at a decision~ which necessarily must hurt one party, not to jump into the arena, take sides – with one of the contestants. For this strikes dismay to onlookers. It is a drama that drowns justice on its administration. And having said all these, let us see the other part played by the judge in this drama. For the reason for the single incident of his

.. “cross-examination” of the star witness is yet to unfold.

The fourth witness gave evidence, cross-examined and re-examined. The Judge did not interfere.

But then, the fifth prosecution witness was the policeman to whom the star witness handed the tape containing the alleged confession. This then must be a very important witness. He gave evidence of his investigation of the complaint, he took

statement from the accused which was challenged. There was a trial within trial.

The witness was cross-examined over this delicate issue. For a trial within trial, being a trial of a challenge to a statement made by an accused person to the police must be handed with care. A person accused of an offence is alleged to have confessed to the police that he committed the offence but that accused person challenged the making of the statement. Here a Judge engaged in such trial must be very careful. To start with, it is not a normal occurrence for people to confess to their crime and where he is alleged to have so confessed, but he challenged such confession ever having been made, trial of the issue assumes grave importance, and not a matter of catechism to be gone through as a matter of course.

In this mini-trial, the prosecution presented its case, the Judge did not interfere with either examination in chief or cross-examination thereof. But when the defence presented her own case in chief as regards her denial of the confession and she was cross-examined by the State Counsel in four lines, the Judge went with his own

“cross-examination” for so he called it. The cross-examination by the State Counsel and that by the Judge went on thus-

“Cross-Examination by State Counsel

I was taken to Police Station on 11/2/85 on 13/3/85 I asked p.w.1 Sgt. Dada to take me to the hospital. My statement was not obtained on 11/2/85. I saw Mr. lbiloye (Sgt) on13/2/85. My Statement was taken only at Idanre. .

Cross-Examination by Court -1 had been to the hospital before 11/2/85. By then!

I used to obtain hospital card from the hospital. 1 don’t know if Sgt Dada saw the 1st statement 1 made to Police before obtaining this statement from me ‘

Exhibit Z in the trial within trial.”

To appreciate the potency of this cross-examination by the Judge, the accused had first made a statement to the Police wherein she denied knowing what killed the deceased (Exh. B). This was the statement the Judge would like to know whether or not the 5th prosecution witness Sgt. Dada saw before taking the so-called confessional statement Ex. C that is, the statement admitted after the trial within trial.

The “cross-examination” by the Judge of this accused in the mini-trial seems more potent than the cross-examination by the State Counsel. it was far reaching for it would make a lot of difference whether the 5th prosecution witness saw Exhibit denying the offence before obtaining Ex. C. But what is Cross-examination? I

Section 187(2) of the Evidence Act provides –

“The examination of a witness by a party other than the party who calls him shall be called his cross-examination.”

“Party other than the party” who calls the witness herein must be the adversary, certainly not the court, for the Court is never a party to a case.

Section 222 of the Act which gives powers to the Court to put questions or order production never refers to or contemplates the Judge to be a party. It would if that were so, cease to be a rear adversarial contest under the umpireship of a Judge. The Judge himself, if he considers himself to be a party, must take sides, when he gets into the arena, with only one of the two sides. Of course, once he descends into the arena, the aura of impartiality ceases.

He presents only a sham of justice, he becomes a poor actor who would never receive ovation, not even from the party with whom he takes sides.

Why did the Judge call his questioning cross-examination? The prima facie answer must also be in the form of a question. Does he believe himself to be a party? Answer, of course, will be no. But he cuts the picture of a party as defined under S.187 (2) of the Evidence Act. And that it is dangerous to the administration of justice of which he is supposed to sit at the apex and not hold out gloves in the arena’ Did he not in fact take sides? Of course he did.

For even in his judgment, he relied heavily on this intensive “cross-examination.” I will come to this anon.

Meanwhile, when the defence opened its case, the accused was called into the witness box. She gave her evidence-in-chief and was duly cross-examined by the State Counsel. This cross-examination took up thirty-nine lines of the Record. The Judge did not seem satisfied for he followed with twenty-six lines of his own cross-examination’ Let us state some of the answers given by the accused to the cross-examination by the Court, to appreciate how savagely though the cross-examination must have been directed against the accused.

“The native medicine given to her when she started vomiting stopped the vomiting. I made Exhibit B in Idanre before going to the house of Asoga . Leaving Asoga’s house we came to State C.I.D. Akure. The issue of torture in Asoga’s house is important to my case. The description of the cane used in beating me is also important to my case. The issue of loss of hearing was also important to my case. The issue of being detained and chained for 7 days in Asoga’s house is equally important to my case. I did not inform Police at State C.I.D. Akure about these important points because I was not well. I had ear pain whenever I suffered ear pain I would not be able to talk. I was treated at the State Hospital Akure I fully recovered in prison custody. I did not inform police at State C.I.D. Akure about my experience at Asoga’s place. I told one woman warder about my experience at Asoga’s place. I don’t know her name. I have been with this for about 18 months. I now know the name of the wardress to be Moji at Ado-Ekiti Prison. Those who testified against me including my husband that I confessed killing the deceased ganged up together to lie against me. I can’t remember if I told police at the State C.I.D. Akure that Z was 24 years old. My husband was present when I was being beaten at Asoga’s house but he did nothing. He merely watched the incident.

The cross-examination went to credibility, credit, reliability and even character

And that by a Judge who was there to be impartial. To stop here for a moment, what would be the reaction of onlookers in the Court to this-unabated fury by the Judge?

Certainly to note that by the brutality in the cross-examination, Justice had flown to brutish breasts!

Of course, that was not all the dramatis persona did. The 1st defence witness gave evidence in chief. There were twenty one lines of this examination. The State Counsel’s cross-examination took thirty lines. How about the umpire’s cross- examination of a defence witness? He went on for forty five lines and savagely to the kill. Answers like –

‘I did not see marks of violence on her when accused told me she was beaten by Asoga. I told Dada p.w. 5 that I was chained and that my daughter was also chained and beaten up in Asoga’s house. I did not tell any other policeman of the treatment given to me and my daughter even when I confirm that I have not settled any quarrel between accused and her husband p. w.2 I also do not know of any person who has settled any quarrel between them.

Despite this p.w.2 can tell lies against the accused. I now say my daughter and p. w.2 used to quarrel. They quarreled about 2 times and I settled the quarrels for them. At first the quarrel was about the refusal of the accused to follow the husband to his farm. The 2nd time accused came to report another quarrel against the husband that the husband wanted to cause quarrel between accused and Mofesola Akinfe. I don’t believe p.w. 2 can come to tell lies against the accused because of the 2 previous quarrels.” .

But even more!

P.W.2 can conspire with police and others, to tell lies against the accused because P.W .’2 Chief Akinfe does not like his wife. 1 say this because P.W.2, his relations and those of Mofesola Akinfe ganged up against my daughter in accusing her of killing the deceased. If it was the accused that was killed and I had cause to suspect foul play I would behave as P. W. 2, his relations and the relations of Mofesola Akinfe behaved, Despite all these P. W 2 can conspire with others known or unknown against the accused because p. w. 2 does not like the accused. When accused was first remanded I went to see her at Ado-Ekiti prison. 1 saw her. I did not discuss with her. She did not discuss with me.

‘Accused was well and no evidence of ill treatment 1 left Asoga’s place the 2nd

day. I now say that my daughter stayed in Asoga’s place for 7 days. During the 7 days I went to see her. I did not report the detention for 7 days to police.

To say the least, no Director of Public Prosecutions could have done better!

The learned trial Judge was proud of his cross-examination. There is no doubt that it was a feat! He referred in his judgment to his cross-examination of the 3rd prosecution witness – the star witness, his cross-examination of the accused in the trial within trial, using the words “under cross-examination by the court, this witness admitted ”

after which he said, _in that judgment, that he accepted the evidence of the Prosecution and rejected the evidence of the defence.

It was when the judge came to the examination of the defence case that he excelled himself as a participes in the arena. The record speaks for itself.

After recounting the evidence in chief and cross-examination by the Prosecuting counsel the judge dwelt on his own cross-examination –

“Under cross-examination by court, this witness confirmed that the native medicine given to the deceased when she started vomiting slopped the vomiting. She said she made Exhibit B. in Idanre before going to the house of Asoga, and that on leaving Asoga’s house they went to the Stale C.I.D. Akure. She said the issue of torture in Asoga’s house was important to her case, so also was the description of the cane used in beating her. The issue of loss of hearing and also the issue of being detained and chained for 7 days in Asoga’s house yet she admitted she did not inform the police at State C.I.D. Akure about these important points, the excuse she gave was that she was not well because she had ear pain.

According to her, whenever she suffered ear pain, she would not be able to talk. She said she was treated at the State Hospital, Akure and fully recovered in Police custody. She said she did not inform police at State C.I.D. Akure about her experience at Asoga’s place. Although she said she told one-woman warder whose name she did not know about this experience. She had been with this wardress for about 18 months, later  she said she knew the name of the wardress to be Moji at Ado-Ekiti Prison. She said those who testified against her including her husband that she confessed killing the deceased ganged up together to lie against her. She said she could not remember if she told police at the State C.I.D.

Akure that she was 24 years old. She said her husband though- present when she was being beaten at Asoga’s house did nothing, that he merely watched the incident. “- ‘

And as regards the testimony of the defence witness the Judge dealt with the review of the cross-examination by the State counsel in twenty three line lines and his own cross-examination in forty three lines! Indeed the feat-Of the Judge with all respect would appear to be an all time record! .

Little wonder then that the Judge after convicting the accused principally on the success of his cross-examination of the witnesses, particularly defence witness, added .

This is murder by poisoning done deliberately without any cause to excite personal anger, hatred, or revenge. Personally, I have nothing to urge in favour of this accused she is recommended for her merited punishment.

Musdapher J .C.A. delivering the lead judgment of the Court of Appeal held –

“Next, the learned Counsel for the appellant argued ground of appeal No.4. The complaint here is that the learned trial judge personally took over the cross- examination of the appellant and her only witness. This; the learned counsel submits, occasioned a miscarriage of justice. While it is wrong for a trial judge to jump into the arena and appear to be eager to help one of the parties ‘to the dispute he is adjudicating, in which case an Appeal Court might hold that a miscarriage of justice was occasioned. See Uso v. Commissioner of Police (I972) 11 S.C. 37.” ‘

However the learned Justice of the Court of Appeal held the Judge had not shown bias in this case by his questions. With respect to the learned Justice: of the Court of Appeal I find it difficult to understand what would amount to bias if what I have stated above about the conduct of the case by the judge is not bias!

What is bias? It is showing an act. of partiality. What is proof of bias? It is what an ordinary reasonable by-stander would regard as bias. What-reasonable man would watch the trial as I have revealed who would go home and say that justice had been done to the accused. What reasonable man would not wonder what the concern of the judge was in his display of forensic ability against an accused person who seeks justice before him? What reasonable man would not wonder which of the two, the State Counselor the judge was the prosecutor in this case? It is with respect a ‘sham of trial and with respect an immature approach to the administration of justice to set out for a kill against any party that stands in the imaginary scale held by a judge.

For these reasons and the Reasons given by my learned brother Nnaemeka-Agu, J.S.C., I allowed the appeal on 5th May, 1988.

My learned brother Nnaemeka-Agu has set out the reasons we had for giving the Order we made on that day. I am in complete agreement and would adopt those reasons for the order we made.

 

NNAMANI, J.S.C. :

On the 5th day of May, 1988 this appeal was taken by this Court. Having heard’

learned counsel to the parties, I was satisfied that the appeal had merit. I, therefore, allowed it and discharged and acquitted the appellant. I indicated that I would give my reasons for this judgment today. I now give my reasons.

In his appeal to this Court, learned counsel to the appellant, Mr. Shola Rhodes, : set down 3 issues for determination. These were:-

(I)      Whether it can be said that the appellant was tried in an atmosphere in which it was possible for her to feel that she was tried by a judge whose mind was unbiased by his having assumed the role of the prosecutor arid the judge during the trial.

(2)     Whether the conviction of the Appellant as confirmed by the court of Appeal can be said to be safe on the face of the role played by P. W .3, the traditional healer and diviner in extorting confession from the appellant in the traditional way.

(3)     Whether it was safe for the Court of Appeal to have confirmed the conviction of the Appellant, when there was no medical evidence to confirm the outcome of the post-mortem on the deceased that she died as a result of poisoning by Gammalin, when there was evidence that p.w.2 on his own admission with others administered other native medicine to the deceased before she died.”

The third issue could have been widened to whether in all the circumstances this case it was safe to convict the appellant.

I have before now had advantage of reading in draft the reasons for judgment just delivered by my learned brother, Nnaemeka-Agu, J.S.C. and I entirely agree with them. I adopt them as my own and will only make concurring comments.

The first issue for determination clearly refers to the manner the learned trial judge, Adetosoye, J., handled the appellant’s trial. Learned counsel to the appellant submitted that the learned trial judge descended into the arena and assumed the role of prosecutor and judge all rolled into one. Learned counsel referred the Court to pages 13, 18,29 – 30, 52 and 55. On page 13, following cross-examination by the Court, the so-called diviner, p. w. 3, said it,

“When the rubber container containing the weed killer was produced accused identified it as the medicine she mixed with the drug being taken by the deceased she did not know that the deceased would die”.

the learned trial judge thus extracted this testimony which was so damnifying to the appellant. At page 18 he cross-examined the accused person during the trial in a trial. At pages 29-30 i.e. 2 pages, the learned trial judge rigorously cross-examined the mother of the appellant who was defence witness . Having completed these bits of cross-examination, the learned trial judge proceeded to use the results of that cross-examination to bolster the case against the appellant. This is clear on pages 52 and 55 of the record.

It seems to mc that the learned trial judge indeed descended into the arena.

In our system of criminal adjudication the judge has to hold the balance between the prosecution and the defence. To do anything which gives advantage to the prosecution is to tilt the balance of justice rather fatally. A trial in which such open and prolonged intervention by the judge takes place is everything other than fair for such proceedings induce in the accused person fear. Such an accused person cannot be said to have every opportunity to put her Own case to the Court. A similar situation arose in the recent case of Sunday Okoduwa and Ors. v. The State (1988) 2 N. W .L.R. 333. There this Court, while conceding that the learned trial judge could legitimately ask few questions for purposes of clarification of some issues, deprecated the practice of wholly taking over of the prosecution. The complaint here seems to me well founded.

As regards issue 2, there is no doubt that the learned trial judge seemed impressed by the evidence of p.w.3, the so-called diviner. P.W.3 had said that as soon as appellant got into his house she confessed to the killing and was begging him to save her life. Against this was the testimony of the appellant that she was caned by the p. w. 3 and that she lost her hearing. She said she was chained for 7 days in an attempt to extract a confession from her. Her statement to the police Exhibit CCI which the learned trial judge accepted as confessional, was retracted in court. The learned trial judge nevertheless concluded that the appellant confessed to the killing.

He relied on the testimony of p.w. 2, appellant’s husband and p.w. 3 among others  as evidence outside the confessional statement tending to show that the statement was true.

As to the third issue, the evidence was that it was the second medicine in a bottle procured by deceased’s husband that the appellant is alleged to have confessed putting Gammalin into. There was no evidence that the deceased died of Gammalin poisoning. It is now trite that one of the ingredient of proof of murder is proof of cause of death. Medical evidence to establish this is desirable but not always necessary. But this is usually in cases where the cause of death is so obvious. One cannot dispense with medical evidence in a case such as this in which a substance is said to have been put into a bottle containing the deceased’s medicine and she died after taking it. It ought to have been established that it was the Gammalin that killed the deceased. Worse still, even if the Gammalin was the cause it could not be certain that it was the substance that was in the deceased’s medicine bottle that was sent to the Police. It was the deceased’s brother, who was at best a tainted party, who was alleged to have sent the remnants of the medicine to the police.

Incidentally, it was this same man and the appellant’s husband, a suspect of the murder, who took the appellant to p.w. 3’s house and extracted the miraculous

confession.

It was stated in evidence that the deceased took this medicine on 30/12/84 and started vomiting yet the medicine bottle was not sent to the hospital until 1/1/85.

Finally, the absence of the doctor’s post mortem report meant that one could not say what role, if any, the further native medicines p.w. 2 was alleged to have given to the deceased to stop the vomiting, could have played. In all the circumstances of this case, it would have been most unsafe to convict the appellant.

The only other thing that had to be considered was whether this Was a proper Case for a retrial as urged on this Court by the learned Director of Public Prosecution of Ondo State. It is clear that from the manner the learned trial judge conducted this trial, this was a mistrial and it could be said that the appellant ought be retried. In Abodundu and Ors v. The Queen (1959) 4 F.S.C. 70 at 73 – 74 the Federal Supreme:

Court laid down conditions for the order of retrial by an appellate Court. These principles have been followed in numerous cases since then. See Okafor v. Stale (1976) 5 S.C. 13; Ikhane v. Commissioner of Police (1977) 6 L5.C. 119and more  recently Okoduwa (Supra). I would think that (b), (c) and (e) are relevant here.

There are: (b) that leaving aside the errors or irregularity the evidence taken as a whole disclose a substantial case against the appellant. Surely, from what I have said above, the contradictions and the evidence in the case used to convict the appellant was not established anywhere near the standard required in a criminal case more so one carrying a capital sentence. (c) that there are no special circumstances as would render it oppressive to try the accused a second time.

Having regard to the evidence in this case, what with the harassment by the learned trial judge, the possible torture by p. w. 3, but more important, the weak case against the appellant, it would be oppressive to retry her. The appellant was first arrested early in 1985 and has been in custody since then.

(e) that to refuse an order for retrial would occasion a greater miscarriage of justice than to grant it. Here to grant it would be a grave injustice.

It was for these reasons and the more detailed reasons in the lead judgment aforementioned, that I allowed the appeal, set aside the judgment of the Court of Appeal which affirmed the earlier judgment of the High Court, and discharged and acquitted the appellant.

 

KARIBI-WHYTE, J.S.C. ,

The dismissal of the appeal of appellant to the Court of Appeal by that Court against her conviction for murder by the Ondo State High Court sitting at Akure was allowed by this court on the 5th May, 1988. I said on that day that I will give my reasons for allowing the appeal today. I hereby state the reasons.

I have read the judgment of my learned brother Nnaemeka-Agu,, J .S.C. in this appeal. I agree entirely with his reasoning. The judgment of my learned brother ,Nnaemeka-Agu,J .S.C. completely covered all the grounds of appeal. and in depth, I consider it unnecessary duplication to go over the same ground. I adopt the reasoning and conclusions in his judgment as my own.

KAWU,J.S.C.

After hearing arguments of counsel in this appeal on the 5lh day of May, 1988, we allowed the appeal of the appellant and discharged her. We then indicated that we would, today, give our reasons for doing so.

I have had the advantage of reading in draft the lead ‘Reasons for Judgment’ just delivered by my learned brother, Nnaemeka-Agu, J.S.C. I agree entirely with those reasons and will adopt them as my reasons for discharging the appellant on the 5th day of May, 1988..

Cases referred to:

1. R. v. Hamilton (1969) C,L.R. 486
2. Sunday Okoduwa & Ors. v. The State (1988) 2 N.W.L.R. pl. 76) 333.
3. Fallon v. Calvert (1960) 2 Q. B. 201.
4. Enoch v. Zaretsky Bock & Co.’s Arbitration (1910) 1 K.B. 327.
5. Jones v. National Coal Board (1957) 2 All E..R:155
6. Omoregbe v. Lawani (1980) 3 -4 S.C. 108.
7. Uso v. Commissioner of Police (1972) 11S.C 37
8. R. v. Rand (1866) L.R 1 Q. B. 230.
9. R. v. Sussex Justices, Ex p. McCarthy (1924) 1 K.B. 256.
10. Allison v. General Council of Medical Education (1894) 1 Q.B.
11. Metropolitan Property Co. v. Lannon (1969) 1 Q.B. 577.
12. Reg. v. Allan (1).
13. Barrs v. British Wool Marketing Board (1957) S.C. 72.
14. Lawrence Agbaje v. The Republic (1964) 1 All N.L.R. 295.p. 297)
15. Rex v. Asuquo Edem & Ors. (1943) 9 W.A.C.A. 25.
16. West v. Police (1952) 20 N.L.R. 71.
17. Nwagbo Igwe & Anor. v. The Queen (1959) 4 F.S.C. 206.
18. R. v. Adau Haji Jama (1948) A.C. 225.
19. Yuill v. Yuill (1945) 1 All E.R.183, p. 198.

20.R. v. Caine (1936) 25 Cr. App. R. 204.

21. R. v. Bateman (1946) 31 Cr. App. R.I06.
22. Abodundu &Ors. v. The Queen (1959) 4 F.S.C. 70.
23. Abu Akwa v. The State (1969) 1 All N.L.R. 133.
24. Aigbe & Anor. v. The State (1976) 9 – 10 S.C. 77.
25. Hycienth Egbe v. The King (1950) 13 W.A.C.105.

26.Phillip Mogodo v. The State (1981) 5 S.C. 5.

27. R. v. Samuel Abengowe 3 W.A.C.A. 85.
28. Frank Onyenankeya v. The State (1964) 1 All N. L.R. 151.

29.Kato Dan Adamu v. Kano N.A. (1956) 1 F.S.C.25.

30. Mgboko v. The State (1972) 2 S.C. 123.
31. Akpan v. The State (1972) 4 S.C. 6).

32.Raymond Ozo v. The State (1971), All N.L.R. 111.

33. Sunmola Ishola v. The State (1969) N.M.L.R. 259.

34- R V. Woodcock (1789) 168 E.R. 353.

35. Orshior Kuse v. The State (1969) N.M.L.R. 153.
36. R. v. Itule (1961) All N.L.R.462.
37. Sule Iyanda Salawu v. The State (1971) N.M.L.R. 249.
38. Efe v.The State (1976) 11 S.C. 75.

39.Jamani Olasoji & Anor. v. The Attorney-General of Western Nigeria (1965)N,M.L.R.111

40. The State v. John Babatunde Lopez (1968) 1 All N.L.R. 356.
41. Okafor v. The State (1976) 5 S.C. 13.
42. Ikhane v. Commissioner of Police (1977) 6 S.C. 119.