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FEDERAL SUPREME COURT OF NIGERIA
14TH FEBRUARY, 1959.
BEFORE THEIR LORDSHIPS
SIR ADETOKUNBO ADEMOLA, F.C.J. (Presided)
MYLES JOHN ABBOTT, F.J. (Read the Judgment of the Court)
LIONEL BRETT. F.J.
Mr. I. M. Lewis, Solicitor-General, -for the Respondent.
CRIMINAL LAW AND PROCEDURE:– Murder – Proof of – Where key prosecution witness is open to impeachment – Whether accused can be convicted based on his own confession – Duty of prosecution.
ETHICS – LEGAL PRACTITIONER: Capital crim cases – Duty of prosecution to present case with care which is always desirable – Attitude of court to failure thereof – legal effect thereof
ABBOTT, F.J (Delivering the Judgment of the Court):
The Applicant in this case was charged with two other persons, who were acquitted at the trial, with the murder of one Muhammadu Sale during the month of February 1958, and on the 10th February, 1959, we refused leave to appeal and now give our reasons for so doing.
The Solicitor-General who appeared for the respondent before us, conceded that the case in the Court below was not presented with that accuracy and care which is always desirable, particularly when the charge is a capital one, and he quite rightly drew our attention to the fact that one Adamu Karara in whose house the first prosecution witness said he slept with the applicant after the crime, was not called to substantiate that statement. The Solicitor-General also pointed out that the statement of the applicant to the Police, Exhibit “M.G.8,” alleges that one Kwene was implicated in the crime and in fact instructed him, the applicant, and others to kill the deceased. It appears from the record that certainly on one day during the trial Kwene was in Court, yet he also was not called. We would express our concurrence with the view of the Solicitor-General that it was desirable that both these witnesses should have been called during the course of the trial.
Exhibit “M.G.8” seeks closely to implicate the first prosecution witness in this murder. This witness gave a detailed account of the actual murder and swore that the applicant with the two men, who were acquitted, stabbed the deceased in the neck and in the stomach and that thereafter apparently the body was carried by the applicant and the two other men and the first prosecution witness to the river where it was thrown in.
The applicant in his evidence again sought to implicate the first prosecution witness, who, of course, denied any active part in the murder, but whose evidence in cross-examination at least is obviously open to adverse comment on the subject of the weapon used in the killing, though this apparent discrepancy may be due to faulty interpretation.
As the learned trial Judge said, the case against the applicant consists of the story of the first prosecution witness, and the applicant’s statement to the Police, which in addition to endeavouring to implicate the first prosecution witness, as we have said, admits the applicant himself took part in the murder, and the applicant’s own evidence at the trial in which he said he was present at the time of the commission of the crime.
The learned trial Judge carefully considered the statement, Exhibit “M.G.8,” and the evidence of the first prosecution witness and came to the conclusion that the confession of the applicant having taken part was true and also that the evidence of the first prosecution witness was true, although it had to be regarded in the circumstances with great caution. Having regard to those accusations the learned trial Judge found the applicant guilty of the murder as charged and we think that he was right in doing so, although, had he not gone so fully and carefully into the possible objections to accepting the evidence of the first prosecution witness, we might have felt that the evidence was not really strong enough to warrant a conviction of the applicant.
However, in all the circumstances and after full consideration we came to the conclusion that leave to appeal must be refused.