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F.S.C. 387/1961

12TH JANUARY, 1962

3PLR/1962/92 (FSC)



SIR ADETOKUNBO ADEMOLA, C.J.F. (Presided and Read the Judgment of the Court)




Appellant absent and unrepresented.

I.N. LEWIS, Q. C., Solicitor-General, (with him, MALLAM BELGORE) – for the Respondent.


CRIMINAL LAW – MURDER: – Proof of – Corroboration – Evidence of co-accused persons – Identification of accused person as connected with the crime – Unsworn evidence of minor – Identity parade – Proper ways to treat same  

PRACTICE AND PROCEDURE – APPEAL: –  Federal Supreme Court – Presence of appellant in criminal appe­als – Section 34 (b) of the Federal Supreme Court Ordinance – When pre­sence of appellant may be dispensed with

CHILDREN AND WOMEN LAW:- Children and Justice Administration – Murder arising from dastardly assault witnessed by two children – Identity parade for a child to pick out a killer – Propriety of depending on those evidence – Level of corroboration required –  Attitude of court to state of mind of child witness– Effect and level of support offered to young people involved in criminal proceedings


“We see no reason to differ from the opinion expressed by the learned trial Judge about the state of mind of a young child after witnessing such a dastardly act and also the fact that he had at all times indicated he could iden­tify the murderer, a Southerner.”


ADEMOLA, C.J.F. (Delivering the Judgment of the Court):

The appellant was on the 27th September, 1961, convicted in the High Court at Kaduna of the offence of culpable homicide under Section 221 of the Penal Code and sentenced to death. He appealed from that conviction, filing three grounds of appeal. On the form on which he filed his notice of appeal, the appellant stated he would like to be present at the hearing of his appeal. It was also stated on the form (usual form) that should the appellant desire to put the whole of his argument in support of his appeal in writing instead of present­ing it orally, he may do so in writing.

After receiving the hearing notice and indeed on 21st November, 1961, the appellant filed four long pages of closely typewritten matter, which he called “Additional Grounds of appeal” but which set forth arguments in support of his appeal.

On the 22nd November, 1961, after hearing notice had been served on the appellant, his appeal was called at Kaduna where the Court was sitting at that time (where incidentally the appellant was in prison). Mr. Sawyer who had appeared for the appellant in the Court below and who had been as­signed by the Court to argue the appellant’s case duly appeared. The appeal did not proceed because the appellant had then notified the Court (in writ­ing) that it was not his wish that Mr. Sawyer or any other Counsel should argue his appeal. In a letter dated 21st November, 1961, addressed to the Registrar of the Court, the appellant stated he had briefed a lawyer from his own town (Warri) to argue his appeal. As the appellant was entitled to coun­sel of his own choice, Mr. Sawyer was allowed to retire from the case. As the appellant stated that his Counsel was unable to be present that day, his ap­peal was adjourned till Thursday, the 30th November, 1961. On the 22nd November, 1961, the appellant notified the Court in writing that his Counsel would still be engaged in a bank theft case and would be unable to appear for him on the 30th November. He would like his case to be heard in Lagos when the Court moved to Lagos. On that day, the case was fixed for hearing in Lagos on the 8th December, 1961, and the appellant was duly notified by let­ter. Fresh hearing notice was served upon him. He was also warned to con­tact his counsel.

When the appeal was called on the 8th December, 1961, neither the ap­pellant nor any counsel appeared on his behalf. As the appellant had made it clear through the Superintendent of Prisons that he was not disclosing the name of his counsel, it was not possible for the Court to know who the coun­sel was he had briefed. With regard to the appellant’s presence in Court, this matter is governed by section 34(b) of the Federal Supreme Court Ordi­nance. The appellant had not paid the expenses for his transfer to Lagos and the case was not one in which we considered that we should make a direction under the proviso to that sub-section. The appellant had been served with a hearing notice; he had been given the fullest opportunity of being rep­resented by counsel and he had submitted written arguments to the Court. We did not consider that his presence was desirable for the due determina­tion of the appeal.

It is also the duty of this Court, when an appellant has stated arguments in support of his appeal in writing, to consider the arguments and also to con­sider the case for and against the appellant on the whole as it appears from the record of appeal. This we have done in this case.

The learned Solicitor-General who had come from Kaduna as repre­senting the Respondent has also helped the Court where he thought there might be points in favour of the appellant.

The evidence upon which the learned trial Judge convicted the appel­lant when he was tried with two others (who were acquitted) may be summarized as follows: The appellant about three years ago left his home town, Warri, in the Western Region to do business as a contractor in the North. He stayed in a house provided by the deceased at Zuru for a year. The deceased, Mallam Bawa, was a Works Supervisor employed by the Zuru Native Au­thority. The deceased and some Native Authority Councilors were not in agreement and after an official enquiry was held into the affairs of the Ad­ministration, a faction of the Councilors planned to get rid of him by killing him. One evening at dusk after a shower, a man in a blue plastic rain coat came to the deceased’s house. He saw a boy, Maga Wata, who went and cal­led the deceased for him. The deceased and another young boy, Yesufu, came. The deceased and the man in the rain coat conversed for some time; the boy did not pay attention to what they were saying, but as the deceased said he was going in and he turned round, the other man grabbed him by his gown. As he turned round, he was stabbed by the man in the rain coat; the deceased fell down and the man ran away. An alarm was raised. Later, the police arrested the appellant in his house with two others. A blood stained knife was found where the deceased fell, and a blue plastic rain coast was later found on a bed in a room occupied by the other two men who were ar­rested. The name “Moke” was on the neck band of the rain coat, and the ap­pellant claimed it. It was later found by the analyst to be stained with human blood. The boy Yesufu (about ten years of age) gave direct evidence against the appellant. He had known him before when the appellant was staying in the deceased’s house. He identified the appellant as the assailant of the de­ceased and pointed to him at an identification parade. There was also cir­cumstantial evidence against the appellant – evidence of those who saw him in blue rain coat going in the direction of deceased’s house. Half an hour after they saw him, one of the men heard shouts from the direction of the town where the deceased lived. As he ran towards the town he met the ap­pellant now without a rain coat.

Another witness, Okorokalu, not connected with the aforesaid two, de­posed to the fact that he saw the appellant and two others (already dis­charged) about 8 p.m. in the street talking together, the appellant holding a blue rain coat.

The appellant who gave evidence in his own defence, denied going to the deceased’s house or anywhere that evening or that he had on a blue rain coat, which according to him, the 2nd accused went out with. He said he had supper with the 2nd and 3rd accused. He admitted knowing about plans by his political opponents to kill the deceased, but he refused to join in it. He denied most of the nine statements made by him to the police.

In considering the evidence before him, the learned trial Judge warned himself about the statement made by the 2nd and 3rd accused persons which he rightly stated, in our view, were not evidence against the appellant. He then considered the unsworn evidence of the child, Yesufu, and warned himself of the provisions of Section 182 of the Evidence Ordinance, subsec­tion (3) of which calls for corroboration of the evidence of an unsworn child. He rightly refused to find as corroboration the evidence of the other boy, Maga, which was also unsworn. He, however, found corroboration in the evidence of the two men Mairiga Keffi and Adamu Idoma, both of whom saw the appellant that evening wearing a blue rain coat and going in the di­rection of the town towards the direction of the deceased’s house, approxi­mately half an hour before the deceased was killed.

The blue rain coat was another link in the chain which the learned Judge considered as corroborating the unsworn evidence of the child. Other persons saw the appellant wearing it that night. It was later found stained with blood in the house of the 2nd and 3rd accused, the appellant claimed it and his name was found on it. He maintained, however, that the 2nd and 3rd ac­cused persons had it and wore it that night.

The gravamen of the case is the matter of the identity of the appellant. In his additional grounds of appeal the appellant urged that the identifica­tion made by the boy, Yesufu (about 12 years of age) was unacceptable since the boy who claimed to have known him before that day by name did not mention his name from the outset, and not until the arrival of the Nigeria Police some time later. The learned trial Judge gave a lot of consideration to this point. This is what he said:

“In considering Mr. Sawyer’s contention that Yesufu is not to be believed because he failed to name 1st accused immediately after the killing I think it important to recall the circumstances obtaining at the time. As I have already observed, this boy had just witnessed a foul crime; an alarm was raised, people were sh­outing, Sale himself was greatly distressed and everyone was crowded into the small N.A. Charge Office. No doubt questions were being asked and allegations made and a good deal of confu­sion must have existed. This appears to be confirmed by the evi­dence of the Chief of the N.A. Police who said, in cross-examina­tion, referring to the events at the Charge Office… “I cannot re­member. I was excited and busy at the time.”

With this background in mind I do not think that it is of much significance that Yesufu did not make a specific identification on that evening. It is clear that he had recognised that assailant as a Southerner and claimed that he would know him again – whether in fact he was aware of the accused’s name at that time has not been established.

Mr. Sawyer has suggested that since the accused was well known to Yesufu the identification parade held on 9th November was purposeless. I do not agree. Yesufu had stated that he would recognise that man again and in these circumstances it was, in my view, perfectly proper and indeed desirable to hold the parade. It was conducted correctly and there has been evidence that Yesufu spontaneously and without hesitation picked out the accused. I am still less impressed with Counsel’s suggestion that the boy must have been influenced by the rumours in the village to the ef­fect that the accused had committed the murder. Yesufu impre­ssed me as a witness of truth. He was not over-emphatic in the manner of a schooled witness, he stood up well to cross-examina­tion and , most of all, his description of the visit and the stabbing held a definite ring of truth. I believe his evidence.”

We see no reason to differ from the opinion expressed by the learned trial Judge about the state of mind of a young child after witnessing such a dastardly act and also the fact that he had at all times indicated he could iden­tify the murderer, a Southerner. The fact that he unhesitatingly identified the appellant among crowd of people, as he said he would, supports the story that he knew the assailant to be the appellant.

There are other factors which, to our mind, are not coincidences, upon which the learned trial Judge rightly took into consideration as corrobora­tive of the evidence of the young boy, Yesufu. The evidence about the rain coat the appellant was seen wearing by different people that evening; he was also seen at a particular hour, later known to be about half an hour before the deceased was murdered, going in the direction of the town and that part of the town where the deceased lived. About half an hour later alarm was raised. One of those who previously saw the appellant going again saw him returning from the same direction, now without the rain coat. Later, the rain coat was found in the house of the co-accused with fresh human blood stains on it. It belongs to the appellant who sought in vain to show that the rain coat was worn not by him but by one of the co-accused.

The appellant’s defence of alibi clearly was destroyed by the evidence of three witnesses (apart from the two young children) who saw him in the street that evening wearing the rain coat.

After the most anxious consideration of the whole evidence, we are satisfied that the learned trial Judge has come to a right conclusion about the guilt of the appellant, and we therefore dismiss this appeal.


UNSWORTH, F.J.:         I concur.


TAYLOR, F.J.:      I concur.


Appeal Dismissed.



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