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9TH JUNE, 1967.

SUIT NO. SC 582/1966.

3PLR/1965/46  (SC)









Chief H. O. DAVIES for the Appellants

A. APARA, Senior State Counsel for the Respondent.



CRIMINAL LAW AND PROCEDURE:- Murder – Proof of – Evidence Act – ss. 19A 209 – Statement of prosecution witness to police – Whether Defendant has right to demand production and use of same – Scope of use – Where application to produce witness’ previous statements improperly refused – Duty of appeal court thereto

CRIMINAL LAW AND PROCEDURE – EVIDENCE: – Written statement in the possession of the prosecution which was made by a witness called by the prosecution and relates to any matter on which the witness has given evidence – Whether such a statement is not evidence of the facts contained in it – Use to which defence can statement to – Evidence Act, ss. 198 and 209 – Implication thereof

CRIMINAL LAW AND PROCEDURE: – Prosecution – Need to prove case beyond reasonable doubt – Doubt – Need for same to be resolve in favour of accused person

ETHICS – PROSECUTION AND COURT:- Traditional duties – Prosecution – “Duty is not to secure a conviction but to see that justice is done [and] so should put no hindrance in Defendant’s way” – Court – “Exists to do justice” – Duty to make whatever order may appear necessary to enable Accused person to put forward any defence that may be open to him

PRACTICE AND PROCEDURE – COURT:- Trial Judge – Sentencing proceeding for capital offences – Where judge seek to recommend that the capital sentences which the law required him to pass should be commuted to terms of Imprisonment – Need to communicate same confidentially in all cases

CHILDREN AND WOMEN LAW:– Women and murder – Son/husband-killing – Mother and wife as eye witnesses to the killing of son/husband – Eye witness evidence thereof – How treated by court


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

The four appellants and five other men were charged with murdering Muraina Adegoke at Ede on the 17th January, 1966. The other five were acquitted and the four appellants were convicted of murder, and have appealed against their convictions.

Seven witnesses in all were called for the prosecution. Of the five who gave evidence of the circumstances of the killing, and of who took part in it, one was rightly treated as an accomplice by the trial judge and two were thoroughly discredited, so that the judge placed no reliance on their evidence. The case depends on the evidence of two women, Nusiratu Adegoke, the widow of Muraina, and Sella Alate, his mother. They described how in the evening of the 17th January they and Muraina were in their house chatting when a hostile crowd pushed into the house threatened Muraina and attacked him with sticks, stones and other objects and finally killed him by blows on the head. The post- mortem showed the cause of death to be a fracture of the skull, compatible with the application of a blow from a blunt object.

Each of these two witnesses Identified the four appellants as having taken part in the Incident, with Lasisi Omulyadun and Lasisi Ayanloye taking a leading part and striking Muraina on the head themselves with a stone and a pot. Each of them also said or implied that the murder had a political motive. Nusiratu said that the crowd accused Muraina of importing U.P.G.A. thugs into Ede, and both women said that the attackers were members of the N.N.D.P. We do not accept the submission that the trial judge made wrong assessment of the credibility of the witnesses by overlooking the political background. It may be true that some of the witnesses who were discredited took the opportunity of trying to cause trouble for their political opponents, but that does not of itself discredit the evidence of the two women and as the record stands we cannot say that the trial judge, who had seen and heard them in the witness-box, was not justified in accepting their account of what took place, including their identification of the appellants.

The appellants submit, however, that they were improperly deprived of the opportunity, of testing the story told by the two women against the statements they had previously made to the police. Before the case for the prosecution was opened, defending counsel applied for statements made by persons Interviewed by the authorities in connection with the case. He was not entitled to see statements made by persons who were not to be called as witnesses for the prosecution, and prosecuting counsel, after referring to R. v. Bryant and Dixon 31 Cr. App. R. 146, said that he was willing to supply statements made by witnesses called by the prosecution when the time for cross- examining them came. He might well have agreed to provide those statements at once, but otherwise we cannot criticise his attitude. The Judge, unfortunately, took a stricter attitude. He quoted a passage from the head note to R. v. Clarke 22 Cr. App. R. 58, which reads:-

“A defendant is entitled to see a written description of himself given by a police officer to his superior, with a view to cross-examining that officer on alleged discrepancies between the contents of that document and his sworn testimony.”

He went on to say:-

“So the governing principle is that the defence must allege a discrepancy between the statement to the Police and the sworn testimony before I can order the prosecution to produce the statement of the witness made previously to his sworn evidence.”

He returned to the question again in his judgment, where he said:-

“I ruled that 1 would not grant such an application unless the defence counsel establishes that there are some discrepancies between the statement to the police by a prosecution witness and the evidence being given before this court by such a witness.”

The ruling given at the start of the trial requires defending counsel to allege a discrepancy between a statement which he has not seen and the witness’ sworn testimony, and it would be irresponsible conduct, to say the least, to make that al-legation in such circumstances. We do not think defending counsel is to blame for not having renewed his application after that ruling. The words used in the judgment would require defending counsel to establish such a discrepancy before he could see the statement which is requiring the impossible. R. v. Clarke dealt with a particular kind of written statement, but in our experience the principle has always been applied, as I was in R. v. Adebanjo (1935) 2 W.A.C.A. 315, to any written statement in the possession of the prosecution which was made by a witness called by the prosecution and relates to any matter on which the witness has given evidence. Such a statement is not evidence of the facts contained in it and the only use to which the defence can put it is to cross-examine the witness on it and then, if it is Intended to impeach his credit, to put the statement in evidence for that sole purpose: Evidence Act, ss. 198 and 209. The defendant, or his counsel, has no means of knowing whether the statement can be put to this use until he has seen it. Prosecuting counsel whose traditional duty is not to secure a conviction but to see that justice is done, should put no hindrance in his way and the court, which exists to do justice should make whatever order may appear necessary to enable him to put forward any defence that may be open to him.

In this Court, Mr. Akin Apara agreed that production of these statements had been improperly refused, and the hearing of the appeal was adjourned to enable him to supply the Court and counsel for the appellants with copies of these statements. At the resumed hearing Chief Davies, for the appellants, compared the statements made to the police by the two witnesses on whose testimony the conviction rested, Nusiratu and Selia, with their sworn testimony and submitted that there were sufficient discrepancies to make it unsafe to uphold the convictions of any of the appellants. The special circumstances impose on us a somewhat different approach from that which we usually adopt on issues of credibility in criminal appeals. We are not retrying the case, and we think the question we must ask is whether, if the Judge had had the opportunity of comparing the statements of two women with their sworn testimony and of hearing their explanations of any discrepancies that might have been put to them, there is a reasonable possibility that he might have declined to convict on the strength of their sworn testimony. In the general outline of their stories we find no significant discrepancies, and we do not consider that the Judge’s findings could reasonably have been affected if he had seen the statements. As regards the identification of the four appellants, each of the women named Lasisi Omuiyadun and Lasisi Ayanloye both in her statement and in her evidence. Neither of them named Raimi Bilo in her statement. Nusiratu Adegoke named Lamidi Lawale in her statement as having driven a Land Rover in which Muraina’s body was removed, but did not name him as having taken part in the actual killing, whereas in her sworn testimony she named him as one of the original band of attackers. Sella Alate did not name him in her statement, but she identified him at the trial and said she did not know his name, or that of any of the accused persons except Lasisi Omuiyadun and Lasisi Ayanloye, which would ac-count for her not having named any of the appellants except them.

A comparison of the statements with the sworn testimony could not have raised any reasonable doubt in the Judge’s mind as regards the identification of Lasisi Omuiyadun or Lasisi Ayanloye, if he had none before, and their appeals are dismissed. As regards Raimi Bilo, Sellla Alate impliedly explained her omission to mention his name in her statement by saying that she did not know it. Nusiratu Adegoke evidently identified him by name at the trial, and we do not know what answer she would have given if she had been asked why she did not name him in her statement to the police. The record of her evidence shows that she was a discriminating witness, since she did not pretend to identify all the nine accused per-sons as having taken part. However, we cannot be certain that the Judge might not have had a doubt about her identification of Raimi Bilo, and have thought it un-safe to convict him, and the possible doubt must be resolved in his favour. As for Lamidi Olawale, there was, as we have said, a certain variation between the parts which Musiratu said he played in her statement and at the trial, and Sellla used words at the trial which might be taken as meaning that he first came on the scene as the driver of the Land Rover. With some hesitation, we have formed the opinion that if the Judge had seen the statements he might possibly have had a doubt as to whether this appellant was a party to the murder or only an accessory after the fact. Here again, the possible doubt must be resolved in favour of the appellant.

To sum up, the appeals of Lasisi Omuiyadun and Lasisi Ayanloye are dismissed. The appeals of Raimi Bilo and Lamidi Lawale are allowed, their convictions and sentences are quashed and judgment and verdict of acquittal is entered in each case.

The Judge appended to his judgment, under the heading “Remarks.” a statement of the reasons for which he desired to recommend that the capital sentences which the law required him to pass should be commuted to terms of Imprisonment. If a jury wishes to make such a recommendation it can only do so at the time of giving its verdict, but in Western Nigeria s.370(1) of the Criminal Procedure Act requires a Judge who has pronounced a sentence of death to submit a report in writing signed by him containing any representation or observations on the case which he thinks fit to make. His recommendation may be either for or against commutation of the sentence, and if it is made publicly known in one case it may give rise to an expectation that it will always be made publicly known. We think it advisable that it should be communicated confidentially in all cases. Appeals of two appellants dismissed. Those of the other two allowed.

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