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SUIT NO. SC 38/1978

3PLR/1979/18  (SC)



(1979) 6-9 S.C. 112

(1979) All N.L.R 193





ESO,  J.S.C.




Chief F.R.A. Williams, S.A.N. (Elias With Him), – For the Appellant

Mr. A. Adetosoye, Legal Adviser (Lagos State), – For the Respondent



CRIMINAL LAW:- Murder – Proof of – Circumstantial evidence –  – Gun-shooting by soldier – Gun not recovered and bullet not official one used in service – How treated

CRIMINAL LAW:-Circumstantial evidence – Need for proof beyond reasonable doubt

PRACTICE AND PROCEDURE:– Contradictions or inconsistencies on immaterial points – Effect






Nathaniel Nasamu, a soldier by profession, was convicted of the murder of one lyese otutu by the Lagos High Court, (Bakare j.), in may 1977. He was accordingly sentenced to death. He appealed against the conviction and sentence to the Federal Court of Appeal sitting in Lagos and that court, after hearing arguments on the grounds of appeal filed by the appellant, dismissed his appeal on 13th June, 1978. It is against the judgment of the federal court of appeal that the appellant has appealed to this court.


The appellant is represented by chief f. R. A. Williams, S.A.N. who filed a copious brief and made legal submissions thereupon. As all the grounds of appeal relied upon by learned counsel were based on facts, it is necessary to set out the facts of this case upon which the trial court relied in convicting the appellant. The deceased’s uncle who was the first prosecution witness, was conveying some consignment of cement in a lorry from Apapa to his residence at Adebola-ojumu Street, Surulere. The lorry got stuck in mud along that road and while every effort was being made to release it, the accused came in his vehicle with the intention of passing by the lorry. Despite the warnings of the people around, he drove on, and his car also got stuck in the mud. The crowd then jeered at the accused and though the first prosecution witness asked the people to assist the accused to free his car from the mud they refused. The accused eventually got the labourers, who were at the scene, to free the car and those labourers pushed the car out of the mud to a point behind the cement lorry.


The accused at this stage got out of his car and demanded to know those who jeered at him. He got no answer. He called those, whom he alleged spoilt the road, names. The first prosecution witness answered back saying he, the first prosecution witness, contributed to the maintenance of the road. Then the accused pushed the first prosecution witness by the neck but two people, who also gave evidence as the 7th and 11th prosecution witnesses, intervened and prevented a fight. The accused said he would shoot them all bringing out a pen knife. The first prosecution witness later saw accused fire a gun after the men he pursued. People at the scene ran, with the accused pursuing them; the people came back when the accused returned to his car. But the accused gave chase again and suddenly fired a shot which killed the deceased.


The appellant in his evidence, admitted carrying a gun but said that his right hand was gripped by one of the people there when he got into his car while the others around beat him up. He said he took out the gun with his left hand and pointed it up. He freed his right hand and with it, he cocked the gun. He received a blow on the neck which sent him sprawling on the ground his hand hitting the ground first. The appellant said that it was at this stage the gun exploded. His intention was just to scare the crowd off when he brought out the gun.


The learned trial judge, after a very careful evaluation of the evidence before him accepted the evidence of the prosecution witnesses who were eye witnesses to the scene. He disbelieved the story of the appellant and convicted the appellant of murder.


The appellant appealed to the Federal Court of Appeal and after a review of the submissions of learned counsel for the appellant which were principally that there were contradictions in the evidence of the prosecution witnesses, their lordships of the Federal Court of Appeal, Ogunkeye, Coker, and Okagbue, JJ.C.A commented that the crucial point in this case was the shooting which the prosecution witnesses said was voluntary, while the defence said it was accidental. Since it was common ground that there was a shooting, how the lorry was parked and whether or not the lorry was being off-loaded were not at all material. In any event, the learned trial judge ably resolved those points. They held that the conclusions of the learned trial judge that the prosecution proved that the firing of the pistol by the accused was voluntary and that the circumstances disclosed a reckless disregard for the lives of the men at the scene of the incident was perfectly justified.


Chief Williams, as we have earlier said, in his appeal on behalf of the appellant against the judgment of the federal court of appeal, filed a comprehensive brief. He also made oral submissions.


The contention of learned counsel was that the prosecution did not prove the case against the accused beyond reasonable doubt. On the fatal bullet, it was learned counsel’s submission that the ammunition, which was 6.35 mm, was not the one used in the army. The appellant was a soldier serving, at the material time in the Nigerian Army. The evidence before the court in regard to the type of ammunition used in the army was from one Mohammed Mange. 13th prosecution witness, who had served in the army for twenty-five years and who said that there were two types of ammunitions in use in the army and the fatal bullet did not belong to either. That being so, it was learned counsel’s submission that on that point it could not be said that the prosecution had established beyond reasonable doubt that the fatal bullet came from the appellant’s gun.


In regard to whether the fatal gun shot was intentional or accidental, though it was common ground that the deceased died as a result of gun shot, learned counsel contended that in a situation where an accused person claims that eye witnesses were not giving a true account of what happened, it was not enough for the court to say that once the witnesses are unanimous on the facts in issue, “evidence of collateral facts such as the surrounding circumstances could be brushed aside as irrelevances or immaterial evidence so that inconsistencies or contradictions on such matters can rightly be ignored”.


What are these inconsistencies or contradictions that form the main complaint of learned counsel? Chief williams highlighted them sufficiently in his brief. He referred to the evidence of the first prosecution witness and said that on that evidence the appellant’s car “arrived after abortive attempt had been made to dislodge the lorry from the mud and act not (as the judge found) when these attempts were being made.” Counsel further contended that there was no evidential support for the finding of the judge in regard to what happened when the appellant came to the scene. The learned trial judge had found as follows –

‘the case for the prosecution briefly put is that the cement lorry got stuck in mud and the eye witnesses with the aid of others tried to dislodge it. While they were doing so the accused drove up in his car. The car got stuck in the mud and when it was freed he came out and demanded to know who was responsible for bringing the lorry to the road.”


Chief Williams contended that what was vital was not so much that the lorry was stuck in the mud and that people who stood by the lorry were not there for fun at the time the appellant arrived, the real vital question was why there should be such conflicting evidence on the issue of what went on where the lorry stood at the time the appellant arrived. Learned counsel also referred to what he called serious conflicts relating to the initial scuffle which led to the alleged shooting of the deceased, and also discrepancies in the description given by the prosecution eye witnesses who saw the act of killing. There were also in the submission of learned counsel, two separate versions of the chase by the appellant given by the eye witnesses and that should throw a doubt on the credibility of the witnesses.


After hearing the oral submissions of learned counsel for the appellant, we did not consider it necessary to call upon the learned state counsel representing the respondent to answer.


The contentions of the appellant in this court are firstly, that the fatal bullet could not have come from the appellant’s gun and secondly that there were contradictions in the evidence of the prosecution witnesses, which in the submission of learned counsel for the appellant, ought to have left some doubt in the mind of the trial court. In the latter case, the submission of learned counsel was that the learned trial judge should have disbelieved the evidence of the prosecution witnesses that the action of the appellant was intentional and not accidental as claimed by the appellant. We did observe in the decision of this court in John Ikhane v. The Commissioner of Police. 1977 6 sc. 119 at p.122 that –

“it is trite law that if on the whole evidence the court is left in a state of doubt, the prosecution would have failed to discharge the onus of proof which the law lays upon it.”


But then there must be such doubt. The pertinent question in this case is whether the allege contradictions in the evidence of the prosecution witnesses are so fundamental or in other words, they are such contradictions on material points as to leave a reasonable tribunal in doubt.


The appellant has relied on the decision of this court in Christopher Onubogu and another v. The state, (1974), 9 sca. In that case, this court observed (p.20) –

“where one witness called by the prosecution in a criminal case contradicts an-other prosecution witness on a material point the prosecution ought to lay some foundation such as showing that the witness is hostile, before they can ask the court to reject the testimony of one witness and accept that of another witness in preference for the evidence of the discredited witness.” (italics ours)


The emphasis in the passage is on “material point” and we would like to state here that not every contradiction, however minute, would be sufficient to damnify a witness. The contradiction that would make a court disbelieve a witness has to be on a material point in the case. And what is material however depends on the facts of each case. It must be such a contradiction that one of the witnesses contradicting the other on a material point is discredited and could as a result not be believed as a witness of truth either generally or on the material point in issue.


Before dealing with the alleged conflict, we would like to examine the issue of the fatal bullet. It is an undisputed fact that –

(a)     the deceased died as a result of a gunshot;

(b)     there was only one gun shot during the incident;

(c)     one gun shot was fired by the appellant.


All these point irrevocably to the fact that it was the gun shot from the gun carried by the appellant that killed the deceased. The appellant’s gun was never recovered, but he admitted carrying a gun. We think therefore that the fact that the fatal bullet is 6.35 mm when the two types of ammunition in use in the Nigerian Army are 7.62 mm and 9 mm becomes completely irrelevant. The irresistible inference from the facts of the case is that the fatal bullet, (being the only one fired during the incident and the shot from the appellant’s gun also being the only one fired during the incident) came from the gun of the appellant.


We agree with the trial court in its finding on this point and the federal court of appeal in not upsetting that finding. What is required is proof beyond reasonable doubt on that point even when the evidence is circumstantial. We approve of the dictum of Lord Morris of Bonh-y-Gest in Mcgreey v. DPP, 1973 1 All E.R. 503, when he said that what is important is that there is proof beyond reasonable doubt on circumstantial evidence. We would like to emphasize that there is no rule that where the prosecution is based on circumstantial evidence, the judge must, as a matter of law, not convict unless he is satisfied that the facts proved are not only consistent with the guilt of the accused but also such as to be inconsistent with any other reasonable conclusion. See also khadar and another v. The republic 1978, 2 cyorus l.r. p.132.


The only issue left to be resolved is whether the act of the appellant in firing the shot was intentional or accidental and as we have earlier said, learned counsel relied for the determination of this on the alleged contradictions in the evidence of the prosecution witnesses. We have examined thoroughly this complaint of learned counsel. The trial court after dealing exhaustively with this issue of contradictions said –

“i have given consideration to the inconsistencies mentioned by counsel and certain others which are clear from the evidence but find they are not on material issues.”


The learned justices of the court of appeal, after a careful review, were “in entire agreement with the findings and conclusions of the learned trial judge.” We are of the same view. The prosecution witnesses were all clear in regard to the act of the appellant that day. On the material fact of the appellant firing a shot into the crowd, there was no contradiction. By now, it is trite law, that a trial court is in the best position to assess the credibility of witnesses (see the military governor western state v. Chief afolabi laniba and anor. 1974 10 s.c. 227 at 233.)



We are of the firm view that there is no merit in this appeal and it is hereby dismissed.


Appeal dismissed.


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