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3PLR/1994/59  (CA)



3 NWLR PART 383 PG 376








  1. T. Inife (Mrs) – for appellant

Chief U.N Udechukwu – for respondent



CRIMINAL LAW AND PROCEDURE – Defence of alibi: discharge of burden of proof

CRIMINAL LAW AND PROCEDURE – Medical evidence in proof of cause of death – whether compulsory

PRACTICE AND PROCEDURE – EVIDENCE – Condition precedent to admissibility of dying declaration


MORONKEJI OMOTAYO ONALAJA Delivering Leading Judgement

The appellant was arraigned upon an information before Ahoada High Court in Ahoada Judicial Division of Rivers State High Court and charged with the murder of one Solomon Nwokocha on 11th August, 1978 at Obagi Obigbo bush in Omoku District of Ahoada Judicial Division aforesaid contrary to Section 319 Criminal Code of Rivers State.

The matter proceeded to trial wherein in establishing its case the prosecution called seven witnesses. Upon completion of prosecution’s case learned counsel for the appellant made a submission of no case to answer. After a considered ruling the leaned trial Judge overruled the no case submission. Thereafter, appellant testified for himself and called no witness.

Learned counsel to the prosecution and appellant addressed the lower court after the testimony of the appellant.

In a considered judgment delivered on 19th May, 1981 the leaned trial Judge convicted the appellant of the offence of murder of Solomon Nwokocha on 11th August, 1978 and sentenced him to death by hanging. Being dissatisfied with the said judgment gave rise to lodgment of an appeal to this court. The conclusion of arguments by appellant’s counsel and respondents in this appeal gave rise to this judgement.

The appellant on 12th June, 1981 filed his notice of appeal as shown at page 53 of the record of appeal as follows:-

“1.     The learned trial Judge misdirected himself in law in holding that the accused had been substantially associated with the death of Solomon Nwokocha when there was no evidence before him to justify such inference.

  1. That the decision of the learned trial Judge was altogether unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.”

Learned counsel for the appellant was assigned the brief by the Registrar of the Court of Appeal on 19th June, 1992. Looking through the record of appeal he discovered that appellant drafted his ground of appeal of 12th June, 1981 having abandoned the notice of appeal filed by appellant himself originally on 8th June, 1981. He sought leave of this court that considering the period of time appellant had been in custody, relying, on Order 4 rule 3(3) and 4(3) and order 7 rule 3 of the Court of Appeal Rules (as amended) he sought leave to amend ground 2 supra by deleting the words “weight of” to entertain the appeal and waive the need for a formal application for amendment in the over-riding interest of justice, as appellant evinced a clear intention to appeal to this court against the judgment of the lower court that convicted him of the offence of murder.

The attitude of the court now is to do substantial justice without clinging too much to technicality as manifested in Ezekiel Nneji & 3 Ors (for themselves and on behalf of Enugu Achara Amodyu Awkunanau v. Chief Nwankwo Chukwu & 7 Ors (for themselves and on behalf of Umueze Awkunanaw) 1988 3 NWLR (Pt. 81) p. 181 and held 188, 9 thus:-

“9      The Supreme Court is more interested in substance than in mere form of a matter: Justice can only be done if the substance of the matter is examined: Reliance on technicalities leads to injustice (State v. Gwonto (1983) 1 SCNLR 142, 160 followed)”

See further Pwol v. Jang (1992) 7 NWLR (Pt. 251) p. 120 CA; Terba v. Lawan (1992) 3 NWLR (Pt 231) 569 SA; Owoni Boys Technical Services Ltd v. John Holt Ltd (1991) 6 NWLR (Pt. 199) page 550 S.C.; Akinbobola v. Plisson Fisko (Nig) Ltd (1991) 1 NWLR (Pt. 167) 270.


In the interest of justice applying the relevant rules of this Court of Appeal stated above and above mentioned authorities the words “weight of ” are deleted in ground 2 supra with leave and the appeal is entertained by deleting the words “weight of” as the amendment was granted.


Based upon the above grounds the appellant formulated the under mentioned issues for determination n his brief of argument:-


“Part Three – Issues for Determination


3.00   The issue for determination in this Appeal is, in our humble opinion, whether upon a calm view of the evidence adduced at the trial at the court below, the decision reached by that Court is justified having regard to the quantum of proof required in a criminal trial.


3.01. Put more precisely, the issue is whether the prosecution had proved beyond reasonable doubt that the appellant murdered Solomon Wokocha.


3.02. This issues the essence of the two grounds of appeal and the two grounds of appeal will therefore be argued together within the ambit of this issue.”


The respondent at page 3 of its brief of argument stated as follows:-


“3. Issues for determination


The respondent adopts the issues for determination raised by the appellant and will argue the 2 grounds of appeal separately.”


The methodology adopted by the learned counsel for the respondent in respondent’s brief of argument on the issues for determination has raised the issue of brief writing in the Court of Appeal and the Supreme Court, with its attendant importance cannot be too much over emphasised, as the issues for determination must encompass the grounds of appeal. The issues for determination on a matter on appeal formulated both by the appellant and respondent are similar to exchange of pleadings in the trial court, with the parties pleading material facts not the evidence. The defendant must make a proper traverse in his statement of defence either expressly, positively, unequivocally and or y necessary implication See Messrs. Lewis & Peat (NRI) Ltd v. A.E. Akhimien (1976) 1 All NLR (Pt. 1) page 460, 465, 466 and 468 by Idigbe, J.S.C.


In a similar manner it is inept for a respondent in its brief of argument to adopt the methodology of the respondent in this case. This method is lazy and inelegant way of drafting brief and this court frowns as it, and depreciates the same. But for the fact that this matter is a murder case this court would have ignored the formulation of the issues for determination in respondent brief. The practice of brief writing is designed to assist or help the appellate courts to expedite the disposal of appeals pending before it in the administration and dispensation of justice.


The observation Uche of Omo, J.S.C. in Solomon Thomas Akpan v. The State (1992) 6 NWLR (Pt. 248) page 439 at page 457 is very opposite.


“There is no doubt that the respondent’s counsel was very wrong to have simplistically reproduced as respondent’s issue for determination the very same issues (word for word) formulated by the appellant. If counsel had bothered to read the issue with a modicum of intelligence, would have realised that if the thrust of the issues set out by the appellant may e described as set out in the negative (attacking the findings/decision of the trial Judge) his own formulation should have been framed in the positive (supporting the very same findings/decision ). My impression is that respondents counsel was mentally lazy when reading the appellants issues for determination, and decided to adopt them wholesale because the complaints addressed in those issues are the very same complaints which, in his view (and correctly so) the court below should considered in arriving at a decision on the appeal before it. For this simplistic and lazy attitude and consequently wrong formulation of respondent’s issues counsel was appropriately criticised by the court below.”


The attitude of the appellate court is not to strike out defective issues formulated by respondent see Akpan v. The State supra but at page 458, 466, 471 that held:-


“24.   It is settled that a bad, faulty or inelegant brief, though may attract some adverse comments from the appellate court, is still a brief though faulty and as such the appellate court would not close its eyes to the fact of its existence. Thus the fact that the brief of argument is poorly written would not discharge the appellate court from its duty of doing substantial justice to the parties appearing before it Obiora v. Osele (1989) 1 NWLR (Pt. 97) 279 at 300; Ojikutu v. Odeh (1954) 14 WACA 640 at 641 referred to and followed.”


An appeal court suo motu can correct where the issue for determination arising from the grounds of appeal is wrongly formulated by either of the parties to an appeal, as the court would not allow an error to remain uncorrected so as to enable the opponent to take advantage of such error to the prejudice of the party making the error.


But where no ground of appeal or issue formulated under the provisions of the Constitution of 1977 and the amended Court of Appeal Rules of Court of Appeal is that no complaint has been made against the issue raised on appeal. An appellate court will refuse argument on such an issue as it is trite law that a court can only grant the prayer sought before it so decided the Supreme Court in Etim Ekpengong & 3 Ors v. Inyand Effiong Nyong & 6 Ors (1975) 2 S.C. 71, 74-82; N.A.B. Kotoye v. C.B. of Nigeria & 7Ors (1989) 1 NWLR (pt. 98) page 419 S.C.; Union Beverages Ltd v. Owolabi (1988) 1 NWLR (Pt. 68) page 128 S.C. Adenekan Ademola v. Harold Sodipo (1992) 7 NWLR (Pt. 253) page 251 S.C.


In the instant appeal which is an appeal against the conviction of the appellant for murder in the appellants brief of argument learned counsel for appellant complained against the finding of the trial Judge in his finding of treating the statement credited to the deceased by the 2nd P.W. who testified that he heard the deceased who was in agony made statement to the effect that “IGIRI” has killed me ” “IGIRI has killed me” meaning the appellant in paragraph 2.02 at page 4 of appellant’s brief wherein it proceeded to extract the statement of the 2nd P.W. as follows:-


“I came onto the bush road at a bend on the path. There I saw accused standing with a gun and I saw Ogwu on the ground shifting. I could not be near because accused had a gun. he held it pointing it at deceased I said to accused “IGIRI I have seen you,” and I kept running away. As I was running I heard 2 more gun shots. I then said in my mind “this is going to kill many people so I hid in the bush.”


Learned counsel for appellant in his brief contended that the appellant is “IKIRI” and not “IGIRI” and in paragraph 4, 13 at page 11 of appellant brief stated:- “Assuming, without conceding, the evidence of P.W. 2 that he heard Solomon Ogwu shouting “IGIRI” has killed me Igiri has killed me” the learned trial Judge because his mind had been conditioned to believe the prosecution’s case regarded the alleged statement purportedly made by Solomon Ogwu as a dying declaration without inquiring into the matter as to whether the statement in law amounts to a dying declaration. In Okokor v. The State (1967) NMLR 189 the Supreme Court enunciated the law in Nigeria to be that while in England the court is allowed to induce (sic) from the nature of the wound whether he was in fear of death when he made a “dying statement” in Nigeria there must be positive evidence that the deceased believed that he was going to die when he made the statement before it can be admissible s a dying declaration.


4.14. It is also the law that where the court must rely on the accounts given by an eye witness who heard a dying declaration made by the deceased strict proof is required of the dying declaration the exact words used by the deceased see Ikono v. The State (1973) 5 S.C. 231. If therefore P.W. 2 heard the deceased shout “Igiri has killed me, Igiri has killed ,e” then that does not refer to the appellant, because appellant is not “IGIRI but “IKIRI PETER (Record page 27 lines 25 and 26.”


In respondents brief paragraph 4.04 at pg. 3, i reproduce the last paragraph of page 3:-


“There is in evidence that on the day in question, he left his house to Ebuku bush to weed his plantain plantation and heard the voice of Solomon Nwokocha (deceased) shouting “IGIRI has killed me. IGIRI has killed me” and went towards the direction of the voice and saw the deceased rolling on the ground, with the appellant, pointing a gun at the deceased.”


On this issues at page 41 of the record learned trial Judge made the following comments being the last paragraph of page 41 thus:-


“The direct evidence on the cause of death is the evidence of P.W.2 who said he heard the gun shot and the following cry of agony of the deceased and upon going to see what was happening found the accused standing with a gun over the deceased and pointing it at the deceased who was on the ground rolling and crying IGIRI (meaning the accused has killed me.”) This declaration would qualify for a dying declaration if I believe P.W. 2 for it was obviously a statement proceeding from a mind which believe in approaching death. if I believe this evidence then I would be compelled to hold that the deceased’s death was caused by the accused shooting him, for the deceased was never seen alive but found dead on what can be presumed to be the spot where he had laid rolling. I say “presumed” because P.W. 2 who saw him on the ground was not one of those who brought the dead body home, but there is the evidence that the body was found in the farm of the deceased where he had laid rolling on the ground in apparent pain”.


At page 46 paragraph 1, the learned trial Judge stated thus:-


“Having gone over all the material issues in the defence and remembering the nature of evidence given by the prosecution witnesses and their demeanour in the witness box (which I had closely observed) I observed them to be witnesses of truth.”


Having believed the evidence of P.W. 2 by interference as stated above he accepted the declaration”IGIRI has killed me. IGIRI has killed me.” as a dying declaration.”

I have made a juxtaposition of the matter of dying declaration to brief writing, ground of appeal and issues for determination, with the power of any court to only grant the prayer, relief, claim or order sought before it because though the mater is so vital and ought to have been a ground of appeal but there is no ground of appeal encompassed in the issue for determination where in appellant complained against the decision of the learned trial judge that he was in error to have accepted the declaration by the deceased heard by 2nd P.W. that “IGIRI has killed me. IGIRI has killed me” as a dying declaration.


Is there exception to the rule in Ekpenyong v. Inyand (supra). The instant appeal is a criminal appeal against the conviction for murder with the sentence of death y hanging. The attitude of the court even an appellate court is to consider on liberal grounds all available legal and equitable defences open for consideration for the appellant. it is this consideration in the interest of justice as the issue is capital punishment that called for departure from the rule in Ekpenyong v. Inyang Where there has been no complaint against the finding of the trial court an Appellate court should not entertain a matter without a ground of appeal and go on voyage of discovery. I have also been influenced by the judgment of the Supreme Court in Godwin Anyiam v. The State (1961) 1 All NLR (Pt. 46); (1961) 1 SCNLR 78 that where a matter is capable of being interpreted in a manner favourable to an accused person and unfavourable to an accused person, the court should lean in interpreting it to be favouable to the accused person.


Based upon the above premises, I shall consider not withstanding the lacuna above whether the declaration by the deceased heard by 2nd P.W. that “IGIRI has killed me. IGIRI has killed” passed the acid test of being held as a dying declaration.


Section 33(1) Evidence Act Cap. 112. The Law of the Federation of Nigeria 1990 is the genesis of dying declaration and provides as follows:-


“33(1)Statements, written or verbal or relevant facts made by a person who is dead are themselves facts in the following cases:-


(a)     when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, cases in which the cause of that person’s death comes into question, such statements are relevant only in trials for murder or manslaughter of the deceased person and only when such person as the time of making such declaration believed himself to be in danger of approaching death although he may have entertained at the time of making it hopes of recovery.”


Dying declarations are an exception to the rule excluding hearsay evidence and are admitted under certain limitation in cases of homicide or manslaughter, so far as the circumstances attending the death and its cause are the subject of them. Eyre C.B. in R.v. Woodock (1789) I1 Leach 500 at p. 502. observed as follows on dying declaration and the admissibility thus:-


The general principle upon which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth, a situation so solemn and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice” See also Kuse v. State (1969) 1 NMLR 153.


To be admissible and for the court to rely on the account given by eye witnesses who heard a dying declaration made by a deceased, strict proof is required of the dying declaration in the exact words used by the deceased so as to remove any lingering uncertainties as to what the deceae4sed had in fact said see Akpan Ikono & Anor v. The State (1975) 5 S.C.231. See further Akpan v. The State (1992) 6 NWLR (Pt. 248) page 439 S.C.


While in England, the court is allowed to infer from the nature of the wounds sustained by a deceased person whether he was “in Nigeria there must be positive evidence that the deceased believed that he was going to die, when he made the statement before it can be made admissible as a dying declaration under Section 33(1) (a) Evidence Act (supra) so held the Supreme Court in Oruakpor Okoko v. The State (19670 NWLR p. 189. In that statement credited to the deceased when he shouted “Ovuomarienor has killed ” Ovuomarienor has dealt matchet blows on me” was rejected as a dying declaration because the learned trial Judge erroneously applied the English rule which is different to our Section 33(1)(a) Evidence Act thus:-


“of the serious nature of the wound ………… the surrounding circumstances and the fact that the deceased died soon after.”


However the statement was admissible in evidence as part of the res gestate and that the learned trial Judge rightly received the statements in evidence on that basis.


In Nigeria it is sufficient to show that at the time when he made the statement prefaced by the words. “I am wounded and likely to die” has been held admissible as a dying declaration under section 33 (i)(a) Evidence Act supra R. v. Bebetebe (1938) 4 WACA 67.

But where the deceased after receiving wounds from which he died three days later said in reply to a question “I don’s know whether I am going to die” his subsequent statement as to the cause of this death was held inadmissible as a dying declaration in R.v. Obuewu 91949) 12 WACA 483.


To be applicable the leaned trial Judge must make specific finding to this effect in his judgment that the particular deceased did in fact believe the danger of approaching death when making the declaration Kuse v. The State 1964 NMLR 153 S.C.


A restatement of the law as to what constitutes admissibility of statement as a dying declaration under Section 33(1) (a) Evidence Act 1990 was made by the Supreme Court in Akinfe v. The State (1988) 3 NWLR (Pt. 85) p. 729; Solomon Thomas Akpan v. The State (1992) 6NWLR (Pt. 248) p. 439 and by Karibi Whyte, J.S.C. that the events leading to the dying declaration of the deceased and the dying declaration itself may be part of the res gestae which culminate in the death of the deceased if they form part of one transaction and explain the circumstances of the death of the deceased and are admissible in evidence. Vorgho v. State (1972) 1 All NLR Page 72; Garba v. R. (1959) SCNLR 402; Akpan v. The State 91967) NMLR 185 were considered are referred to.


Despite my sticture that the issue of dying declaration was not a ground of appeal without any issue for determination formulated on it, I prefer to err on the side of the law than be blamed for not considering it, this being a criminal matter involving capital punishment, Though not raised the matter of dying declaration was raised in argument of the briefs of the parties.


On this issue I reproduce the evidence of 2nd P.W. at page 6 of the record thus:-


“I remember 11th August ’78. On that day I was in Obigbor. I left my house to Ebuku bush by 7.30 a.m. I went to my plantain plantation to weed the grasses.

Not long after i left I heard a gun shot close to my farm. I heard Solomon Ogwo shouting “IGIRI has killed me, IGIRI has killed me” referring to accused. Igiri is the accused. That is the name by which we know him in our place. I came on to the bush the continuation of the evidence had been referred to as paragraph 2.02 page 4 of appellant brief of argument.


I have already referred to page 41 and 46 of the record supra wherein the learned trial Judge after referring to the statement of the deceased who was on the ground rolling and crying “IGIRI (meaning the accused) has killed me.” This declaration would qualify for a dying declaration if he believe P.W. 2 for it was obviously a statement proceeding from a mind which believed in approaching death. If he believed this evidence then he would be compelled to hold that the deceased’s death was caused by the accused shooting him. Learned trial judge eventually believed at page 46 evidence of 2nd P. W., based upon his demeanour, by trial judge based on credibility of witnesses except the finding is unsupportable by the evidence or the finding is perverse see Ebba v. Ogbodo (1984) 1 SCNLR p. 372; Woluchem v. Gudi (1981) 5 S.C. 291; Nasiru v. Commissioner of Police (1980) 1/2 S.C. 94.


Applying the above authorities to the instant appeal the statement by the deceased that “IGIRI has killed me IGIRI has killed me” notwithstanding the contention at page 12 of the appellants brief that appellant is not”IGIRI but “Ikiri Peter” can be found in a short answer that 2nd P.W. testified that in their village appellant was known as “IGIRI” and unequivocally in his testimony referred to the appellant as the person he saw and told him “IGIRI I have seen you and kept running away.” The statement can, be acceptable as a dying declaration and also as part of the res gestae, the argument to the contrary is hereby rejected. The declaration passed the acid test of admissibility of dying declaration.


The first issue for determination boils down to whether upon a sober evaluation of the evidence adduced by the prosecution the trial judge was justified that the prosecution discharged the burden on it.


The second issue is similar to the first issue. Is whether prosecution proved the case against the accused person beyond reasonable doubt.


As the issues as formulated area similar and within the same ambit must have influenced learned counsel for the appellant to argue them together, whilst learned counsel for the respondent opted to argue them separately. With respect it is more prudent to argue the issues together which succinctly put is whether the respondent discharged the burden placed upon it being a criminal case to prove its case beyond all reasonable doubt.


Section 138(1) Evidence Act 1990 stipulates that


“138(1)if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.


(2)     The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provisions of section 141 of this Act on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.


(3)     if the prosecution prove the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on the accused.”


This is the position in view of the provision of the fundamental right of innocence entrenched in the1979 Constitution of the Federal Republic of Nigeria wherein Section 33(5) stipulates thus:-


“33(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.

Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon such person the burden of proving particular facts.”


In the instant appeal, appellant was charged with the offence of murder contrary to Section 319 of the Criminal Code of the former Eastern States of Nigeria applicable in Rivers State.


In interpreting the above the burden on the prosecution has crystallised with decided cases from time immemorial and succinctly put as held 14 and 15 in Solomon Thomas Akpan v. The State (1992) 6 NWLR (pt. 248) p. 439 at 462 by S.C. that


“In homicide cases the onus of proof on the prosecutor to prove the cause of death and the prosecution can discharge the burden either by:


(a)     direct evidence or


(b)     circumstantial evidence that creates no room for doubt or speculation.


In the instant case, there is ample direct evidence of the nature of wound inflicted on the believed evidence by the appellant which ended with the collapse and death of the deceased in the house of P.W.2 (Adetola v. State (1992) 4 NWLR (Pt. 235) at 267; R.v. Oledinma (1940) 6 WACA 202; Uyo v. A.G. Bendel State (19860 1 NWLR (Pt. 17) p. 418 at 426; Gabriel v. State (1989) 5 NWLR (Pt. 122) page 457 referred to followed and applied.


  1. Medical evidence or medical or medical report is not a prerequisite for establishing the cause of death. It is not essential where


(a)     there is evidence of the death of the deceased and


(b)     there is evidence that the death is as a result of the unlawful and intentional act of the accused person (Oka v. State 1975) 9/11 S.C. 17 referred to.)”


Having established the cause of death the prosecution has the burden not only that the act of the accused person could have caused the death of the deceased but that it did. There must be clear evidence that the death of the deceased was the direct result of the act of the accused to the exclusion of all other reasonably probable causes R. v. Nwokocha (1949) 12 WACA 453; R.v. Owe (1961) 2 SCNLR circumstances of the case Bakuri v. The State (1965) NMLR 163.


Having stated the law the next issue is the consideration of the attacks of the judgment of the leaned trial Judge and whether it applied the proper and appropriate law in convicting the appellant of the offence of murder.


Learned counsel for the appellant that having regard to the evidence of the 6th P.W. the medical doctor who gave evidence to this effect that

“the wounds were not deep. There was bleeding. Not much bleeding. I took the age of the deceased to be 50 to 60 years and i such a case even the shock of being fired on would kill someone like him.”


the prosecution failed to establish the cause of death and that it was the act of the appellant that caused the death.


As stated above medical evidence though desirable is not essential. In the instant appeal at the autopsy 1st P.W. the son of the deceased and who knew the deceased as a father and in his lifetime identified the body to 6th P.W. as laid down in R.v. Laoye (1940) 6 WACA 6.


The learned trial Judge has not breached the rule of law that medical evidence though not essential but by rule of practice is desirable made no error in the application of the medical evidence given by the 6th P.W. in the case. This complaint lacked merit and is hereby rejected.


That contrary to the rule of law that where blood relations testified as in this case the learned trial judge was in error not to have warned himself, and that this error is fatal to prosecution’s case having regard to the rule in Aaron Akpan v. The State (1972) 4 S.C. 47 at page 58. IAN Lewis, J.S.C. observed as follows:-


“and after further warning himself that the 4th P.W. was the daughter of the deceased so that her evidence must be carefully scrutnised in case she was biased, he accepted her evidence as to recognising the accused as the person who shot her father and found that it was corroborated by the fact that the spent cartridges in the deceased’s room were found to have been fired from the rifle which was found at the house of the father of the accused and which the accused in his statement said was his though later at his trial when he adopted that statement he maintained it was LT Umoh’s rifle. The case certainly turned on the vital evidence of the daughter of the deceased (4th P.W.) but after the careful warning that the learned trial Judge gave himself we see no reason from the record why he should not have believed her and there has been no miscarriage of justice.”


With respect to learned counsel in his contention regarded the last statement that in similar case the learned trial Judge must warn himself before accepting the evidence of a blood relation. There is no such rule of law. In the cited case that judge out of caution warned himself, the statement by Lewis J.S.C. about warning by the trial Judge was an obiter dictum and not borne out as the present position of the law on tainted witnesses.


The contention of learned counsel for the appellant in my understanding is that from the testimonies of 1st P.W., the son of 5th P.W. the 3rd P.W. whose wife was alleged to have made an allegation of robbery against the appellant their testimonies are to be treated as evidence of tainted witnesses with the trial Judge warning himself which was not done in this case the failure amounted to miscarriage of justice. That 1st, 2nd and 5th P.W. has 3rd P.W. had land cases in dispute with the appellant.


The better view about acceptance and evaluation of tainted witnesses evidence was given recent consideration by Edozie, J.C.A. in Ihemegbulam Onyegbu v. The State (1994) 1 NWLR (Pt. 320) at page 328 thus:-


“The principles has long been established that the fact that the witnesses for the prosecution had the relations or friends of the deceased does not make their evidence inadmissible. The fact only make a tribunal adjudicating on the case to be circumspect in the reception of their evidence and to treat such evidence with caution. See Stephen Oteki v. A.G. Bendel State (1986) 2 NWLR (Pt. 24) Pages 648; Onafowokan & Anor v. The State (1986) 2 NWLR (Pt. 23) 496; Onuoha v. The State (1989) 2 NWLR (Pt. 101) page 23; Hausa v. The State (1992) 1 NWLR (Pt. 219) page 600.”


In the instant appeal it was not suggested to 1st P.W.,2 P.W., 3rd P.W., 4th P.W. and 5th P.W. that their testimonies were coloured and that they had their own purposes to serve. I hold the view that the findings of fact and the evaluation of the evidence by the trial Judge as to the testimonies of the alleged tainted witnesses were aptly justifiable and do not intend to disturb the evaluation more also when the leaned trial judge based them on the credibility and demeanours of the said witnesses. Edozie, J.C.A.’s observation supra reflects the present position of the law on the treatment of evidence of witnesses alleged or painted as tainted witnesses and found the same very instructive and have no hesitation in using it as the beacon and guide in this case.


The 1st P.W. was the son of the deceased and stated the boasting of the appellant to kill members of his family who disturbed him on the land the subject of dispute between the two families. he narrated how he saw the appellant on his way to Ebuke farm and saw him with a gun and a knife. Apart from being the son of the deceased and as blood relation of 2nd P.W. and his mother 5th P.W., to other allegation of bias was made against them.


With regard to the 3rd P.W. who is the head of the section of his family which included the appellant he maintained that he was fond of the appellant and lacked knowledge of the robbery complaint against the appellant by his wife.


Learned trial Judge cautiously evaluated the testimonies of 1st P.W., 2nd P.W., 3rd and 5th P.W. and watching their demeanours accepted their testimonies as truthful witnesses having based his conclusion on credibility of witnesses an appellate court is precluded from evaluation of such evidence unless there is concrete proof from the printed evidence that the learned trial Judge failed to take advantage of his peculiar opportunity, I see no satisfactory and convincing reason from the printed evidence that the trial Judge failed to take advantage of the opportunity. I am therefore not inclined to disturb the evaluation and assessment of the pieces of evidence of 1st P.W, 2nd P.W. 3rd and 5th P.W. which he treated with circumspect. There is therefore no legal justification or bases to disturb the findings and there has not been any miscarriage of justice by the said findings, prosecution established the cause of death of deceased and that appellant killed the deceased.

In his brief of argument for the appellant leaned counsel contended that the learned trial Judge had already had a bias against the appellant with a predetermined finding against the appellant before he even considered the appellants case based upon the comment of the learned trial Judge that


“I shall however examine the defence of the accused further before coming to a finding as to whether I believe the P.W. 2 or not.”


My understanding of the submission is lack of the imputations of the imaginary scale, a Judge is to set up in a civil matter as laid down jogaji & Ors v. Odofin & Ors (1978) 3/4 S.C.91-98 by fatayi Williams, J.S.C. (as he then was).


Under our criminal justice and jurisprudence the burden of proof is one golden thread that it is the burden of the prosecution of proof the guilt of the accused to the hilt and beyond all reasonable doubt.


The complaint about pre-determination of the learned trial Judge based upon the extract from his judgment above has been most unfair the complaint is the converse of a careful Judge who took pains and meticulous to evaluate and asses the two sides of the prosecution and appellants cases before reaching his conclusion to believe or disbelieve the evidence of 2nd P.W. with respect the compliant lacks substance in that the learned trial Judge took a right approach by considering the evidence of both sides before believing or disbelieving the 2nd P.W. the attach is unjustifiable and lacked merit, it is rejected.


In his brief of argument at page 6,9 and 10 the appellant made a catalogue of the contradictions in the prosecution’s case and that should the leaned trial Judge had adverted his mind to them he would have reached a different verdict.


In respondents brief the emphasis that were described as contradictions are not material contradictions as the law is that were described as contradictions are not material contradictions touching on the proof of the case not irrelevant or minor contradictions.


In his submission learned counsel for appellant dwelt on the issue that at the P1, 2nd P.W. did not state he saw the appellant pointing a gun at the deceased who was rolling on the ground and in agony. That 2nd P.W. testified in the High Court of hearing another two gun shots in addition to the gun shot which attracted him to the scene and then made the very serious and damaging evidence of the pointing of the gun over the deceased. 5th P.W. the mother of 2nd P.W. stated when she heard a gun shot.


That the 4th P.W. having stated in his testimony that the appellant handed over the gun Exhibit A to him on 12th August 1978 at a time when it was common ground that appellant was already arrested and kept in custody on 11th, August 1978 showed P.W. was not a truthful witness that appellant handed gun to 4th P.W.

I have carefully gone through the listed points of contradictions and to apply as my guide Oputa, J.S.C.’s observation in Esangbedo v. The State (1989) 4NWLR (Pt.113) at 57 page 83.


“As a matter of fact witnesses to one incident reproduce the same or uniform account of that incident, the danger is that their evidence has been tailored, tutored and doctored. In actual life there is bound to be minor variations in the account of truthful witnesses. But when witnessed contradict one another on material particulars then they should not be believed”


My understanding is that the places of evidence adduced by the prosecution cannot have mathematical accuracy or precision what the law frowns at are material contradictions on important issues relevant to establish the ingredient of the offence. Much ado was placed on Exhibit F being the record of proceedings in the Preliminary Investigation forgetting that whether a point was made or not at the P1 depends on what questions and the points to be made by the prosecution at the P.1. Usually to discredit a witness as to previous statement made by him in a previous proceeding is to apply sections 199 and 209 Evidence Act Cap. 112, (1990) Laws of the Federation as applied in Saka Layonu & Ors v. The State (1967) NMLR 411; Onubogu v. The Queen (1974) 9 S.C. 1: Micheal Omisade & Ors v. The Queen (1964) 1 All NLR 233.


I adopt the observation of Ademola, CJN in Queen v. Iyanda (1960) SCNLR 595; (1960) 5 FSC 263 that


“Our attention was drawn by counsel to certain contradictions in the evidence of witnesses for the prosecution, we have given due consideration to these contradictions and have come to the conclusion that they are not of such magnitude for us to interfere with the conclusions reached by the learned trial Judge.”


With respect the contradictions complained about in the appellant brief of argument are not of such magnitude which requires interference by the Court of Appeal as they were based on the credibility of witnesses which evaluations are not perverse.

In the two statements made to the police admitted in evidence the appellant raised his alibi. When he testified he maintained the alibi and also denied frantically any connection with the murder of the deceased.


On appeal learned counsel for the appellant attacked the judgement that as 7th P.W. failed to check the alibi the result being that prosecution failed to puncture appellants defence therefore he is entitled to an acquittal.


Alibi (at elsewhere) means presence in another place than that described as being present at the scene of the crime at the time the crime was alleged to have been committed.


Where an accused person or as in the instant appeal wherein the appellant relied on his alibi as a defence, it is trite law that the burden is still on the prosecution to check on the alibi and to puncture it by credible evidence by establishing the same beyond reasonable doubt.


The appellant or an accused person has a correlative duty of furnishing the prosecution data to assist the prosecution to check on the alibi. Even if the details were given during the trial. But where the accused or the appellant[ fails to give with clarity his movement as to place, time and where and names with addresses of whom he interacted, the prosecutions failure to check on insufficiency of information cannot avail the accused person or e appellant who pleads his alibi.


In the instant appeal 7th P.W., the investigating policemen testified that the persons mentioned the appellant’s statement of 29th August, 1978 admitted as Exhibit C, he contacted all of them who all stated they never saw the appellant throughout the day. Having testified to that effect as the burden of proof is not immutable, the burden now shifts on the appellant to refute the testimony of the 7th P.W. by calling the persons he mentioned as witnesses and to subject them to cross-examination.


The burden on an accused person to establish his case is not as heavy as that on the prosecution to prove his case beyond reasonable doubt, but by preponderance evidence of probability as in a civil case. See Ntam & Anor v. The State (1968) NMLR 86; Patrick Njonvens & Ors v. The State (1973) 5 S.C. 17 at 65; Nwosisi v. The State (1976) 6 S.C. 109; Odidika v. The State (1977) 2 S.C. 21.


The burden on the accused to establish the alibi and the duty on the trial Judge are to be found in the observation of Idigbe J.S.C. in Yanor v. The State (19650 All NLR 193, (1965) NMLR 337 as follows:-


“On the defence of alibi, the law is that the jury should be directed that they should not disregard evidence of alibi unless there is stronger evidence against it see Chadiwick (1977) 12 CR APP R 247. Therefore while the onus is on the prosecution to prove the charge against an accused person the later has, however, the duty of bringing the evidence on which he relies for his defence of alibi, when such evidence is been adduced the court should consider it in the light of the evidence adduced by the prosecution in support of the charge against the accused and if in the end the court is unable to reach a decision on the question whether the evidence in support of the case for the prosecution is stronger than that produced in support of the alibi, the accused must be acquitted.:


Whilst Obaseki. AG J.S.C. stated in Eze v. The State (1976) 1 S.C. 125 as follows:

“The learned trial Judge correctly stated the law that in defence of alibi, the evidential burden rests on the accused person. Explaining the “evidential burden” Brett, J.S.C. in the case of Gachi & Ors v. The State (1965) NMLR 333 said at page 334:


“The word “alibi” means “elsewhere” and since it is a matter peculiarly within the knowledge of the accused person, if he was at some particular place other than that where the prosecution say he was at any material time, what has been called the “evidential burden” that is the burden of adducing or eliciting some evidence tending to show this, rest on him”


In the instant appeal the learned trial Judge in my view based upon the evidence before him where after the prosecution through 7th P.W. testified that all their persons mentioned in Exhibit C denied they saw the appellant on 11th August, 1978, the burden shifts on appellant to establish the preponderance of evidence of probability by calling the persons he alleged saw him in his village on 11th August, 1978. With respect failure on his part gave no alternative to the learned trial Judge than to reject rightly in my estimation the defence of alibi.


In the final result, the appeal fails for the reasons advanced above, it is accordingly dismissed. The conviction and sentence of the lower court are hereby confirmed.


{Nigerian Cases Referred to}

Ademola v. Sodipo (1992) 7 NWLR (Pt. 253) 251

Ajao v. Ashiru (1973) 1 ALL NLR (Pt. 11) 51

Akinbobola v. Plisson Fisko (Nig) (1991) 1 NWLR (Pt. 167) 270

Akpab v. State (1967) NMLR 185

Akpan v. State (1972) 4 S.C.6

Akpan v. State (1992) 6 NWLR (Pt. 248) 439

Anyiam v. Queen (1961) 1 SCNLR 78

Atanda v. Lakanmi (1974) ALL NLR (Pt. 1) 168

Bakuri v. State (1965) NWLR 163

Chewmoh v. State (1986) 2 NWLR (Pt. 22) 331

Ebba v. Ogodo (1984) 1 SCNLR 372

Ekpenyong v. Nyong (1975) 2 S.C.71

Esangbedo v. state 91989)4 NWLR (pt. 113) 57

Eze v. State (1976)1 S.C. 125

Garba v. Queen (1959) SCNLR 402

Hausa v. State (1992) 1 NWLR (Pt. 219) 600

Ikono v. State (1973) 5 S.C. 231

Iyanda v. Queen (1960) SCNLR 595

Kotoye v. C.B.N.(1989)1 NWLR (PT. 98) 419

Kuse v. State (1969) NMLR 153

Kuti v. Jibowu (1972) All NLR (Pt. 11) 180

Layonu v. State (1967) NMLR 411

Lewis & Peat (NRI) Ltd. v. Akhimien 91976) 1 All NLR (Pt.1)460

Mogaji v. Odofin (1978) 4 S.C. 91

Nasiru v. C.O.P. (1980) 1-2 S.C. 94

Njovens v. state (1973) 5 S.C. 17

Ntam v. State (1968) NMLR 86

Akinfe v. State (1988) 3 NWLR (Pt. 85) 729

Nneji v. Chukwu (1988) 3 NWLR (Pt. 81) 184

Nwosisi v. State (1976) 6 S.C. 109

Odidika v. State (1977) 2 S. C. 21

Okokor v. State (19870 NMLR 189

Olusanya v. Olusanya (1983) 1 SCNLR 134

Omisade v. Queen (1964) 1 All NLR 233

Onubogu v. State 919740 9 S.C.1

Onyegbu v. State (1994) 1 NWLR (Pt. 320) 328

Oteki v. A-G., Bendel State (1986) 2 NWLR (Pt. 24) 648

Owe v. Queen (1961) 2 SCNLR 354

Owoniboys tech. Serve, Ltd. v. John Holt Ltd (1991) 6 NWLR (Pt. 199) 550

Pwol v. Jang (1992) 7 NWLR (Pt. 25) 120

R.v. Harry (1938) 4 WACA 37

R.v. Laoye 91940) 6 WACA 6

R.v. Nwokocha (1949) 12 WACA 453

R.v. Ogbuewu 91949) 12 WACA 483

R.v. Weyeka (1934) 9 WACA 195

R.v. Bebetebe (1938) 4 WACA 67

Terab v. Lawani (1992) 3 NWLR (Pt. 321) 569

Union Beverages Ltd. v. Owolabi (1988) 1 NWLR (Pt. 68) 128

Vorgo v. State (1972) 1 All NLR (Pt. II) 1

Woluchem v. Gudi (1981) 5 S.C. 291

Yanor v. State (1965) 1 All NLR 193<![endif]>

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