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F.S.C. 101/1961


3PLR/1961/3 (FSC)





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




Rodmi Williams Q.C. (with him Nzegwu) for the Appellant.

Wheeler, Senior Crown Counsel, for the Respondent.



High Court of Northern Region, Jos, Judicial Division



CRIMINAL LAW AND PROCEDURE:- Murder – Multiple Eye witnesses – weight of evidence needed to convict for murder – Need for consistency in the evidence given by multiple witnesses

CRIMINAL LAW AND PROCEDURE:– Murder – Finding of Trial Court not supported by the evidence – Whether prosecution’s case proved beyond reasonable doubt.

ETHICS – PROSECUTION: Failure to prove case due to inconsistent testimony from multiple prosecution witnesses – Attitude of Court thereto

PRACTICE AND PROCEDURE – APPEAL – Finding of fact by Trial Court – Attitude of Appellate Courts to invitation to interfere therewith – How treated





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

The appellant was convicted in the High Court of the Jos Judicial Division in the Northern Region on a charge of murder and was on the 21st day of February, 1961 sentenced to death. He has appealed to this Court against his conviction.


The circumstances leading up to the charge may be briefly summarised as fol­lows: supporters of two rival political parties were involved in a disturbance which broke out outside the Alkali’s Court in Maiduguri. During the melee which followed some men were stabbed. It was alleged that the appellant went up to the deceased, Dajia Zango, and stabbed him with a knife; he sustained injuries which caused his death.


The learned trial Judge accepted the evidence of three of the eye-witnesses to the killing, and rejected the evidence of the appellant. The material part of his judgment is as follows:­

Now I am quite satisfied that Mustapha Hauwani, Mai Male and Mallam Sanda were substantially truthful witness and I accept their evidence. I reject the accused’s version of what happened. Upon their evidence I am satisfied that the only person who stabbed the deceased was the accused. It is true that their evidence of the stabs and the medical evidence varies to some extent; but it is, in my view, substantially consistent, especially when one considers the turmoil which was going on at the time. The same applies to the conflict in the evi­dence as to how Mallam Sanda got possession of the knife with which the ac­cused stabbed the deceased. I am satisfied that these witnesses called by the prosecution were truthful and I believe, and find proved, that it was the accused who stabbed the deceased causing injuries from which the deceased died the same day.


Counsel for the appellant has attacked this finding, and argued that there were such contradictions in the evidence of witnesses for the Crown which, properly considered, would have entitled the appellant to an acquittal.


There is no doubt that the case hinges on the identity of the appellant. It is hard­ly necessary for us to say that the identity of the appellant rests entirely on the evi­dence of the witnesses who were present at the scene and saw what actually happened. If their evidence is such that leaves no room for doubt and is accept­able, its value cannot be enhanced by any other collateral facts or circumstances.


We have carefully considered the various contradictions in the evidence of these witnesses who were present at the scene. Of the twelve witnesses who gave evidence for the Crown five, namely 2nd witness, 3rd witness, 4th witness, 6th wit­ness and 7th witness, were present at the scene and gave evidence of what they saw.


The learned trial Judge in the passage of his judgment herein before referred to accepted the evidence of the 4th, 6th and 7th witnesses respectively.


The relevant part of the evidence of the 2nd witness for the Crown is as fol­lows:­

…I know Dajia Zango. I saw him at the Court that day. I saw him when the fight started. He was … about 25 feet from me. I saw him stabbed. The per­son who stabbed him was Abdullahi Isa (accused identified). I did not know accused before that day. When accused stabbed Dajia I took the knife from him, accused. Accused stabbed Dajia with a knife. I gave the knife to the Police. I gave it to Abba Ail Zanna … After Dajia had been stabbed by accused he went to a Neam tree … and sat down at the foot of the tree … After 1 had taken the knife from accused I went to Dajia …


Under cross-examination, he said:­


…When I took the knife from him (accused) I gave it to the Police and he was arrested by the Police immediately and taken inside the Court … It is not cor­rect that the Police hit the accused’s hand with a stick and the knife fell down … The Police did not help me to take the knife from accused …


The 3rd witness for the Crown, Police Constable Abba Ali Zanna, is recorded as having said:­

… During the disturbance 2nd prosecution witness gave me a knife. The knife had blood on R. I gave R to Corporal Zanna. I tendered the knife (Exhibit A).


Another eye-witness, the 4th witness for the Crown, Mustapha Mauwami, said:

… I was there when there was the disturbance. Dajia was sitting near me. I was with him when the fight started. Both Dada and I got up when it started. Then Abdullahi Isa (accused) came and stabbed Dajia … Dajia fell down. Accused’s hand which held the knife was beaten by a stick held by a dandoka. The knife fell from accused’s hand. 2nd prosecution witness picked up the knife and gave it to the dandoka.


The relevant portion of the evidence of the 6th witness for the prosecution (Mia Mele), another eye-witness, runs as follows:­

I saw accused stab Dajia on the back. I saw accused stab Dajia again. A po­liceman came. He hit accused’s hand with a stick. The knife fell down. Mal­lam Danda picked up the knife and gave it to the dandoka. Dajia was carried to hospital.


We find it difficult to reconcile the two major contradictions in the evidence of these witnesses. Whilst the 2nd witness for the Crown maintained he took the knife from the appellant after he (appellant) had stabbed the deceased, other witnesses said the appellant was struck with a stick on his hand; he dropped the knife and the 2nd witness picked it up.


Again, according to the 2nd witness for the Crown, the deceased after he had been stabbed walked up to a Neam tree and sat down at the foot of it. From other witnesses one gathered that Dajia fell down immediately he was stabbed and was later carried to the hospital.


Then came the surprising part of the case-the evidence of yet another import­ant witness-the 7th witness for the prosecution, Police Constable Mohammed Shua. According to this witness he was present during the disturbance. He saw the ac­cused with a knife. He had injuries on him. He took the knife from the accused; it had blood-stains on R; he arrested the accused and put him in the guard room at the Alkali’s Court. The knife (Exhibit B) would, therefore, appear to be a second knife taken from the appellant.


We have considered this evidence with the evidence of the 2nd witness for the Crown, who stated that after he had taken the knife from the appellant the latter was arrested by the Police immediately and taken into Court Hall. We must confess we feel very uneasy about the evidence of the 2nd witness for the Crown on whom the learned trial Judge relied. In the absence of further explanation, we cannot reconcile the story which stated that the appellant had been arrested immediately the knife (Exhibit A) was taken from him and he was detained in the Court hall with the other story that the appellant was found with injuries on his body carrying a blood­stained knife in his hands in the middle of what can rightly be called a big fighting mob where he was arrested and taken to the cell. We hesitate to think that the two stories relate to the same man, the appellant.


The appellant denied all knowledge of the knife (Exhibit A), and denied that it was taken from him. He claimed the knife, Exhibit B, and did not deny the circum­stances under which k was taken from him when he was arrested.


We feel bound to say that these contradictions we have brought out in the evi­dence of the three witnesses relied upon by the learned trial Judge are of vital im­portance and that if they had received such consideration as they deserved in the hands of the learned trial Judge, we do not think he would have arrived at the con­clusions he did. Further, the evidence of the 7th witness for the Crown, to our mind, has left one in a state of uncertainty as to the truth of the evidence of the 2nd witness for the Crown, On the whole, the evidence does not show that degree of certainty which should be the criterion in a criminal trial. Rather, there is room for doubt whether it was the appellant who actually stabbed the deceased in this case. He (appellant) might have stabbed somebody else during the fight, but it must be proved beyond doubt that it was he who stabbed the deceased.


We find ourselves unable to support the conviction.


The appeal is allowed:


The verdict and order made are set aside.


Appellant is discharged. Appeal allowed: Conviction quashed.


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