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5TH MAY, 1967.

SUIT NO. SC 72/1967.

3PLR/1967/20 (SC)








  1. A. Cole, – for the Appellant
  2. M. E. Gbemuda, Senior State Counsel, – for the Respondent



CRIMINAL LAW AND PROCEDURE – Murder – Failure by trial court to advert to various discrepancies in the evidence of witnesses on material points – Failure to make adequate findings on material points – Miscarriage of justice – Improper inferences by trial court.



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

The appellant in this appeal was convicted of murder by Rhodes-Vivour, J. in the High Court of Mid-Western Nigeria, sitting at Sapele on the 3rd of February, 1967.

Mr. Cole for the appellant has argued only the general ground of appeal that-

‘The judgment of the Court is unwarranted and unreasonable and cannot be supported having regard to the weight of the evidence.”

His main criticism of the judgment is that it did not properly advert to the various discrepancies in the evidence of the witnesses on a number of most material points or make any adequate findings in regard to them.

His first point was to the time when the killing was said to have taken place. There were only two eye-witnesses and the 2nd prosecution witness, the brother of the deceased, said that on the 16th January, 1966, “at about 8 a.m.” the incident occurred though later in his evidence he referred to some policemen following him to the scene ‘that same night’ and under cross- examination he said:

“I was present throughout the day at my brother’s house before the stabbing.”

The other eye-witness (3rd prosecution witness) the wife of the deceased said the incident was about 7 p.m. and the 4th prosecution witness who came up on hearing the shouts of the 2nd and 3rd prosecution witnesses and found the de-ceased dead said k was about 8 p.m. The 2nd prosecution witness gave his evidence in Pidgin English so it is at the least unlikely that he said “8 a.m. but we do not consider it safe, as the Senior State Counsel for the respondent invited us to do, to hold that it was just a typographical error when the 3rd prosecution witness in her evidence referred to the accused coming to the house to speak to the de-ceased and then said “later that day at about 7 p.m.” the accused came to the house with his parents as that clearly suggests that there was more than one visit to the house on the day of killing, so the 2nd prosecution witness may have been con-fusing the two occasions.

The second criticism is that the two eye-witnesses gave conflicting stories of where the killing took place. The 3rd prosecution witness said it was “just out of our house’, whilst the 2nd prosecution witness implied that k was in the room of the deceased.

A criticism of the evidence of the 4th prosecution witness is that he said ‘the accused stabbed the deceased with a knife and threw it away when I held him”, but it appears from his earlier evidence that the deceased was lying dead when he came up so at any rate the statement as to the accused stabbing the deceased must have been hearsay.

Another criticism was that the 6th prosecution witness, the policeman said there was no blood at the scene whilst the 4th prosecution witness said he saw fresh blood on the ground and the 5th prosecution witness said he saw plenty of blood at the scene. The 6th prosecution witness did say he found the corpse at the back of the house and no one suggested that was where the killing took place so he may have been referring to that as the “scene” where he saw no blood but we can-not be certain in regard to it.

Yet another criticism is that though the learned trial judge referred to the evidence of the 6th prosecution witness that the accused showed him where he threw away the knife he did not note that the 6th prosecution witness under cross-examination said that the accused made his statement before the knife was found, yet the statement on the face of it appears to have been made at Sapele and the 6th prosecution witness never suggested he made two visits to the scene of the crime with the accused.

The learned trial judge did not in any way deal with or refer in his judgment to these Inconsistencies and in Sholuade v. The Republic delivered on 20th May, 1966, we Indicated that the learned trial judge there should have brought to the attention of the jury various inconsistencies and his failure to do it was a serious miscarriage of justice and in our view this principle applies equally when a judge is sitting alone and he ought to deal with and make findings in regard to important discrepancies or inconsistencies and he did not do so in this case.

Mr. Cole further objected to the following passage in the judgment:-

‘The father and mother of the accused were in the village on the 16/1/66 as stated by the 2nd and 3rd prosecution witnesses. This was confirmed by the accused in his statement Exhibit C.O.1 when he said “After the fight Governor took me home and 1 met my parent at home”. Since then, however, his father and mother have not been seen and their whereabouts unknown. Clever Obie 6th prosecution witness the Nigeria Police Corporal No. 2661 who investigated this case said the parents of the accused person have not been seen. I am left with the impression that they are on the run. Otherwise I fail to see how their son, the accused, who lives in the same house with them up to the 16/1/66 and Is now being tried with murder could have been left alone by his parents with-out any help or support from them. There is no evidence of any bad blood between the accused and his parents. The accused called no witnesses.”,

because this was wrongly implying that it was a matter of comment adverse to the accused that his parents did not give evidence but were “on the run”.

We Indicated in Orosunlemi v. The State S.C. 53/67 delivered on 28th April, 1967, that the learned trial judge there misdirected himself by inferring that if an accused was innocent he would have surrendered to the police and not run away, so a fortiori it was wrong here to Infer adversely to the accused that the parents of the accused were on the run and would not give evidence on his behalf.

Finally, Mr. Cole objected to the passage of the judgment which read:-

“Under cross-examination, the 6th prosecution witness told this Court that he found out during the Investigation that there was a dance along the main street in Irodo village on the 16/1/66, and not at Atakurievbe house, but that the accused and the deceased did not attend the dance. This piece of evidence was not contradicted by the defence.”

as first of all the evidence of the 6th prosecution witness was hearsay and in any case the accused did in fact contradict the evidence as he said in his own evidence that he was at the dance, and we agree, therefore, that the learned trial judge misdirected himself In this respect.

Having regard to these misdirections and inadequacies in the judgment amounting in our view to a serious miscarriage of justice we are unable to uphold his conviction and we accordingly allow this appeal, set aside the judgment and sentence and enter a verdict of acquittal.

Appeal allowed.


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