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TYO AGERA & 5 ORS.
FEDERAL SUPREME COURT OF NIGERIA
16TH APRIL, 1962.
BEFORE THEIR LORDSHIPS
SIR ADETOKUNBO ADEMOLA, C.J.F. (Presided)
SIR LIONEL BRETT, F.J. (Read the Judgment of the Court)
SIR VANE BAIRAMIAN, F.J.
CRIMINAL LAW AND PROCEDURE – Murder – Identification – By people witnessing murderous attack who believed themselves to be in danger of being killed – Attitude of court.
CRIMINAL LAW AND PROCEDURE – Murder – Identification – When unreliable – Effect.
PRACTICE AND PROCEDURE – EVIDENCE – Admission – Murder – Admission by accused – Effect on unreliable identification.
J.A. Cole -for the Appellants.
A.A. Isikalu – for the Respondent.
BRETT, F.J. (Delivering the Judgment of the Court): The six appellants, with two other men, were charged in the High Court of the Northern Region with the murder of a man named Baba Dan Shehu. Baba Dan Shehu was a Hausa and the accused were all Tivs, and the evidence for the prosecution was that on the day in question, which was at a time when widespread rioting was taking place in the neighbourhood, a party of Tivs armed with matchets and other weapons and numbering fifty or more, came to the village of Jatau Atah, where the deceased lived, singing “To-day we are going to kill Hauas”. The deceased told his wife to look after the children and himself stood outside the compound. He was attacked with matchets and received at least three wounds, which caused his death from loss of blood and shock. If this story was accepted the killing of Baba Dan Shehu was murder by those who took part in it, and the only question in these appeals is whether the appellants, or any of them, were satisfactorily identified as having taken part.
The first appellant’s case will be considered separately. The evidence implicating the other seven accused was that of four eye-witnesses, the wife of the deceased, one of their children, and two Hausa neighbours. The evidence of these witnesses identifying the accused as having taken part in the murder was weakened by the fact that no regular identification parade was held. Instead, it would appear from answers given in cross-examination that the witnesses were taken to the prison at Gboko, where a large number of prisoners were in custody, and that one or more of them picked out each of the eight accused. It would have been more satisfactory if the prosecution had called evidence of the procedure adopted.
The identification of the appellant Vanger Agaku by the witness Abe was further weakened by her admission that she relied partly on the fact that when she saw him in prison he was wearing a cloth stolen from her during the attack on Jatau Atah village.
After the case for the defence was closed and the trial had been adjourned for judgment, the trial Judge wished to recall two of the identifying witnesses for the prosecution, and directed further adjournments for a total period of some ten weeks while endeavours were made to find them. When this proved impossible he delivered judgment convicting the six appellants and acquitting their two co-accused. He explained that the two witnesses in question were the only two who had identified the two accused whom he had acquitted and that he had wished to question them further; since the two men whom he had acquitted lived in Jatau Atah he felt that the other witnesses might have been expected to identify them if they had been present on the day in question.
People witnessing a murderous attack by a large crowd and knowing themselves to be in danger from that crowd cannot well be expected to observe all that takes place or everyone who is present, but in considering this appeal we must take it that the trial Judge did not regard the two witnesses whom he wished to recall as entirely reliable on the issue of identification. He also omitted to consider the unsatisfactory state of the evidence as to the circumstances in which the four eye-witnesses picked out the appellants. We are of the opinion that if there was a doubt as to the identification of the two who were acquitted it must affect also the identification of those who were convicted, with the exception of the first appellant, and that the only safe course is to allow the appeals and set aside the convictions of the second, third, fourth, fifth and sixth appellants. Judgments and verdicts of acquittal will be entered.
The case against the first appellant rests on quite a different footing, since he admits that he killed Baba Dan Shehu, though the circumstances in which he says he did so are entirely different from those described by the witnesses for the prosecution and amount, in substance, to a killing in self-defence on an occasion when no-one else was present. It is in evidence that on the day when Baba Dan Shehu was killed the first appellant was treated in the dispensary at Jatau Akah for a cut on the head and the appellant says that Baba Dan Shehu started the fight by inflicting this cut on him. The trial Judge disbelieved the first appellant’s version of the circumstances in which Baba Dan Shehu was killed, and we see no reason to say that he was wrong. Having disbelieved it, he had in the circumstances of this case no need to consider the defence of provocation as an alternative to self-defence, as has been alleged in one of the grounds of appeal. The first appellant’s admissions are, however, ample corroboration of the evidence identifying him as one of those who took part in the murder of Baba Dan Shehu and there are no grounds in his case for the doubt which we felt in relation to the other appellants. The appeal of the first appellant is dismissed.
ADEMOLA, C.J.F.: I concur.
BAIRAMIAN, F.J.: I concur.
Appeal of 1st Appellant dismissed.
Appeals of 2nd-6th Appellants allowed.