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Namseh Eno (with him Ladioo (Miss) – for the Appellants
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]
Criminal Law and Procedure – Murder contra S254(4) Criminal Code, Cap. 28 L.W.R.N. – Defence resting case on prosecutions case – Section 287(I)(a), Criminal Procedure Act – Effect of.
Evidence – Evidence of witnesses – Duty of trial court – Evaluation by appellate Court – Concurrent findings.
CRAIG, J.S.C. (Delivering the Lead Judgment):
The two Appellants herein were charged before the Shaki High Court Oyo State with murder contrary to section 254(4) of the Criminal Code Cap. 28 of the Laws of Western Region of Nigeria 1959 made applicable to Oyo State.
The particulars on the indictment were that on the 3rd day of September 1981 along Sepeteri/Igboho Road, in the Shaki Judicial Division they murdered one Mr. S. O. Ogundare, a Superintendent of Police. Altogether 10 witnesses testified for the state and at the close of the case for the prosecution the appellants’ counsel announced that the defendants would not give evidence on oath, but would rest their case on that of the prosecution.
At the conclusion of the whole case, the learned trial Judge (Adeniran, J.) in a reserved judgment considered the evidence before him and found the appellants guilty as charged. The appellants were dissatisfied with that judgment and appealed to the Court of Appeal on various grounds of appeal which included some on the facts.
The Court of Appeal in a well-considered judgment looked carefully into the complaints of the Appellants and came to the conclusion that the appeal lacked merit and therefore dismissed it.
The appellants have appealed further to this court on one original ground of appeal but with the leave of the court they have filed three additional grounds. Essentially these three grounds are similar to those which were canvassed before the court of appeal and they are as follows:
The learned trial Judge and the learned Justices of the Court of Appeal erred in law and on the facts of the case when in convicting the appellants they re-lied solely on the testimony of Rasaki Lalemi, the 5th P.W. to the exclusion of other independent, material and available eye-witnesses.
Particulars of Error
(1) The testimony of Rasaki Lalemi does not Induce belief because of the inherent improbability of his account of what had occurred.
(a) The late Supol Ogundare could not have approached the three armed Hausa men and attempted to seize all their weapons at the same time with his pistol in sheath.
(b) If the late Supol Ogundare at all fired, he could not have missed all his assailants in the circumstances of this case.
(2) The description of the attack on the deceased by the appellants as described by the appellants is different and more probable than the description of the same episode by Rasaki Lalemi, the only prosecution eye-witness.
(3) The driver of the police Land Rover, Anifowoshe did not shoot at the 1st Appellant, while the first appellant was running away from the scene of the incident as testified to by Rasaki Lalemi.
(4) In the circumstances of this case the prosecution should beside Rasaki Lalemi have called other witnesses whose evidence could have settled the case one way or the other.
The learned trial Judge and the learned Justices of the Court of Appeal erred in law and on the facts of the first appellant’s defences of self-defence and pro-vocation when they failed to make any findings on the first appellant’s statement that it was in response to the two shots that the late Supol Ogundare fired at his legs that he cut him with Exhibit D – the Matchet.
Particulars of Error
(1) The prosecution did not prove beyond reasonable doubt that it was the first Appellant that cut the deceased with the matchet when the deceased approached the three Hausa men to seize from them their weapons
(2) The prosecution did not testify on the Investigation they carried out on the defences of self-defence and provocation put forward by the Appellants and the learned trial Judge and the learned Justices of the Court of Appeal did not consider the defences in arriving at their decision to convict the appellants of murder.
(3) The defence of self defence and provocation were available to the 1st and 2nd Appellants.
The Decisions of the learned trial judge and the learned Justices of the Court of Appeal are altogether unreasonable, unwarranted and cannot be supported having regard to the evidence before the court.
(1) The Court of Appeal did not evaluate some of the findings of the learned trial Judge before affirming them.
(2) The Court of Appeal made inferences on points on which the learned trial Judge had made no findings.
(3) The learned Justices of the Court of Appeal rejected the plea of self defence and provocation because the appellants rested their defence on the case of the prosecution.”
It is necessary to state right from the onset that this appeal rested mainly on the facts and on the findings made by the lower courts on those facts. In this respect, this court has consistently held that where there have been concurrent findings of facts by the High Court and the Court of Appeal, the attitude of this court is not to interfere with those findings unless there are special circumstances for doing so; as for instance where the findings were perverse or where they could not be sup-ported having regard to the evidence before the court. See the case of Chief Frank Ebbs v. Chief Ward Ogodo (1984) 4 S.C. 84 at 98. In Chief Woluchem v. Chief Simon Gudi (1981) 5 S.C. 291 at 326, the Supreme Court held that –
“It is now settled law that If there has been a proper appraisal of evidence by a trial court, a court of appeal ought not to embark on a fresh appraisal of the same evidence in order merely to arrive at a different conclusion from that reached by the trial court.”
From this, it is clear that the main task of the appellants is to convince this Court that the evaluation of evidence carried out in the two lower Courts was wrong, and to show that it is necessary to interfere with the findings of those facts. I shall now briefly state the facts.
The circumstances under which the appellants were charged with murder were based on two contemporaneous incidents which happened on the same day. Two eye-witnesses (1st P.W. and 2nd P.W.) gave evidence in respect of the first Incident whilst another eye- witness (5th P.W.) testified in respect of the second incident.
On 3rd September 1981, the appellants were two of three Hausa men who boarded a public transport travelling from Igboho to Sepeteri. There were four other passengers on the vehicle, and one of them was a forest guard (1st P.W.) who sat in front of the lorry. Whilst the vehicle was in motion, one of the passengers sitting at the back raised an alarm, saying “Oyobe, Oyobe” meaning – “he has pulled out a knife.” When the first guard turned to see what the commotion was about, the 1st appellant stabbed him on the chest. Whereupon the 1st P.W. too raised alarm and the driver (2nd P.W.) had to stop the vehicle. Before the forest guard could come down from the vehicle, the 1st appellant had already alighted; he rushed to the 1st P.W. and attacked him again. He inflicted a matchet cut on 1st P.W’s head whereupon the 1st P.W. pushed him down and escaped into the bush. The other passengers including the driver also fled. From his hiding place, the driver kept watch over his lorry. Sometime later, he saw the three Hausa men pick up their luggage from the lorry and proceed on their journey on foot. When the coast was clear, 2nd P.W. went back to his vehicle and sounded his horn, and then the forest guard (1st P.W.) and three other passengers returned to the lorry. The 1st P.W. was bleeding and the driver decided to take the 1st P.W. to the Shaki Baptist Hospital. On the way to Shaki, they passed the three Hausa men on the road and soon after saw a police vehicle approaching in the opposite direction. 2nd P.W. stopped the vehicle and reported the stabbing incident to the policemen. At that stage, the police officers asked two of the other passengers to join them in the Police vehicle so as to identify the Hausa men. The 2nd P.W. left the scene with the injured forest guard, and at Shaki he lodged a report at the police station.
The 5th P.W. Rasaki Lalemi, (a police corporal) was in the Police landrover when it was stopped by the 2nd P.W. Also in the vehicle where Mr. Ogundare, a Superintendent of Police and police driver (P.C. Anffowoshe). After they had re-calved the complaint from the 2nd P.W., two passengers came Into their vehicle and together they continued their journey. Sometime later, they saw the three Hausa men who were identified by the passengers in the vehicle.
At this stage, Mr. Ogundare stopped the police vehicle and alighted. He beckoned to the Hausas to come forward. According to the 5th P.W’s evidence:
‘The three Hausa men on that day were holding knives, arrow and cutlass. S.P Ogundare asked them to bring all these weapons with them. S.P Ogundare was moving towards the three Hausa men. When he attempted to seize the weapons from them one of the three Hausa men who was at the rear and holding a matchet dealt a matchet cut on S.P. Ogundare’s forehead. It was the first accused who dealt the matchet cut on Ogundare’s forehead. As S.P. Ogundare was inflicted with the matchet cut he was covered in his own blood. He staggered back and was trying to take out his pistol from his pocket. The 1st accused continued dealing him several matchet cuts. S.P. Ogundare managed to fire some shots but as blood had covered his face, he could not aim at any object but fired to scare away his attackers. I rushed forward to hold back the 1st accused and the 2nd accused stabbed me on my right hand palm. I moved back; and the third Hausa man who is not now in court gave S.P. Ogundare a matchet cut on the right hand and as a result the pistol fell off to the ground. The driver of our vehicle came down and as he was trying to come to our assistance, the third Hausa man who is not now in court scared the driver away by flying the matchet at his face. The driver and myself then ran Into the bush for our dear lives. We hid at a distance from where it was possible to watch all that would be going on. We thereafter saw S.P. Ogundare fall down. The three Hausa men observing that S.P. Ogundare became helpless started to Inflict him with stabs and matchet cuts.”
When the appellants had left, the 5th P.W. and the police driver came out of the bush, and search for S.P. Ogundare’s pistol. The police driver found it and he pursued the three Hausas. He fired at the 1st appellant and he fell down. He also shot the 3rd Hausa man and he too fell down. The 2nd appellant managed to escape Into the bush, but he was caught on the following day. S.P. Ogundare’s corpse was later deposited in the hospital mortuary, whilst the two injured Hausa men were admitted for treatment.
At the end of that sorry tale, the 5th P.W. was rigorously cross- examined, but in his judgment, the learned trial Judge found as a fact that ’The 5th P.W. remained unshaken.”
As previously stated, the appellants did not give evidence in rebuttal of the grave allegations made against them by the 5th P.W. However, soon after they were arrested, the appellants made written statements to the police. In his own statement, the 1st Appellant said in part:
‘The policemen ordered us to enter their vehicle. We did not argue with them. Myself and Danladi Atta entered the vehicle and they received our loads and put it in the front of their vehicle (land rover). When I was about to enter into police vehicle the police officer then fired me with his gun on my leg two times. As I felt the pain I said Danladi Attah please in the name of God help me, he then brought a matchet for me. I then cut the police officer on his forehead two times because of the shooting he fired me and that is why I also cut him with matchet. He fell down and 1 also fell down on the ground.”
In his own statement, the 2nd Appellant stated:
“He (meaning the 1st accused) asked me to take the matchet in the front of the police land rover. I answered him that I will not take it; he insisted that I should take it for him. I then went to the front of the police land rover and took the matchet he asked me to give him. I refused he pressed so much he repeated same about 4 times before I gave him the matchet, before giving him we were dragging ourselves before I left for him.”
It will be seen from these statements that the defence which the 1st Appellant was putting up was that of provocation and/or self defence. In effect, he admitted that he matchetted the deceased, but stated that he did so under great provocation in consequence of the fact that the deceased had previously shot him twice on the legs.
With regard to the 2nd Appellant, he said that he did not actually kill the de-ceased but had merely handed over to the 1st Appellant the matchet which the 1st Appellant used in killing the deceased. He did so after a persistent demand by the 1st Appellant.
The learned trial judge considered these statements along with the evidence of 5th P.W. and made the following findings of fact:
The Court then rejected the account of the incident as given by the 1st accused in his statement Exs. A. B. and L on the Issue of self-defence. The learned Judge added: ‘This however is not because he did not give evidence but because I have seriously considered both versions and I have no doubt in my mind in accepting that of the 5th P.W.”
In regard to the 2nd appellant, the Court found as follows:
“I have said I believe the evidence of the 5th P.W. as regards his account of the part played by the 1st accused. I also believe and accept his account on the 2nd accused. Apart from the evidence of 5th P.W. the 2nd accused himself said in his statement that he gave the 1st accused the matchet which the latter used to kill the deceased although he said he did it under pressure. He said this to exculpate himself. On his own admission he is caught up with Section 7(c) of the Criminal Code.
Further on the evidence of the 5th P.W. which I accept, he, the 2nd accused prevented the 5th P.W. from arresting the situation when he stabbed the 5th P.W. who tried to stop the 1st accused from inflicting other matchet cuts on the deceased after the 1st one. This piece of evidence which I accept also brings 2nd accused within the purview of the provisions of Section 7(c) of the Criminal Code.
For the above reasons, I reject the submission of learned counsel for the 2nd accused that he was merely present without taking any pan.”
In the face of these powerful findings of facts, the appellants appealed to the Court of Appeal complaining that there was no proper evaluation of the evidence but the lower court rejected that submission.
Before us, the appellants’ counsel has formulated three Issues which he wants this Court to look into and they are as follows:
“1. Whether in the circumstances of this case, the learned trial Judge and learned Justices of the Court of Appeal were right in relying solely on the testimony of Rasaki Lalemi, the 5th P.W. in deciding to convict the Appellants of the offence charged without calling other eye-witnesses who were present.
“2. Whether in view of the fact that the confessional statements of the Appellants were presented in evidence by the prosecution and admitted and considered by the lower courts in arriving at their decision to convict the Appellants, it was fatal to the case of the Appellants in the circumstances of this case, that they did not testify in Court but rested their defence on the case of the prosecution.
“3. Whether either from the findings of fact or from inferences drawn from the facts the decision of the lower Courts to convict the Appellants were not al-together unreasonable, unwarranted, unsupportable having regard to the evidence before the Court and having regard to the unresolved conflict in the accounts of events preceding the matcheting of the deceased by the 1st Appellant.”
I shall deal with the 3rd Issue first. In his oral submission, the appellants’ counsel was unable to show any unresolved conflict in the evidence, nor could he pin-point any unreasonable findings of fact made by the trial court and confirmed by the Court of Appeal.
I have myself gone over the record of appeal and 1 am satisfied that the two lower courts correctly evaluated the evidence and any complaint in this regard is completely unfounded.
In regard to the 1st issue, the appellants’ complaint is that the trial Judge had convicted the appellants on the evidence of only one eye-witness, when two others were available. Unfortunately counsel did not state what these two would have said which was different from what the 5th P.W. had already said. Further, no foundation of any sort was laid by the defence either under cross-examination of prosecution witnesses or In the testimony of any defence witness which might tend to show that the evidence of the 5th P.W., was not credit-worthy.
In my view, the lower Court (per Onu, J.C.A.) correctly stated the law when it said that it was unnecessary for the prosecution to call every available piece of evidence. In the case of Samuel Adaje v. The State (1979) 6-9 S.C. 18 at p.28, the Supreme Court held that:
“All that the prosecution need do is to call enough material witnesses in order to prove its case; and in so doing, it has a discretion in the matter.”
See also E. Okonofua & Anor. v. The State (1981) 6-7 S.C. 1 at p.18.
There is in fact no law or rule of practice which stipulates that any particular number of witnesses should be called in proof of any case. If one credible witness testified on an issue and there is no other evidence tending to show that the testimony of that sole witness is untrue, the Court may believe him. In this respect, the trial Court who saw and heard the witness is In a better position than an appellate Court to decide on the credibility of such witness. Igbo v. The State (1975) 1 All N.L.R. (Part II) 70 at p.75.
In the instant appeal, three eye-witnesses who were present and witnessed the circumstances leading to the murder, gave evidence about what they saw and did, and they were believed. This, in my view, is an end of the matter. There is no merit in this ground of appeal and It is dismissed.
I now come to the 2nd issue formulated by the appellants’ Counsel. Unfortunately, It was clumsily worded, but the Respondent’s Counsel has in his brief given a clearer version of the issues thus:
“2. Could the defence of provocation and self-defence avail the appellants having regard to the facts of this case as well as the fact that the appellant rested their case on that of the prosecution?”.
The defences of provocation and self-defence were raised by the 1st Appellant in his statement to the police. This statement was tendered by the prosecution and received in evidence. Thereafter the Appellants did not testify in their own defence but “rested their case on that of the prosecution.” All the same, in his over-all consideration of the evidence, the trial Judge did not hold this against them he nonetheless considered the defence raised in their written statements; he came to the conclusion that the story, of the 5th P.W. was more probable and accepted it.
The points which fall for decision on this appeal are:
The answer to the first question is covered by a statute.
Section 287(1) (a) of the Criminal Procedure Act stipulates three alternatives open to an accused person after the prosecution has dosed its case. The accused may:
In the instant case the Appellants chose the third alternative and they were well within their legal rights to do so. But the legal effect of that is this, that if in the course of the hearing, prosecution witnesses had given evidence which called for rebuttal or some explanation from the appellants and that rebuttal and/or explanation was not forthcoming, then the Court would be free to accept the uncontradicted evidence of the prosecution witnesses. See the case of The State v. Nafiu Rablu (1980) 1 N.C.R. 47;Igbo v. The State (1978) 3 S.C. 87.
In the case on hand, evidence was given that:
(a) Whilst S.P. Ogundare was asking the appellants to surrender their weapons, the 1st Appellant came from the rear and struck the deceased with a matchet on the head.
(b) The 2nd Appellant also joined in attacking the deceased until he fail down dead.
(c) When the 5th P.W. wanted to rescue the 1st Appellant, the 2nd Appellant stabbed him on the head and prevented him from assisting the deceased.
These and other matters called for a rebuttal from the appellants but none was offered and in my view the trial Court was right to come to a decision on the evidence available to it.
In regard to the second question posed above, what does it mean when an accused rests his case on that of the prosecution? In my view, it means no more than that the accused does not wish to place any facts before the Court other than those which the prosecution had presented in evidence. It also signifies that the accused is satisfied with the evidence given and does not wish to explain any fact or rebut any allegations made against him. This of course does not prevent the accused (or his counsel) from making legal submissions on the evidence before the Court. He could for instance, say that even if all the evidence were believed, ft would not support the charge before the Court, or he could submit that the evidence was so conflicting or had been so discredited that ft is not credit-worthy. No such submissions have been made on this appeal and I am satisfied that the appellants were rightly convicted on the evidence before the trial Court.
There was in fact no merit on any of the grounds of appeal canvassed and it was for this reason that the. Respondent’s Counsel was not called upon.
In consequence of the foregoing, the appeal fails on all grounds and it is dismissed. The conviction and sentence passed on the Appellants by the High Court, Shaki, and affirmed by the Court of Appeal, Ibadan, are hereby sustained.
OBASEKI, J.S.C. I have had the pleasure of reading in draft the judgment just delivered by my learned brother, Craig, J.S.C. and I agree that the appeal be dismissed for lack of merit.
The appellants were arraigned before the High Court, Shaki on a charge of murder of Police Superintendent S. O. Ogundare on or about the 3rd day of September, 1981. They were tried and convicted by Adeniran, J. and sentenced to death.
During the trial, the appellants called no evidence and did not testify. They rested their cases on the evidence adduced by the prosecution through 10 prosecution witnesses. Being dissatisfied with the judgment of the learned trial judge, the appellants appealed to the Court of Appeal holden at Ibadan. Their appeal came before the Court of Appeal (Coram, Omo, Ogundare and Onu, JJ.C.A.) sit-ting at Ibadan. After hearing arguments of counsel, the Court of Appeal dismissed the appeal for lack of merit. The decision did not give satisfaction to the appellants, so they have further appealed to this Court. Three grounds of appeal were argued. These grounds were argued extensively in a brief running to 33 pages filed by the appellants. The respondent filed a reply brief. At the hearing of the appeal, appellants’ counsel directed the court’s attention to the issues raised in the grounds of appeal for determination by the court and stressed the point that of the several eye-witnesses alleged to have been present when the appellants attacked and slew the deceased with a matchet, only one eye-witness, P.W.5, was tendered to testify at the hearing. Learned counsel observed that although his evidence was accepted and believed by the learned trial judge, the totality of the evidence could not properly inspire belief. He found the statements made by the appellants to the police though confessional, at variance in matters of detail from the evidence of P. W.5.
Learned counsel for the respondent submitted that there is uncontradicted over-whelming evidence to support the conviction and sentence. He further submitted that although the evidence of 5th P.W. alone was sufficient to support the conviction, the confessional statements made by the appellants provided ample corroboration to establish the case for the prosecution beyond doubt.
The three issues for determination formulated by the appellants are as follows:
(1) Whether in the circumstances of this case, the learned trial judge and learned Justices of the Court of Appeal were right in relying solely on the testimony of Rasaki Lalemi, the 5th P.W. In deciding to convict the appellants of the offence charged without calling other eye-witnesses who were present;
(2) Whether in view of the fact that the confessional statements of the appellants were presented in evidence by the prosecution and admitted and considered by the lower courts in arriving at their decisions to convict the appellants, it was fatal to the case, that they did not testify in court but rested their defence on the case for the prosecution.
(3) Whether either from the findings of fact or from inferences drawn from the facts the decision of the lower courts to convict the appellants were not al-together unreasonable, unwarranted, unsupportable, having regard to the unresolved conflict in the accounts of events preceding the matcheting of the deceased by the 1st appellant.
In view of the evidence on record, the findings of the learned trial judge and the Court of Appeal, the above Issues must be resolved in favour of the respondent and against the appellants.
It is the law supported by a long line of authorities that the evidence of one credible witness accepted and believed by a trial court is sufficient to justify a conviction. See Oteki v. Attorney-General of Bendel State (1986) 2 N.W.L.R. 646, 643, 668; Anthony Igbo v. The State (1975) 1 All N.L.R. (Part II) 70 at 75.
In the instant appeal, the deceased (S.O. Ogundare) was, while in the execution of his police duties, attacked viciously by the 1st appellant who on his own ad-mission, inflicted mortal wounds on him with the matchet handed over to him by the 2nd appellant. All this took place in the presence of the 5th P.W. Further, the appellants did not deny the attack and the Injury inflicted which caused the death of the deceased. They admitted the facts in their statements to the police. But 1st appellant explained in the statement that he attacked in retaliation for being shot in the legs by the deceased. This allegation of the deceased shooting the 1st appellant was destroyed by the evidence of the 5th P.W. who denied that the deceased ever shot the appellant in the legs and explained that the police driver shot the 1st appellant in the leg to effect his arrest when he was fleeing after matcheting to death S. O. Ogundare. The behaviour of the 1st appellant, before, during and after the incident received due consideration by the learned trial judge. On this issue, he said:
‘The behaviour of the 1st accused before, and during and after the incident must be taken together. There is evidence before me of the 1st and 2nd P.W., i.e. Akinwunmi Ogundare and Sunday Adetunji that the 1st accused for unknown cause stabbed the 1st P.W. on the chest in the toyota bus driven by the 2nd P.W. and inflicted a matchet cut on the 1st P.W’s head while trying to come out of the vehicle. The 1st accused in Exhibit A and A1 also said that he stabbed a Yoruba man on the face. In the circumstances, therefore, having watched the demeanour of 1st and 2nd P.Ws. I accept their evidence as being true. I believe them. It was after the incident the deceased when he met the 1st accused with two others that he Invited them to come. The deceased, according to the 5th P.W., was also approaching and as he was about to seize the weapons the Hausa men were holding, the 1st accused launched an attack Inflicting several matchet cuts on the deceased who died as a result. The only irresistible inference one can draw and which I draw from the facts is that the three Hausa men, the 1st accused inclusive, mindful of their previous assault on the 1 at P.W. earlier on that day, thought they were being arrested for their action. They there-fore launched an attack on the deceased. The 1st accused dealt matchet cuts on the deceased who died. The 5th P.W. was rigorously cross- examined by counsel for the two accused but he remained unshaken. He impressed me as a witness of truth……..
I reject the account as given by the 1st accused in his statements Exhibit A and A1, B and 131 and L and L1 on the point of the issue of self defence. ….. I have considered the issue of provocation. In view of the fact that I believe 5th P.W’s account in preference to that of the 1st accused, there is no basis upon which a defence of provocation arises. …
The case against the 2nd accused is also from the oral evidence of the 5th P.W. wherein he said of the 2nd accused thus:
“I rushed forward to hold back 1st accused and the 2nd accused stabbed me on my right hand palm…….
The 2nd accused bent down and shook S. P. Ogundare and when the three of them observed that he, S. P. Ogundare could not move, they left him and went off. …. The 2nd accused escaped with their load Into the bush.”
These findings were not disturbed by the Court of Appeal which rightly dismissed the appeal for lack of merit.
My learned brother, Craig, J.S.C. has dealt with the issues raised in greater de-tail and I need not effect a repetition of them here.
Concurrent findings will not be disturbed by this Court except for good reasons occasioning miscarriage of justice.
I would, for the above reasons and those stated in the judgment of my learned brother, Craig, J:S.C., dismiss the appeal and I hereby dismiss the appeal and affirm the decision of the Court of Appeal.
UWAIS, J.S.C. I have had the advantage of reading in advance the judgment read by my learned brother, Craig, J.S.C. and I entirely agree with the judgment and I adopt it as mine.
Accordingly, the appeal is hereby dismissed and the decision of the Court of Appeal is affirmed.
OPUTA, J.S.C. I have had the privilege of a preview in draft of the lead judgment just delivered by my learned brother, Craig, J.S.C. and I agree that this appeal is completely unmeritorious and should be dismissed. That was one reason why the Court did not even call upon Mr. Okesola, learned Senior State Counsel, Oyo State, who represented the Respondent.
In the trial Court the two Appellants, then accused persons, were charged with and tried for the murder of Superintendent of Police, S. O. Ogundare by Adeniran, J. sitting in the Shaki Judicial Division of the Oyo State High Court. The facts have been clearly and concisely set out in the lead judgment and there is no need to repeat them unnecessarily. It is however relevant to point out that the trial Court heard only one version of those facts -, the prosecution’s version. The two appellants, did not testify on oath in the witness box, nor did they make unsworn statements from the dock. They however made extra judicial statements to the police during the investigation into the case. These statements were tendered during the trial. All the materials before the trial Court were thus:
(1) The evidence of the 7 witnesses called by the prosecution, and (ii) The extra judicial statements of the Appellants.
It was on these two that the learned trial judge had to decide the various issues of the fact namely:
(a) how and from what the deceased died; (b) who killed him;
(c) under what circumstances was the deceased killed;
(d) will those circumstances provide any legal defence (like provocation or self-defence) for those who killed deceased.
It is only when a trial court has two conflicting accounts or versions of the essential facts of a case that the need to choose between those versions will arise. If, as in this case, the Court heard only one version of the story and that version is not obviously and patently improbable then belief becomes automatic and a matter of course.
The 5th P.W. Corporal Rasaki Lalemi gave a detailed eye-witness account of how the deceased was brutally butchered to death by the Appellants. The various matchet cut wounds which as P.W. 5 testified were inflicted on the deceased by the two Appellants and their third companion still at large, were all confirmed by Dr. Michael Akinleye Aboderin (called as P.W.7) who performed the post-mortem examination on the body of the deceased. After a careful review of the evidence, the learned trial judge had this to say at p.113 of the record:
“From the above stated evidence I find as a fact that Supt of Police S. O. Ogun-dare ….. died on the 3rd day of September 1981 along Sepeter/Ogboho Road ….. as a result of matchet cuts and stab wounds Inflicted upon him by the two accused persons.”
The learned trial judge then considered the impact of the extra judicial and un-sworn statements of the two Appellants on the case as a whole. In these statements the impression was created that the deceased fired on the Appellants who then fought back in self-defence.
The account of the Incident as deposed to by P.W.5 was that the deceased asked the Appellants to surrender their weapons: matchets, bows, and arrows – Instead of doing just that the Appellants dealt several matchet blows on the fore-head of the deceased who was then “covered in his own blood”. The P.W.5 then continued:
“S.P. Ogundare staggered back and was trying to take out his pistol from his pocket and the 1st accused continued dealing him several matchet cuts. S. P. Ogundare managed to fire some shots but as blood had covered his face he could not aim at any object but fired to scare away his attackers…. S.P. Ogun-dare fell down and the three Hausa men observing that S. P. Ogundare became helpless started to Inflict him with stab and matchet cuts…..”
The learned trial judge had thus two versions of how the deceased died:
(i) as a result of an unprovoked attack on him by the two Appellants. This was the version of P.W.5 Corporal Rasaki Lalemi, his sworn evidence;
(ii) as a result of an attack on him which he provoked by shooting at the Appellants who then fought back in self-defence. This was the content of the un-sworn statements of the Appellants to the Police.
The learned trial judge believed the account or version of the incident as sworn to by the 5th P.W., preferred it to the statements of the Appellants, and found them guilty of murder and sentenced them to death.
The Appellants’ appeal to the Court of Appeal was dismissed. That Court saw “no merit in all the three grounds of appeal and they fag individually and collectively.”
The Appellants have now appealed to this Court. The 1st issue for Determination is stated as follows:
“whether in the circumstances of this case the learned trial judge and learned Justices of the Court of Appeal were right in relying on the testimony of Rasaki Lalemi, the 5th P.W. in deciding to convict the Appellants of the offence charged without calling other eye-witnesses who were present.”
1 thought we had passed this stage in our criminal jurisprudence. The duty on the prosecution is to prove its case. The testimony of one witness who is credible and who is believed is worth much more than those of a host of witnesses whom the Court cannot believe. Truth is not discovered by the impressive number and preponderance of witnesses who testified, for one side but by the credibility of those witnesses no matter how few. As far back as 1848 in the case of Reg v. Ed-wards Underwood & Edwards (1848) 3 Cox C.C. 82 the law has been that counsel for the prosecution is not bound to call all the witnesses whose names appear at the back of the bill of Indictment.
In 1941 the West African Court of Appeal In R v. George Kuree (1941) 7 W.A.C.A. 175 at p.177 noted that the duty of the prosecution is to place before the Court all available and relevant evidence. Unless and except in cases where corroboration is needed by law or by practice one solitary relevant and credible witness can establish the case for the prosecution on an essential point. The need to call witnesses at all arises from the duty the law imposes on the prosecution to prove the essential ingredients that is in issue in every criminal case. In the case of murder the contentious Issue is not usually that the deceased is dead but who killed him. One witness if believed can establish this issue. When this onus is discharged, and if it is discharged by one witness, then there should be no further obligation to call more witnesses: See Joshua Alonge v. Commissioner of Police (1959) 4 F.S.C. 203. There is no obligation on the prosecution to call all eye-witnesses to an offence. Counsel for the prosecution has an unfettered discretion in these matters. If the evidence of P.W.5 is enough to discharge the onus of proof that the Appellants unlawfully killed the deceased that should be alright. This court would only intervene where an essential witness (be he an eye-witness or not) has not been called and the evidence available was not enough to sustain a conviction – See R v. Essien (1938) 4 W.A.C.A. 112 and C.O.P. v. Addae (1939) 11 W.A.C.A. 42. This Court in Samuel Adaie v. The State (1979) 6-9 S.C. 18 at p.28 and in E. O. Okonofua & Anor v. The State (1981) 6-7 S.C. t at p.17 reiterated and restated the principles governing this part of our law.
In this case, it is not even correct to allege that the evidence of P.W.5 stood all alone uncorroborated and not fortified by the evidence of other witnesses. There was the evidence of P.W.1, P.W.2 and P.W.7. Even the Appellants in their statements to the police admitted killing the deceased. The only issue they raised in those statements was not with regard to the killing but with the surrounding circum-stances which, as they alleged, provided them with a defence.
This leads naturally to the 2nd Issue For Determination as formulated in the Appellant’s Brief namely:
“(2) Whether in view of the fact that the confessional statements of the Appellants were presented in evidence by the prosecution and admitted and considered by the Lower Courts In arriving at their decision to convict the Appellants, it was fatal to the case of the Appellants in the circumstances of this case, that they did not testify in Court but rested their defence on the case of the prosecution.”
It is always a gamble to rest the defence on the case of the prosecution. Where the case is such that even if all the prosecution witnesses are believed yet still the offence charged has not been proved, there is may be permissible to rest on the case of the prosecution. But counsel will be taking a big risk where issues of fact will have to be decided in favour of an accused person before his evidence will succeed. There to rest his case on that of the prosecution will be highly prejudicial. In Nwede v. The State (1985) 3 N.W.L.R. 444 this court considered the risk involved in resting the defence on the prosecution’s case. The Privy Council’s decision in Queen v. Sharmpal Singh (1962) 2 W.L.R. 238 at pp. 243-245 also high-lighted that same risk. If the defence rests and refuses to put an accused person into the witness box to depose to his own version of the events, then the learned trial judge is denied the opportunity of listening to the accused tell his story, of watching his demeanour, of assessing his credibility, and of making the necessary choice between his story and that of the prosecution. In the final result the trial Court will have to decide the case on the evidence before it undeterred by the In-completeness of tale from drawing all the inferences that properly flow from the evidence of the prosecution. The defence has shut itself out and will have itself to blame. The Court will not be expected to speculate on what the accused might have said M he tested. In answer to the question posed by the 2nd Issue For Determination it was certainly fatal to the defence of the Appellants that they did not testify. And what were those defences?
The case of the prosecution was that the deceased was unlawfully hacked to death by the Appellants who dealt several matchet blows on him, blows which produced the lacerations which were confirmed by the Doctor, P.W.7 who performed the post-mortem examination. The Appellants made Statements to the Police admitting killing the deceased but alleging that the deceased first fired at them be-fore they were provoked to matchet him to death probably In self-defence. It was then for the Appellants to give evidence In the witness box and explain the surrounding circumstances from which a fair-minded jury could find materials on which to base the defence of provocation and self-defence. This the Appellants failed to do. The learned trial judge was thus left with two incomparables:
(i) The sworn testimonies of Rasaki Lalemi P.W.5 and Dr. M.A. Aboderin P.W.7; and
(ii) The extra judicial unsworn Statements of the Appellants.
The P.W.5 and P.W.7 were thoroughly cross-examined. No one can cross-examine extra-judicial Statements. The position then was what were before the trial Court were not similar – No. They ran on different planes. On one plane was the evidence of those who saw, swore to what they saw, were cross-examined and ultimately believed by the trial Court. On the other plane were Statements taken extra-judicially not confirmed on oath, the contents of which were not testified by cross-examination. In Subramian v. Public Prosecutor (1956) 1 W.L.R. 965, Lord Hodson held that a statement of an accused person was not hearsay and was admissible merely to establish the fact that it was made but not the truth of ’its con-tents
In our criminal Courts Statements made by the accused to the Police during their investigations are usually tendered by the Police. These Statements may contain admissions and/or denials. Any admission may be regarded as an admission against interest but any denial to be acted upon by a trial Court must form part of the evidence of the defence – sworn evidence that is – and pass the acid test of cross-examination. In his submission, in the trial Court, after resting his case on that of the prosecution, Mr. Gbadegesin urged the leaned trial judge ’to accept the accounts of the 1st accused as contained in his statement as being the true position of things in preference to that of P.W.5″. That was a very daring and consider-able submission to make. I wonder how any judge can compare and/or prefer unsworn extra-judicial statements of an accused person to the sworn testimony of a witness. The learned trial judge rejected this invitation and rightly too. He rather held at p. 120:
“I reject the account as given by the 1st accused in his Statement Exh. A and A1, B and BI and L and W1 on the point of the issue of self-defence….. I have no doubt in my mind in accepting (the account) of the 5th P.W.”.
And at p.121 the learned trial judge continued:
“I have considered the issue of provocation. In view of the fact that I believe 5th P.W’s account in preference to that of the 1st accused there is no basis upon which a defence of provocation arises…..:’
All I can say is that the trial judge was over-generous in even considering the Statements of the Appellants and in comparing them with the evidence of P.W.5. The 3rd and final Issue for Determination was beautifully argued under Ground 3 in learned counsel’s Brief. But two important observations ought to be made here:
In this case the evidence of P.W.5 If believed can certainly ground the conviction of the Appellants. The P.W.5 was believed and that then is the end of the matter.
Where the trial Court believes the incredible, surely, an appellate Court can intervene. I will here refer to the case of Frank Rice (1927) 20 Cr. App. R.21 who was convicted by Branson, J. of having carnal knowledge of a girl of 16 years of age. The only corroboration (the case being a sexual offence needed corroboration to succeed) was the evidence of the girl’s father who admitted his memory was bad and who was proved to be incurably deaf. The father testified that he over-heard from an adjoining room the shouts and the struggling of his daughter. He was believed. On appeal, the Court of Appeal reversed the verdict as the Court below believed an impossible story and held at p.24 that:
“In the opinion of the Court, this verdict was unreasonable having regard to the evidence and there was a miscarriage of justice on the part of the jury in convicting this man upon that evidence of his own answer to it being really left uncontradicted….”
In the case on appeal there was really no answer to the case of the prosecution as the Appellants did not testify. But in spite of that the learned trial judge gratuitously considered the defence they raised in their extra-judicial Statement and rejected them.
There is a very big difference between the submission that could be urged on a trial Court and that that can be rightly urged on an appellate Court. Before a trial Court counsel can point to conflicts in evidence and seeming improbabilities of the case, in order to persuade the judge of facts, the judge deciding on the credibility of witnesses, not to believe them. In an appellate court such submissions are totally misconceived. It is that trial Court that sees, hears and believes not an appellate Court.
In his Brief learned counsel for the Appellant pointed to conflicts in the evidence and to what he referred to as improbabilities. It is still true as Aristotle observed several years ago that “probability has never been detected bearing a false testimony’. In other words probability induces belief while improbability points to an untruth. Here again it is the function of the trial Court if there is any evidence and If there are circumstances to support the trial Court’s belief and findings. The Issue is not what the Appellate Court would have believed or found if it were the trial Court. The Issue is what the trial Court actually believed and found. Once these are not unreasonable then the parties and the appellate Courts are all bound.
For all the reasons given above and for the fuller reasons in the lead judgment of my learned brother, Craig, J.S.C. which I now adopt as mine, I too, will dismiss this appeal. The conviction of the Appellants and the sentence of death passed against them by the trial Court are both upheld. The appeal decision of the Court of Appeal, Ibadan Division is hereby confirmed.
WALI, J.S.C.: I have had the privilege of reading in advance, the judgment just delivered by my learned brother, Craig, J.S.C. I agree with his reasoning and conclusion that the appeal has no merit and must therefore be dismissed. The judgment of the trial court as affirmed by the Court of Appeal is hereby confirmed.