ABDU MOHAMMED VS THE STATE
(1991) LCN/2461(SC)
In the Supreme Court of Nigeria
Thursday, July 11, 1991
Case Number: SC. 219/1990
WHEN CONVICTION IS MADE ON EVIDENCE OF ONE WITNESS
“There is no rule or law of practice which should make a court hesitate in convicting upon the evidence of one witness, in a case where there is no suggestion that the witness is an accomplice, if the court is satisfied with the evidence given” PER Uche OMO, JSC)
JUSTICES:
KARIBI WHYTE
SAIDU KAWU
BELGORE
OLATAWURA
OMO U.
BETWEEN
APPELLANTS
ABDU MOHAMMED
AND
RESPONDENTS
THE STATE
U. OMO, JSC. (Delivering the Leading Judgment) On the 23rd of May, 1991, this appeal was heard and dismissed by this court. It was then adjourned to a future date when the reasons for that decision will be given. I now proceed to give my reasons for dismissing this appeal. The appellant was charged before the Kano High Court with culpable homicide punishable by death under Section 221 (b) of the Penal Code. After a trial which spanned two years and four months, he was convicted of the offence as charged and sentenced to death. On appeal to the Court of Appeal his conviction and sentence were affirmed five years after his conviction in the High Court. It is from the decision of the Court of Appeal that he has appealed to this court. The only eye-witness of the assault that led to the death of the deceased, one Muktar Usman testified as PW1. He saw the appellant chasing an old man at night with a stick in his hand with which he hit him very hard twice on the head and once near the ear. The old man (the deceased) then fell down and died on the spot. Leaving the appellant in the custody of persons who ran to the scene, he reported the incident to a nearby police station from where a policeman came and arrested him. The medical evidence showed externally that the deceased had wound on the head and the cheek. Internally, there were bruises and fracture of the skull and haemorrhage. These injuries might have been caused by use of a hard blunt object which is edged and which could have some small projectiles, and could not have been self- inflicted. The appellant later made a statement to the police. In his defence the appellant denied any knowledge of the incident testified to by PW.1 and the police investigator PW.3, and said he had not seen them until the day he testified in court. He however admitted being a night guard at Kafar Kudu quarters, in Kano City. In his judgment, the learned trial Judge believed the evidence of PW.1 and dismissed the contradiction in the evidence which defence counsel highlighted as immaterial. After considering the defence of provocation and defence of property and rejecting them, he held that the prosecution had proved its case beyond reasonable doubt and convicted the appellant On appeal to the Court of Appeal, further issues relating to the need for corroboration and whether the treatment of the appellant’s statement to the police was correct were raised.
The Court of Appeal, after a careful consideration on the evidence led and the submissions of counsel dismissed the appeal, holding, inter alia, that(a) corroboration of the evidence of RW.1 is not required to convict the appellant(b)the alleged statements of the appellant to the police (Exhibits 2 and 2A) should have been rejected by the learned trial judge not only becausethey are suspect but also because they are inconsistent with the testimony of the appellant in court vide R v. Ukpong (1961), 1 ANLR. 25; Oladejo v. The State (1987) 7 SCNJ. 218; R. v Golden (1960) 1 WLR. 1169 (1172)(c) the probative value of the evidence led has not been disturbed by discrepancies adverted to by counsel In his brief of argument in this court, the appellant, represented by the same counsel as in the court below, set out the following five issues for determination- “1.Whether the Court of Appeal was correct in holding that corroboration was not required either by statute or by a rule of practice before convicting the appellant for an offence of Culpable Homicide punishable with death under Section 221(b) of the Penal Code? 2.Whether corroboration of the evidence of PW.1 was necessary before the appellant could be convicted on the facts and circumstances of this case? 3.Whether it was safe to affirm the conviction of the appellant on the unreliable evidence of PW.1 Muktari Usman inspite of the complaints that the contradictions, omissions and irreconciliables replete in his evidence rendered it doubtful? 4.Was the Court of Appeal right in its treatment of the complaint relating to the improper reception and suppression of appellant’s statement to the Police and whether the Court of Appeal could have discharged the appellant on that ground? 5.Whether the facts of the case hinged on circumstantial evidence and if so, is the circumstantial evidence so cogent, compelling and so direct as to suggest that the appellant’s act was probable enough to cause death?” Issues 1 and 2 were considered together in the appellant’s brief and also in oral submissions before this court by his counsel. The main submission here is that the conviction of the appellant was manifestly unsafe in as much as it was based on the uncorroborated evidence of PW.1, Muktari Usman, the eye-witness”. This submission was made in the Court of Appeal, and decided upon by Achike, JCA., thus- “Now to the first arm of complaint. The question is, is there a legal requirement which enjoins the court not to convict on a charge under Section 221(b) upon the evidence of one witness? In other words, is corroborative evidence a prerequisite to conviction under Section 221(b) of the Penal Code? I don’t think that the Evidence Act, nor any other Law- Statutory or otherwise – or a rule of practise stipulates that there cannot be a conviction for murder upon the evidence of a single witness whose evidence has not been corroborated. On the contrary, it is firmly established that a conviction under such circumstances cannot be questioned where the trial court was satisfied with the evidence given, that is to say, that the evidence relied upon by the trial court was of good probative value, there being no suggestion that the witness was an accomplice to the offence preferred against the appellant” Police v Kwashie 14 WACA. 319 and Oteki v A.G. of Bendel State (1986) 2 NW LR. (Pt. 24) 652.” It is the specific complaint of the appellant’s counsel that this consideration/decision of the learned Justice of the Court of Appeal is wrong in law. He arrived at this erroneous conclusion because, it is argued, he has not taken into consideration the nature of and evidential requirements necessary to sustain a charge under Section 221 (b) of the Penal Code. Section 221 states as follows:-
“Except in the circumstances mentioned in Section 222 culpable homicide shall be punished with death- (a)If the act by which the death is caused is done with the intention of causing death; or (b)If the doer of the act knew or had reasons to know that death will be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause” After identifying the mens rea of the two sub-sections (a) and (b) of Section 221 to be intention and knowledge respectively, counsel made the startling submission that where intention is the mens rea, conviction can be based on the corroborated evidence of a single witness where the evidence is of sound probative value; but that where the mens rea required is knowledge, corroboration of the evidence of a single witness is essential. Learned counsel did not cite any legal authority for this submission. There is no doubt that the evidence/ mens rea required to ground a conviction on either sub-section is different; the requirement of subsection (a) being higher than that of sub-section (b). But what is necessary to secure a conviction under both sub-section is not corroboration but evidence of the right probative value. Whilst learned counsel has not produced any authority for his submission, this particular point was decided in Commissioner of Police v Kwashie 14 WACA. 319. In that case, the trial Magistrate convicted the accused of the offence charged relying on the evidence of a single witness. On appeal to the High Court, the appellate Judge stated that though corroboration was not necessary as a matter law, a court was generally reluctant to convict on the evidence of a single witness and proceed to allow the appeal. On further appeal to the West African Court of Appeal that decision was set aside, the court holding that there was evidence before the Magistrate on which he could properly convict. Since he believed the single witness and there was no suggestion that the witness was an accomplice, it was a mistake to reverse the Magistrate’s decision to convict; which decision was restored. Similarly in Igbo v. The State (1975) 9-11 SC.this court stated that – “.. there is no rule or law of practice which should make a court hesitate in convicting upon the evidence of one witness, in a case where there is no suggestion that the witness is an accomplice, if the court is satisfied with the evidence given” See also Oteki v. Attorney-General of Bendel State (1986) 2 NWLR. (Pt. 24) 648. There are also various offences under the Criminal Code in respect of which the Evidence Act provides that corroboration is required to sustain a conviction or prove an action vide Sections 178 and 182 of the Evidence Act the offences of treason, and the unsworn evidence of a child. Also, sections 177 and 178 which deal with the evidence of accomplices and proof of sexual offences. Also, see Sections 51 and 52 of the Criminal Code on sedition. The present case on appeal does not come under this umbrella. There is therefore no merit in the submission of counsel which he laboured to put across. The answers to issues 1 and 2 must therefore be YES and NO. The third issue complains of conviction on the basis of the evidence of PW.1, which is said to be unreliable because of its many “contradictions, omissions and irreconciliables”. The first such contradiction referred to in the evidence of PW.1 and PW.3 as to where the stick alleged used by the appellant was found and recovered by PW.3, (the police constable), when he came to the scene at the invitation of PW.1 ,(the eye-witness). Whilst PW.1,said the stick was found in the hand of the appellant, PW.3 said it was lying on the ground. Appellant’s counsel developed this difference in evidence to mean that there must have been two different sticks. There is no basis for any such deduction. In both versions the stick was close by the appellant and was immediately recovered from the scene by PW.3 and taken into police custody. It would be quite a different thing if in the evidence of PW.1 and PW3 the stick was said to have been recovered from 2 places distant from one another. The important question however is whether or not this is a material contradiction. The answer must be firmly in the negative because whether the stick was taken from the appellant’s hand or on the ground near him, what is material is whether it was the stick used by the appellant on the deceased. The eye-witness, PW.1, identified it as such and the learned trial Judge believed him. That disposes of this “contradiction” which is nothing more than an immaterial differences or discrepancies in the evidence of the two witnesses. Appellant’s counsel has cited and relied on the cases of Onubogu v The State (1974)9 SC.1(Reprint)1(1974)4 UILR Part IV page 538; (1974) 9 SC. 1 (20); Aruna v. The State (1990) 6 NWLR. (Pt. 155)130. In Onubogu’s case (supra) the Supreme Court ,(per Fatayi- Williams, JSC., (as he then was), stated on the contradiction of the evidence of witnesses for the prosecution thus:- “We are also of the view that where one witness called by the prosecution in a criminal case contradicts another prosecution witness on a material point, the prosecution ought to lay some foundation, such as showing that the witness is hostile, before they can ask the court to reject the testimony of one witness and accept that of another witness in preference for the evidence of the discredited witness. It is not competent for the prosecution which called them to pick and choose between them. They cannot, without showing clearly that one is a hostile witness, discredit one and accredit the other. (See Summer and Leivesley v. Grown & Co.(1909) 25 TL.R. 745)” (italics mine). In the instant case, unlike that of Onubogu’s, the court was not placed in a position where it had to choose between the evidence of either PW.1 or PW.3 on the question where the stick was found. This is because it held, and rightly so, that the difference in the evidence was immaterial to the real issue for decision. Furthermore whilst it is true that in both cases the “contradiction” in evidence relates to the weapon of offence, the differences in the testimonies in Onubogu’s case were very substantial and created serious doubt as to whether the weapon produced was in fact the weapon which produced the injuries on the complainant and/or that it was used by the appellant. In that case, cross-examination would appear to have helped produce that effect. As observed by the Court of Appeal in this case ,there was practically none in the present case. There was therefore ample justification for the observation of the Supreme Court in Onubogu’s case that: “In the present case, there is no doubt that the spear (Exhibit D) -the weapon alleged to have been used both in the assault of PW.4 and in causing the damage to the car – is a most vital piece of evidence. The evidence as to (a) where the spear was procured from (b) whether the injury inflicted on the head of PW.4 was caused by it, and, (c) whether it was the weapon used to damage the tyres and windscreen of the car, or as to how it eventually reached the Ogidi Police Station are very crucial to the case put forward by the prosecution.” No such doubt on the material points are raised in the present case. In Aruna v. The State (supra), on a charge of armed robbery, this court per Nnaemeka-Agu, JSC, found the material conflict as follows- “My first observation from the state of the case for the prosecution as testified to by PW.1 and PW.2 is that their testimonies clearly conflict. Whereas the PW.1, the complainant ,gave the impression of a clear-cut case of armed robbery,PW.2 gave the impression of a struggle over a booty by old business associates. In that case of the facts, it was not open to the prosecution to pick and choose between the testimonies of the two witnesses. Neither was it open to the courts below to credit one and discredit the other when no foundation was laid for such a course. See on this Onubogu v. The State (1974) 9 SC. 1.” (italics mine). Similarly in Ikem v. The State (1985) 1 NWLR. (Pt. 2) 378, this court found much justification in the complaint of the appellant when it found that- “It is obvious on the evidence of PW.1 and PW.2 before the learned Judge, that the accounts of the incident of the robbery are not identical and clearly not reconcilable. Whereas PW.1 spoke of the appellant holding a dagger in his hand, PW.2 spoke of both robbers having guns. Besides, whereas PW.1 testified that PW.2 jumped out of the car and ran away and returned after the robbers had left, and this account was accepted by the learned Judge, PW.2 testified on oath that he was present throughout the robbery incident, he was searched and nothing was found on him and he was slapped by the robber, now at large. It is not difficult to see how clearly contradictory and conflicting the two accounts of the same incident is. These facts relate to the robbery incident, the fact that appellant was one of the robbers and that he was carrying an offensive weapon, namely a gun or a dagger These are undoubtedly the material facts relating to the offence for which appellant was being tried. It is well settled that where prosecution witnesses have given conflicting versions of material facts in issues, the trial Judge before whom such evidence was led must make specific findings on the point and in doing so must give reasons for rejecting one version and accepting the other. Onubogu & Anor v. The State (1974) 9 SC.(Reprint) 1;(1974)9 SC.1 at p.20” ( Italics mine) and proceeded to set aside the conviction of the appellant as unsafe.
There is no substance whatsoever in the alleged omissions in the evidence complained of as set out in appellant’s brief. They are not pieces of evidence which are necessary in proof of the offence charged. They are matters which, as Achike, JCA., observed in his judgment, should have formed the basis of some useful cross-examination, which was unfortunately not undertaken. It is therefore perfectly safe to convict on the evidence of PW.1 which has not been successfully impugned. There is no substance in Issue 4. Whatever incompetence may be laid at the door of the prosecution in the evidence it produced or failed to produce, in respect of the statement of the appellant – Exhibits 2 and 2A (and any other), it is difficult for me to comprehend how the learned appellate Justice came to the conclusion that the evidence of PW.3,PW.5and PW.6, “clearly shows that there was room to assume that there was either a suppression of another version of the above exhibits or it was considered an oversight or unnecessary by the prosecution to tender them.” This is however largely academic because he proceeded to hold both the statements Exhibits 2 and 2 A and the evidence of the appellant in court inconsistent and rejected both of them. Issue 5 as framed and argued is really misconceived. The evidence on which the appellant was convicted, as observed by the appellate court below was direct and not circumstantial. To summarise, this appeal was summarily dismissed because all the issues for determination have been found against the appellant.
A.G.KARIBI-WHYTE, JSC. The appeal of the appellant to this court, against the judgment of the Court of Appeal affirming his conviction for culpable homicide punishable on conviction by death in accordance with Section 221 (b) of the Penal Code, was summarily dismissed by me on the 23rd May, 1991. I indicated on that date that I will give the reasons for my judgment today. In further amplification of my opinion that the appeal of the appellant lacked merit, I am content to say herein that I have read the judgment of my learned brother, Uche Omo, JSC., in this appeal; and I consider it unnecessary to add so much of my own which would be identical in all respects to those so ably and lucidly stated in that judgment. I shall, however, refer only to the question of the requirement of corroboration in a prosecution for culpable homicide where the witness is not an accomplice. I cannot but express surprise that it would be argued as was done by Mr. Daudu for the appellant that the evidence of one eye witness, accepted, unshaken under cross-examination and uncontradicted in the aspects material to the case may not be sufficient for a conviction for a charge of culpable homicide punishable with death under Section 221 (b) of the Penal Code. The law seems to me well settled, and the distinction suggested by Mr. Daudu with respect to probability of conduct or “recklessness” and “intention” in Section 221 (b),and “likelyhood”of “conduct”or “negligence”in Section 221(a) though relevant, does not concern the question of the credibility of a witness and evidence of the right probative value. For a conviction, the court is concerned with evidence of the right probative value, and not necessarily corroboration. The requirement of corroboration may be necessary in an appropriate case and by itself aims at securing evidence of the right probative value. The West African Court of Appeal has in C.O.P v. Kwashie 14 WACA. 319, held that evidence of a single witness of the right probative value was sufficient for a conviction. More recently in Igbo v The State (1975) 9-11 SC.(Reprint)80;(1975) 9-11 SC.this court endorsed this principle of law. The decided cases however exclude those cases where corroboration is required either by law or as a matter of practice.-See Sections 178 and 182 of the Evidence Act. See also Oteki v Attorney-Gen. of Bendel State (1986) 2 NWLR. (Pt. 24) 652. Thus, unless corroboration is required by law, the evidence of a single witness of the right probative value has always been accepted as sufficient proof for the offence as charged. Evidence of PW.1 as to the death of the deceased arising from the act of the appellant is sufficient for the conviction of the appellant. These, in addition to the fuller reasons in the judgment of Uche Omo, J.SC., are my reasons for dismissing this appeal on the 23rd May, 1991.
S. KAWU, JSC. After hearing counsel in this appeal on 23rd May, 1991, and having carefully studied the record of proceedings and counsel’s briefs of argument, I dismissed the appeal summarily and reserved my reasons for doing so to today. I have had the advantage of reading, in draft, the lead Reasons For Judgment just delivered by my learned brother, Uche Omo, JSC. I agree entirely with those reasons and will respectfully adopt them as mine. There was credible and cogent evidence before the trial court which amply justified the appellant’s conviction, and in my view, any other verdict on the evidence adduced would have been perverse. I am satisfied the appellant was properly convicted and the Court of Appeal was right in confirming the conviction and the sentence of death passed on him. It was for these reasons and for the fuller reasons contained in the judgment of my learned brother, Uche Omo, JSC., that I dismissed the appeal on 23rd day of May, 1991.
S. M. A. BELGORE, JSC. The appellant was alleged to have pursued the deceased, whose name remains unknown, on suspicion that he (deceased) was there to steal sheep. He hit the deceased consistently on the head, leading to his falling down and dying on the spot. The medical evidence indicated fracture of the cranial bones, bruises over the skull and intercranial haemorrhage leading to contusion of the brain. All these injuries, according to the medical evidence ,caused the death of the deceased and could be due to the deceased being hit on the head with hard blunt object. What is certain is that the deceased was felled by the appellant, who used a stick in hitting him on the head. He was charged under Section 221 (b) of the Penal Code which reads as follows: “221 Except in the circumstances mentioned in S.222 culpable homicide shall be punished with death:- (a)………………… (b)if the doer of the act knew or had reason to know that death would be the probable and not only the likely consequence of the act or of any bodily injury which the act was intended to cause.” The purport of the subsection can only be explained further by what is contained in S.220 of the Penal Code which says: “220. Whoever causes death (a)by doing an act with the intention of causing death or such bodily injury as likely to cause death; or (b)by doing an act with the knowledge that he is likely by such act to cause death; or (c)by doing a rash or negligent act;commits the offence of culpable homicide.” By hitting a man running away and who had not committed any offence and was defenceless on the head with a stick in a manner that fractured his skull and led to his instantaneous death, the appellant had reason to know that bodily injury would be caused leading to fatal consequence. The issue being raised seriously is that the stick tendered might not be the one used. This was a matter not canvassed at trial nor in the Court of Appeal and it is too late here to raise such a novel issue unless new evidence emerged which was not available at the trial court and no human ingenuity could have foreseen it. The fact that some witness said the stick was found on the ground in a pool of deceased’s blood, or held by the appellant after the assault are trivial matters that do not go into substance of the case. The plain and undisputed evidence is that the appellant hit the deceased consistently on the head with a stick, whereupon he fell and died on the spot, and that the stick, now an exhibit was the very one used by the appellant in the attack. Even if the stick was not found it would not dent this case for the prosecution in the face of the overwhelming evidence of the fatal and brutal attack. R. v lyanda (1960) 5 FSC. 263. The appellant, who made a voluntary statement, Exhibit 2,(translation Exhibit 2A), where he admitted hitting the deceased, would later on oath at trial deny making any statement;and that he never attacked anybody much less caused the death of any person. To him,there was no incident worthy of any mention on the fateful night. The counsel for the appellant raised in a belated way the issue of corroboration. In all trials, it is to the credit of the counsel to raise clearly the pertinent points of law. Such efforts by counsel no doubt help the court greatly in doing what the justice of a case demands according to the law. But law, in the process of all trials, never stands in isolation; it must be related to some evidence before the court for it to be applied. The evidence before the court and the offence the evidence related to is that of culpable homicide. None of the evidence in law requires corroboration. The Evidence Act in Sections 177 to 179 has enumerated where corroboration is required as a matter of law, and where it is unsafe to convict on uncorroborated evidence e.g. proviso to Section 178(1) as to evidence of an accomplice. PAGE| 9 In the instant appeal, the appellant was found by the trial court on the clear evidence before it to have attacked the deceased with a stick big enough to inflict upon him bodily injury likely to cause death. The act envisaged by Section 220(a) Penal Code is that of a reasonable man which class the appellant no doubt belongs, and such act could cause bodily injury that could cause death, which in this case it did. For the above reasons and fuller reasons in reasons for judgment of Omo, J.SC., which I adopt as my own, I dismissed the appeal on 23rd of May, 1991. I upheld the decision of the Court of Appeal which dismissed appellant’s appeal against the decision of Kano High Court.
O. OLATAWURA, JSC. On 23rd May, 1991 after listening to the submissions made by Counsel for the appellant and the respondent, I dismissed this appeal and indicated I would give my reasons today. I now give my reasons. I had a preview of the reasons given by my learned brother, Uche Omo, JSC., I adopt them as mine and will only amplify some of them where necessary. The facts leading to the conviction of the appellant raised in this appeal have been succinctly stated by Uche Omo, JSC., that I need not go over them again. Before referring to specific issues I will for ease of reference set hereunder Section 221 of the Penal Code. I appreciate that the appellant was charged, tried and convicted under Section 221 (b) of the Penal Code. Section 221 of the Penal Code reads: Except in the circumstances mentioned in Section 222,culpable homicide shall be punished with death- (a)if the act by which death is caused is done with the intention of causing death;or (b)if the doer of the act knew or had reason to know that death would by the probable and NOT ONLY A LIKELY CONSEQUENCE of the act of any bodily injury which the act was intended to cause” (italics and capitals supplied for emphasis). It is the contention of Mr. Daudu, the learned counsel for the appellant in his oral submission that mens rea is required under Section 221 (b) of the Penal Code. In his brief, learned Counsel has submitted in respect of questions 1 and 2 that the conviction was manifestly unsafe “in as much as it was based on the uncorroborated evidence of PW.1, Muktari Usman, the eye witness”. In other words, that before the conviction under Section 221 (b) of the Penal Code can be sustained or upheld there must be corroboration. After quoting in extenso the observation of Achike JCA., on this issue, the learned counsel then, with regard to Section 221(b), submitted that a person is usually presumed to know that “a dangerous instrument or a blow to a frail part of the human anatomy can kill and a manifestation of this knowledge is sufficient to justify a conviction.” Learned counsel rightly submitted that whether death was a probable and not merely a likely consequence of the act is a question of fact rather than a question of law. In his interpretation, the knowledge required under Section 221 (b) of the Penal Code, is “mens rea”. I do not think knowledge is synonymous with mens rea. Mens rea simply means a guilty mind. Knowledge is simply a known fact or a belief. The knowledge within the contemplation of Section 221 (b) of the Penal Code is a result of the act that must follow what the accused did, whereas the intention within Section 221 (a) is the act contemplated by the accused to bring out a desired result. It is for this reason that a man is presumed to intend the natural consequences of his act. A man who inflicted matchet cuts on another cannot be heard to say he had no intention to kill or at least cause bodily harm. The knowledge that death will result when a man decapitated another person cannot be described as improbable. As clearly pointed out by Uche Omo, JSC., there is no requirement under our law that corroboration is required before a man charged with culpable homicide under Section 221 (b) of the Penal Code can be convicted of the offence charged. It is difficult for me to read into this simple and unambiguous Section of this Code that corroboration is required before an accused can be found guilty under that section. One may ask: Why should the evidence of PW.1 be corroborated? Was he an accomplice? There is nothing on record to suggest that. In a charge of culpable homicide, the evidence of one witness, if believed by the trial Judge, is sufficient to convict an accused. Throughout the time PW.1 was in the witness box, it was never suggested to him that the accused did not hit the deceased, notwithstanding the damaging evidence of PW1 that:
“When the accused person hit the old man with a stick on the head, the old man fell down on the spot and died. When the accused was pursuing the old man there was no other person pursuing the deceased person except the accused” And under cross-examination, PW.1 again said: “After the accused killed the man, many people came out.” In his finding the learned trial Judge said: “I believe the evidence of the PW.1 that the deceased was hit hard on the head twice with a stick by the accused and the deceased fell down and died on the spot.” The finding has not been attacked. This is a decision based on the credibility of PW.1. I have no cause to interfere with that finding: Asanya v. The State (1991) 3 NWLR. (Pt. 180), 422/471, 475. In his assessment of Exhibit 1, the learned trial Judge observed: “Anybody who used the type of stick as Exhibit 1 on the head of a human being should know that the use of such an object is probable to cause death.” We have pointed out several times in this court that appeals to this court are decided on issues raised. I need not cite any authority in support again. This brief complicates matter in the sense that on page 5 of the Appellant’s brief, the appellant clearly stated “the main issues that will be raised in this appeal” to be four, numbered (i), (ii), (iii) and (iv). Then below these issues again, the learned counsel posed 5 questions for determination. These have already been set out in the reasons given by Uche Omo, JSC. While it is true that Order 6 rule 2(1)(e) of the Supreme Court Rules, 1985, provides for “a statement of the questions which the applicant would like the court to consider….”, it is an unnecessary duplication to devote a separate paragraph to issues raised in the appeal, more so when they are differently couched. This,in my view, is a wrong approach. It is either the issues raised or questions for determination. It cannot be both. If there is any need for repetition, notwithstanding our earlier decisions, these issues or question for determination must be based on the grounds of appeal filed because the same Order 6 rule 2(1)(e) provides for “the proposed grounds of appeal from the said judgments.” In other words, Order 6 rule 2(1) (e) must be based on Order 6 rule 2(1)(d) of the Supreme Court Rules.Onifade v Olayiwola (1990) 7 NWLR. (Pt. 161) 130; Egbe v. Alhaji (1990) 1 NWLR. (Pt. 128) 546;Ogbuanyinya v. Okudo (No.2) (1990) 4 NWLR. (Pt. 146) 551. I now come to questions 3 and 4 which read thus: “3.Whether it was safe to affirm the conviction of the appellant on the unreliable evidence of PW.1, Muktari Usman, inspite of the complaints that the contradictions, omissions and irreconciliables replete in his evidence rendered it doubtful? 4.Was the Court of Appeal right in its treatment of the complaint relating to the improper reception and suppression of Appellant’s statements to the Police and whether the Court of Appeal could have discharged the appellant on that ground? With regard to issue 3, it would appear the learned counsel’s attacks on “contradiction, omissions (sic) and irreconciliables” are based on the issue of the stick,i.e.,Exhibit 1, which PW1 said the accused was holding at the time of his arrest as against the evidence of PW.3 who said he took a stick “lying near where the deceased was lying in a pool of blood”. Again it was never suggested to this witness that the stick tendered was not the stick used. The witness was not cross-examined at all. It appears to me a misapprehension of the facts on the part of the learned counsel for the appellant to submit that two sticks were used. As the evidence was that the deceased died on the spot after he had been hit twice with the stick, then the stick found by the side of the corpse was the stick. What PW.1 said about the stick being in the hand of the accused at the time of arrest was not a denial of the fact that it was used to hit the deceased. The event after the collapse of the deceased was as to where the stick was found not that it was not used. It would have been a different thing if the Judge said he did not believe the stick was ever used in beating the deceased. It was the beating that the prosecution said led to the death. The Court of Appeal was right in affirming the conviction and sentence. I am a little bit worried about issue 4 in the sense that the conclusion reached by the lower court is not supported by evidence. The court when dealing with the statement, Exhibit 2 made to the police by the appellant said: “A closer examination of the above excerpts credited to PW.3, PW.5 and PW.6 clearly shows that there was room to assume that there was either a suppression of another version of the above exhibits or it was considered an oversight or unnecessary by the prosecution to tender them.” Assumption is not proof. With respect that was not the issue before the Court of Appeal. The issue raised before the Court of Appeal was: “Was the learned trial judge correct in his treatment of the alleged statement, Exhibit 2 and could the said statement be relied upon having regard to the appellants (sic) evidence in defence?” There was not the slightest inference not to talk of evidence supporting the issue of suppression of evidence. Suppression of evidence in any trial civil or criminal is a violation of the principle of fair hearing entrenched in our Constitution. It is a serious allegation which must not be made lightly. Suppression of evidence is a denial of justice. Once it is established that evidence in a trial has been suppressed, such a trial should be set aside. See the strictures of this court in Odofin Bello v.The State (1966) NSCC 268 where the prosecution refused to disclose evidence favourable to the accused. Ademola ,CJN., on page 274 of the report said: “We cannot do better than remind counsel that it is the duty of the prosecution to put all the facts at its disposal before the court and not to hide anything. Anything short of this is an attempt to conceal from the court any evidence favourable to the accused. We shall be compelled to take serious action against a repetition of such conduct.” It may in fact amount to a professional misconduct on the part of counsel to suppress evidence in any trial. The accusation should not be made lightly. When the accused was confronted with Exhibit 2, i.e., the statement in Hausa language, he said: “I did not make any statement to the police. I did not make Exhibit 2”. He repeated this under cross-examination. Exhibit 2 was tendered by PW.3,Corporal Gabriel Ediche. The relevant part of his evidence reads: “The accused made a statement to me voluntarily. The accused volunteered a statement in Hausa which I read it over to him and the accused thumb-impressed the statement as correct. …………. This is the statement of the accused. Mr. Fagge: I seek to tender the statement in evidence. Mr. Echeozor: No objection Court: The Hausa statement of the accused is admitted in evidence as Exhibit 2.” The proper time to object to the statement, Exhibit 2,was when it was about to be tendered.If it was true that the accused did not make any statement; then there could have been a trial within a trial,i.e., to find out if the thumb-impression on Exhibit 2 was that of the accused or not. That so far was the issue on Exhibit 2. The question of suppression was not an issue canvassed by the parties. The court should not formulate an issue for the parties, but where it is necessary to do so, the court must call on the parties to address on the issue formulated. It is for these reasons and the fuller reasons given by my learned brother, Uche Omo, JSC. that I dismissed the appeal.
COUNSELS
J.B.Daudu,for the Appellant
B.S.Adamu,Solicitor-Grneral,Kano State Ministry of Justice,(with him, M.A.Sambo ), for the Respondent|
