ALEWO ABOGEDE v. THE STATE
(1994)LCN/0200(CA)
In The Court of Appeal of Nigeria
On Monday, the 8th day of August, 1994
CA/E/177/92
RATIO
LAW OF EVIDENCE: WHETHER SWORN OR UNSWORN CONSTITUTE EVIDENCE UPON WHICH THEY CAN ACT
This is the principle laid in The Queen v. Joshua (1964) 1 All NLR 1 at p.3, wherein the Supreme Court, unequivocally accepted the observation of Lord Parker L.C.J. in R v. Gelder (1960) 1 WLR 1169 at 1172. This is how his Lordship lucidly expressed himself: “In the judgment of this court, when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous statements, whether sworn or unsworn, do not constitute evidence upon which they can act.” This clearly provides an answer to the dilemma posed by the conflict in evidence of any witness and his extra-judicial statements. The unreliability of such conflicting evidence was re-emphasised in R v. Ukong (1961) All NLR 25. PER OKAY ACHIKE, J.C.A.
JUSTICES:
OKAY ACHIKE Justice of The Court of Appeal of Nigeria
A.O. EJIWUNMI Justice of The Court of Appeal of Nigeria
NIKI TOBI Justice of The Court of Appeal of Nigeria
Between
ALEWO ABOGEDE Appellant
AND
THE STATE Respondent
OKAY ACHIKE, J.C.A. (Delivering the Leading Judgment): The accused who was initially charged with the offence of manslaughter, was subsequently charged with the offence of murder of one Frances Madu, a police constable. The deceased was alleged to have died from gunshot wound. The deceased was a passenger in a Nissan Minibus and the fatal incident occurred at a check-point near the Nkwo-Agu Market in Udi as a result of the shot from the pistol assigned to the accused, a Police officer of the rank of Assistant Superintendent of Police. PW2, the driver of the Nissan minibus, gave account of the event leading to the death of the deceased. According to PW2, the deceased, wearing police uniform, who was sitting on the front seat of his minibus, challenged the constable in the company of the accused as to the propriety of demanding money from the witness (PW2).
The said constable then requested the deceased to accompany him to his superior officer, i.e. the accused. That he did.
On getting there, the accused shouted abuses on him but the deceased later returned to his seat. Accused followed the deceased back to his seat. Thereupon the accused pulled out his pistol and threatened “to batter the bus and the passengers if I moved an inch from that spot”. The accused then moved to the side where the deceased was seated, opened the door, held the deceased by the collar of his dress and pulled him down from the bus to the ground. The accused then slapped the deceased and unleashed blows on him so also did the constable in the accused’s company. Continuing, the witness said, that at a point, the accused then shot at the deceased and the deceased collapsed on the ground. Thereafter, the accused and the aforesaid constable put the deceased in a vehicle and drove off to unknown destination.
PW5 also gave an eye-witness account of the incident leading to the gunshot which also injured his right-palm.
The witness testified that he tried to intervene but the pressure of the beating of the deceased by the accused and the constable with him aborted his efforts. PW7 gave an account of the circumstances leading to the death of the deceased. Further more, PW8 a policeman who was on traffic duty at the market with the accused narrated how the incident occurred.
At the close of the case for the prosecution which fielded eight (8) witnesses, the learned counsel for the accused made a no-case submission and rested his defence thereon. In a reserved judgment, the learned trial judge found the accused guilty of murder as charged and sentenced him to death. It is against his conviction and sentence that the accused, herein appellant, has filed this appeal.
On appellant’s behalf; his learned counsel identified the following three issues for determination, namely,
“(1) Did the prosecution make out a prima facie case for the accused to answer in the first instance?
(2) Was the trial court right in proffering superior order as an explanation for the contradictions in the evidence of P.W.8 before accepting one of the conflicting versions when he was not treated as a hostile witness and P.W.8 did not plead superior order as his explanation?
(3) On the totality of the evidence led by the prosecution was there proof beyond reasonable doubt that the accused with the necessary intent pulled the trigger of the Beretta pistol which released the fatal bullet which hit the deceased?”
For the respondent, four issues were formulated for determination; these are:
“1. Whether there is a prima facie case made out against the accused/appellant.
2. Whether from the facts and circumstances of this case there is sufficient or valid explanation of the inconsistencies in the evidence of P.W.8 entitling the trial court to prefer one version of his evidence.
3. Whether the contradictions and gaps in the case of the prosecution amounted to disparagement of the witnesses making it dangerous to convict on them or likely to result in miscarriage of justice.
4. Whether the case against the accused person was proved beyond reasonable doubt.”
Mr. Anyamene S.A.N., learned appellant’s counsel, argued appellant’s issues No. 1 and 2 in the brief together.
Counsel drew attention to the pieces of conflicting evidence of some of the prosecution witnesses, particularly, the evidence of PW2, PW5, PW7 and PW8. In view of the conflict in their evidence, counsel submits that and on the authorities of R v. Ukpong (1961) All NLR 25, R v. Onubogu (1974) 9 SC 1 at 20 and Mumuni v. The State (1975) 6 SC 79 at 109, to mention a few, the appellant was entitled to be discharged.
On the third issue, it was the submission of the learned Senior Advocate that the learned trial judge failed to evaluate the totality of the evidence of the prosecution witnesses to determine whether prosecution proved the guilt of the appellant beyond reasonable doubt. Learned counsel also cited and relied on several authorities and finally urged us to allow the appeal.
In his reply in the respondent’s brief, Mr. C.C. Eneh, learned Asst. Chief Legal Officer of Enugu State Judiciary, on his issue No.1 and after a review of the relevant pieces of evidence of some prosecution witnesses, submitted that there was an overwhelming and compelling evidence requiring the appellant to answer to the charge and that the learned trial judge was right in holding that a prima facie case had been made out against the appellant. Counsel relies on several authorities, including Uwadiale Arebamen v. State (1972) 4 S.C. 35, Paul Onwe v. The State (1984) 10 SC 81, Ehot v. The State (1993) 5 SCNJ 65 at 93, to mention a few.
On issue No. 2, counsel submits that PW8 has sufficiently explained the inconsistencies in his testimony and the learned trial judge on the face of the inconsistencies was at liberty to prefer one version of evidence to the other version.
On the third issue it is the submission of learned counsel that although there were some contradictions in the prosecution’s case, the contradictions were immaterial as they have not led to any miscarriage of justice.
Finally, on the 4th issue, counsel submits that the case against the appellant was proved beyond reasonable doubt, particularly on the evidence of PW2 who testified that it was the appellant who shot the deceased. Counsel then urged that the appeal be dismissed.
In his oral submission, Mr. Anyamene SAN, on behalf of the appellant, referred to p.106, lines 20 to the end of that page of the record and submits that are many possibilities as to cause of death. Counsel also referred to p.115, line 13 wherein the learned trial judge believed one of the witnesses despite his inconsistent statements and testimony. Counsel finally urged that the appeal be allowed.
Mr. C. C. Eneh, on behalf of the respondent urged us to allow the appeal as the prosecution had proved their case beyond reasonable doubt. While he conceded that there were obvious contradictions between the statements of PW8 to the Police and his testimony in court, nevertheless, he submitted that PW8 proffered an explanation to the inconsistencies.
Counsel referred to the testimony PW2 at p.38 to the end of the page and p.39 lines 12 – 16 and urged us to dismiss the appeal.
Mr. Anyamene SAN submitted that there ought to be a finding of fact as to whether PW2 was at the locus in quo when the gun-shot was fired because it was suggested to him during cross-examination – which he denied – that he (PW2) was not around when the fight started again and also that he did not witness the shooting. Counsel referred to p.42, lines 1-4 to drive home his point that PW2 was not present at locus in quo.
I have carefully perused the record of appeal as well as the briefs of the parties and the oral submissions of their learned counsel. The trump-card of the appellant in this appeal, in my view, is predicated on the strong submission by learned appellant’s counsel that the account of the shooting as rendered by the prosecutions’ star witnesses were woefully in conflict and therefore unrealiable to establish either a prima facie case against the appellant or indeed, establish the guilt of the appellant. The Learned Senior Advocate pointed out and urged us to bear in mind that despite the contradictory evidence of some of the prosecutions witnesses, they were not treated as hostile witnesses.
Perhaps, in my view, the most offending witness in this regard is PW8. His name is Jacob Oguche and is a police corporal in the Nigerian Police Force. On the fateful day, he was on duty at the Nkwo-Agu Market Junction in the company of appellant. On the question of the gun-shot, he gave a vivid testimony of how appellant “pulled his pistol from the ‘pistol-purse’ (sic), cocked it and fired direct to the deceased”. But this account was in conflict with the witness’s earlier extra-judicial statements to the police.
In-fact, his three statements to the police dated 9/1/89, 10/1/89 and the third dated 16/1/89 are in conflict with each other and of course inconsistent with his testimony in court. Now the trial court was therefore confronted with a dilemma of conflicting testimony of PW8 and his extra-judicial statements. That ought not to disturb him nor detain him.
The position of the law in such circumstances is that the trial judge should hold that the testimony on oath should be treated as unreliable, so also the extra-judicial statements. This is the principle laid in The Queen v. Joshua (1964) 1 All NLR 1 at p.3, wherein the Supreme Court, unequivocally accepted the observation of Lord Parker L.C.J. in R v. Gelder (1960) 1 WLR 1169 at 1172. This is how his Lordship lucidly expressed himself:
“In the judgment of this court, when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous statements, whether sworn or unsworn, do not constitute evidence upon which they can act.”
This clearly provides an answer to the dilemma posed by the conflict in evidence of any witness and his extra-judicial statements. The unreliability of such conflicting evidence was re-emphasised in R v. Ukong (1961) All NLR 25. The inevitable conclusion one is obliged to reach is that on the basis of the principle stated above the entire testimony of PW8 is unreliable and should be completely ignored for all intents and purposes. The learned trial judge was therefore palpably in grave error when the trial judge held that
“the evidence adduced by the prosecution, particularly through its eye-witnesses (PW2, PW5 and PW8) which I believed, was UNCONTRADICTED by the accused or by any other person with any credible testimony.”
Surely, in the face of the worthless evidence of P.W.8, as explained above, his evidence was tainted and rendered incapable of belief.
We shall now turn to the evidence of P.W.7. His testimony in court was consistent with his extra-judicial statement to the Police. Both the evidence and his extra-judicial statement were deficient in one point: they failed to identify the actual culprit who released the gunshot that terminated the life of the deceased. To that extent, therefore, his testimony was of low probative value. He was not however a discredited witness.
Like P.W.7, P.W.5 who claimed that he was present at the locus in quo did not state categorically who released the gunshot that killed the deceased. Their testimonies on the beating unleashed on the deceased by the appellant and P.W.8 appeared to have tallied. But a close examination of P.W.7’s extra-judicial statements as they relate to the pistol and the testimony in court shows some inconsistency. Whereas before the gunshot was released, the witness said in his extra-judicial statement, that the appellant dropped his pistol on the ground and the fighting continued, yet in his testimony there is no evidence to the effect that appellant’s gun was thrown on the ground at any point in time before he heard the gunshot. In the instant case, there is no doubt that the gun and the use to which it was put in the dastardly act which caused the death of the deceased are material and most vital pieces of evidence. It is for all this that one is of the view that it is, perhaps, safer to say that to that extent the evidence of this witness, having raised some conflict with regard to the position of the gun before the shot was released, that the testimony of P.W.5 unreliable. To that extent, therefore, on the principle of the authority of R v. Ukpony (supra), P.W.5’s should be treated as unreliable and therefore ignored.
I had early in this judgment recapitulated the testimony of P.W.2, the driver of the Nissan minibus. He was rigorously cross-examined by learned appellant’s counsel, Mr. Anyamene SAN. He stood his grounds under cross-examination. He was believed by the learned trial judge. Contrary to the suggestion made by appellant’s counsel that he was not present when the deceased was attacked, P.W.2 stated firmly:
“It is not true that I fled the scene at the time of the incident: I was there, and saw all that happened.”
Again, to the suggestion made to P.W.7 under cross-examination, this is what the witness said:
“I was about 20 feet away from the bus from which the accused and his companies (sic) dragged the deceased down.
I did not see the driver drive away; but I could not say his whereabouts during the attack on the deceased.”
It is therefore erroneous and intenable for learned appellant’s counsel to submit that because P.W.2’s bus was not used to carry the deceased from the locus in quo it was conclusive that P.W.2 was not there. The appellant not having testified nor did anyone testified on his behalf rebutting P.W.2’s testimony that he was present at all material time at the locus in quo, P.W.2’s evidence in this regard remained unchallenged and therefore uncontradicted. It is however fair to keep the record straight by recalling that P.W.8 testified that P.W.2 ran away when the fight started. That piece of testimony does not take one anywhere. This is a witness, as I had shown earlier, who had no respect for truth or consistency. On the authorities, I had shown that the totality of his evidence was worthless and unreliable; P.W.8 remained unabashedly unmitigated in his relish to make contradictory statements. The submission of learned counsel for the respondent that the conflict or contradiction in relation to P.W.8’s testimony and the extra-judicial statements were properly explained by P.W.8 is not borne out by the record. On the contrary, his testimony and the statements made to the police were diabolically irreconcilables on material issues. To say the least, the performance of P.W.8 in that case, bearing in mind that he is a trained policeman, of the rank of a corporal, left him as a disgrace to the image of Nigeria Police Force.
To have fought another policeman while in uniform reduced him to the level of an “area boy” who does not deserve to be decorated with the uniform of a policeman of this country. People of such character should be flushed out of the Nigeria Police Force if that body is to ever regain its past glory as a disciplined force expressly entrenched in the constitution of the land. In other words, the submission by the respondent’s counsel in this regard is unmeritorious.
On the contrary, I accept the submission of appellant’s counsel that the evidence of P.W.8, because of the glaring inconsistencies and contradictions with his extra-judicial statements, is worthless and lacks probative value and should be ignored.
Mr. Anyamene, SAN had however urged that the learned trial judge should have made a finding of fact as to whether P.W.2 was present at the point in time when the deceased was shot. Again, having discredited the evidence of P.W.8 and there being no other evidence derogating from the evidence of P.W.2 that he was physically present at the locus in quo at all material time, there were no legal duty on the trial judge to make such finding. P.W.2’s evidence being cogent, credible and unchallenged it became compelling for the trial judge to accept it. This the learned trial judge did, having expressly stated that he believed him (PW8). In conclusion, that submission of learned appellant’s counsel is not well founded.
By way of summary, it is pertinent even at the risk of being repetitive to stress that P.W.8’s testimony was sharply contradictory with his extra-judicial statements; to that extent his testimony was unsafe as it was unreliable. Similarly, the testimony of P.W.5, another person who, like P.W.8 who claimed to be an eye-witness, would be rejected as it contradicted his extra-judicial statement.
Again, even if his testimony was without such blemish his evidence would be worthless in relation to the person who unleashed the gunshot. For the same reason, the evidence of P.W.7 was equally conspicuously unhelpful with regard to the person who released the devastating shot. The purported belief of the testimonies of P.W.5, P.W.7 and P.W.8 by the learned trial judge undoubtedly, is misconceived and should be discountenanced, having regard to what I have been saying. The rejection of the evidence of these so-called eye-witnesses would have completely undermined the case for the prosecution but for the evidence of P.W.2 which belonged to a different kettle of fish. His evidence was believed by the trial judge. The totality of P.W.2’s evidence, in my opinion, was sufficient to raise a prima facie case against the appellant. If believed by the trial judge, as was the case here it is the law that the evidence of a witness, particularly the uncontradicted evidence which is not incredible, is a matter about which the trial judge has no option but to accept.
See Bello v. Eweka (1981) 1 SC 101 and Azeez V. The State (1986) 2 NWLR (Pt.23) 54). The appellant not having testified nor any person called upon to testify on his behalf, the testimony of P.W.2 with regard to the demise of the deceased on that ill-fated day in the circumstances narrated by P.W.2, erected a prima facie case against the appellant which remained unrebutted to the end of the trial. Thus I am clearly of opinion that the prosecution made out a prima facie case necessitating the appellant to answer. The evidence of P.W.8 having been shown to be worthless and one that must be ignored in its entirety, the 2nd issue raised by the appellant becomes irrelevant for further consideration.
In sum, the 1st and 2nd issues argued together by the learned appellant’s counsel are respectively resolved against the appellant.
The third issue raised by the appellant which coincides with respondent’s 4th issue will now be examined. The question is, whether on the totality of the evidence led by the prosecution there was proof beyond reasonable doubt that the accused with the necessary intent pulled the trigger of the Beretta pistol which released the fatal bullet that hit the deceased? Contrary to the submission of learned Senior Advocate made on behalf of the appellant, and in view of the earlier analysis, made above in respect of the quality of the evidence of P.W.2 the evidence of P.W.8 and P.W.5 having been challenged or contradicted, I am satisfied that there was ample eye-witness account, as narrated by PW2 relating to the tragic incident leading to the untimely death of the deceased.
We are grateful to the learned appellant’s counsel for reproducing in his brief section 271 of the Criminal Code of Anambra State under which the appellant was charged. From the narration of the circumstances leading to the death of deceased, I have no doubt whatsoever, so also was the trial judge that the unceremonious act of pulling the trigger of the Beretta pistol on that ill-fated date was intended to cause the death of the deceased or intended to do the deceased some grievous harm. Either intention can be subsumed as unlawful killing of the deceased under paragraph (a) or (b) of section 271 of the Criminal Code Anambra State, Cap. 36 of the 1986 ed of the Laws of that State. As I had stated earlier, having for the reasons stated earlier rejected the testimonies of PW5, PW7 and PW8 there does not arise any further contestable issue of material contradiction of prosecution witnesses.
It is equally baseless to treat the testimony of PW2 as hearsay when, as I had earlier observed, that witness stood unshaken as the Rock of Gibralter or Aso Rock in the face of relentless stiff cross-examination unleashed by the defence counsel.
One should also take into consideration the evidence of the Police Medical Practitioner, Dr. Dax Madueke Uzu, who testified as PW6. He performed the autopsy on the deceased.
This witness testified unequivocally that the cause of death, in his opinion, was the wound inflicted on the deceased by the bullet. Exhibit 6 which he recovered from the body of the deceased.
The witness also confirmed that the gun was fired at a close-range but not point-blank. No cross-examination was directed to challenge the testimony of the witness on the cause of death.
With respect, the invocation of the principle of res gestae as it relates to the evidence of PW5 who did not know who fired the devasting gunshot, is untenable. The learned trial judge believing the evidence of PW2 as a witness of truth and having myself scrutinised the unchallenged evidence of PW2, I am satisfied that there was ample evidence before the learned trial judge which he properly evaluated to warrant his conclusion that the prosecution had proved their case or guilt of the appellant beyond reasonable doubt.
Additionally, I have considered other possible defences which could be available to the appellant in the circumstances of this case as ably narrated by PW2 and other credible evidence and I unable to see how any of such defences can be sensible, profitably and legally raised in favour of the appellant.
In the result, I hold that on the totality of the credible and permissible evidence led by the prosecution to which no evidence was tendered by the appellant in rebuttal that the prosecution, proved the guilt of the appellant beyond reasonable doubt. Contrary to the submission of learned appellant’s counsel that there were many possibilities as to the cause of death, I respectfully disagree. On the contrary, if the court had rejected the evidence of witnesses as it was obliged to do, and whose testimonies in court were in conflict with their extra-judicial statements, the result would clearly show the straight forward and unshaken evidence of PW2, an eye-witness to the dastardly incident and PW5, the medical expert whose evidence on the cause of death was unchallenged.
It follows that the 3rd issue is again resolved against the appellant.
Accordingly, I am clearly of opinion that the appeal deserves to fail. The appeal is hereby dismissed. The conviction and sentence imposed by the learned trial judge are hereby affirmed.
It is pertinent to state in passing that the judgment in this appeal could not be delivered on 4/8/94 and the subsequent days thereafter because of unavailability of court workers who, like other civil servants in the country, were engaged in strike action.
AKINTOLA OLUFEMI EJIWUNMI, J.C.A.: I was privileged to have read in advance the judgment just delivered by my learned brother Achike JCA. In that judgment, the facts and the issues raised thereon have been carefully examined by my learned brother, and I agree for the reasons given that this appeal has no merit. However, I need to add a few words of my own.
The facts in this case show that the appellant as at the date of the incident was an Assistant Superintendent of Police, who with other junior officers, were at a check point near the Nkwo-Agu Market in Udi. The allegation against the appellant being that he shot fatally, with the pistol assigned to him, the deceased who was also a police constable. But the deceased before he was so fatally injured was a front seat passenger and was dressed in the uniform of a policeman. His wrong doing which led to his death was that he questioned another constable who was one of those who were at the check point for asking for a bribe from the bus driver. Following that remark, the deceased was excorted to the appellant. From then on the appellant apparently forgot that he was a superior officer, and engaged in a squable with this constable which culminated with the killing of the deceased as aforesaid. The lower court duly convicted the appellant upon the evidence led before it. The appellant did not give evidence thereby resting his case on that of the prosecution.
In this court, the following issues were raised for the appellant.
(1) Did the prosecution make out a prima facie case for the accused to answer in the first instance?
(2) Was the trial Court right in proffering superior order as an explanation for the contradictions in the evidence of PW8 before accepting one of the conflicting versions when he was not treated as a hostile witness and PW8 did not plead superior order as his explanation?
(3) On the totality of the evidence led by the prosecution was there proof beyond reasonable doubt that the accused with the necessary intent pulled the trigger of the Beratta pistol which released the fatal bullet which hit the deceased.
The general principle in our criminal law is that the prosecution has the duty of proving beyond reasonable doubt the guilt of an accused person. Proof beyond reasonable doubt has been the subject of various judicial dicta. See Alonge v. Police (1959) 4 FSC 203.
It is also settled law that where in criminal cases there is any doubt as to the guilt of the accused, arising from the contradictions in the prosecution’s evidence on vital issues, that doubt must be resolved in favour of the accused.
See Queen v. Obiasa (1962) 1 All NLR 651;
Awkwa v. State (1960) 1 All NLR 133.
It is upon this premise that learned senior counsel for the appellant has argued in the appellant’s brief and in his oral argument before us that the appellant ought to be discharged and acquitted. It, being his contention that in view of the contradictions in the evidence of the prosecution witnesses, particularly that of P.W. 5, P.W.7 & P.W.8, the trial court should not have convicted the appellant. There can be no doubt from the evidence of P.W.8 and P.W.7 that no reliance should have been placed on his testimony.
This is because he gave evidence on oath contrary to what he had said earlier in his extra judicial statement. See Queen v. Joshua (1964) 1 All 1 at p.3; R v. Golder (1960) 1 NLR 1169 at 1172; R. v. Ukong (1961) 1 All NLR 25, Jizurumba v. The State (1974) 3 S.C. 89; Williams v. The State (1975) 9-11 SC 139; Stephen v. The State (1986) 5 NWLR (Pt.46) 978 at 1000.
However the evidence of the 2nd PW stood alone. This witness gave a credible account of what the appellant did that led to the death of the deceased. His evidence was not shaken in spite of rigorous cross-examination by the learned counsel for the appellant. The learned trial judge, clearly accepted the evidence of this witness along with the other witnesses whose evidence for the reasons given should not have been accepted. The question then is whether the evidence of 2nd PW, is sufficient to sustain the guilt of the appellant.
The general principle, in my view is that it is not the number of witnesses called that establishes the guilt of an accused. What is of the utmost importance is that the guilt of an accused person depends on whether there is credible cogent evidence before the court establishing the charge alleged against the accused person. Where such evidence is given as in this case by one of several witnesses called by the prosecution, then the case revolves upon credibility. And as the appellant did not give evidence at the trial, the issue of credibility must be resolved in favour of the witness who gave evidence and whose evidence was accepted having been found credible by the lower court. It is settled law that an appellate court will be slow to interfere with the findings of fact made by the trial court based on credibility of witnesses. See Motunwase v. Sorungbe (1988) 5 NWLR (pt.92) 90; Adelumola v. State (1988) 1 NWLR (Pt.73) 683; Sugh v. State (1988) 2 NWLR (Pt. 77) 475; Hausa v. State (1994) 6 NWLR 281 at 303-304.And as I have carefully examined and considered the arguments of learned senior counsel for the appellant proferred in the appellant’s brief, and the oral submissions before us, I find nothing in these arguments to detract from the evidence of the 2nd PW at the trial.
For this and all the other reasons given in the lead judgment of Achike JCA, this appeal is also dismissed by me. I affirm the judgment and orders of the lower court.
NIKI TOBI, J.C.A: The prosecution called eight witnesses. The defence made a no case submission which failed. No evidence was given, and the defence rested its case on that of the prosecution. In law, where an accused person rests his case on that of the prosecution, he is in effect telling the court that even if you believe the totality of the evidence of the prosecution, he cannot be convicted, as there is no convictable evidence. In such a situation, the accused relies heavily on the principle of law that he is presumed innocent and the prosecution must prove his guilt beyond reasonable doubt. To him, the evidence before the court is not such proof.
Resting a case in the way the appellant did could be fairly dangerous to an accused person. He seems, by that singular act, to have put all his eggs in one basket. This means that if the basket falls, all the eggs are broken. Putting it in the relevant and practical language, if a trial Judge comes to the conclusion that there is some evidence, however thin which establishes the guilt of the accused, he has no alternative than to convict him since there is no evidence in rebuttal.
In the instant case, my learned brother Achike, J.C.A. has taken pains to examine the evidence of the prosecution witnesses. I entirely agree with him that while there are contradictions in the evidence of most of the witnesses, the evidence of PW2 comes out clearly against the appellant. PW2 was an eye witness. He saw it all and he gave evidence of what he saw.
In a murder case, evidence of one eye witness which is credible can form legal basis for conviction. Murder is not one of the few offences where corroboration is required for purposes of conviction. I therefore agree with the judgment of my learned brother that the appellant could be convicted on the evidence of PW2.
This is a gruesome murder of a defenceless police constable, Francis Madu, by the appellant who is a superior police officer.
He is an Assistant superintendent of police. He had all the official world at his feet to either recommend disciplinary measures or discipline the deceased if he found his conduct unprofessional. But he decided to open fire at him which resulted in death. So much will be wrong with force discipline if the only procedure for a superior office to discipline his subordinate is to kill him in the way the appellant did. As a superior police officer, I expected the appellant to know, better, but he did not. He was blood thirsty and he should go in for it.
The appeal is accordingly dismissed.
Appearances
Mr. A.N. Anyamene SAN, with him Mrs. F.T.U. Mbah For Appellant
AND
C.C. Eneh, Asst. Chief Legal Officer, Enugu State For Respondent
