ALLI DOGO v. THE STATE (2011)

ALLI DOGO v. THE STATE

(2011)LCN/5048(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 14th day of June, 2011

CA/I/57/2008

RATIO

PRACTICE AND PROCEDURE: JURISDICTION OF THE COURT

In other words, a rule of court cannot confer jurisdiction, as such a rule regulates the practice of the court in the exercise of a derived power and does not confer power. But it must be obeyed strictly. See ATANDA V. AJANI (1989) 3 NWLR PT. 111 PAGE 511 OJUGBELE V. LAMIDI (1999) 10 NWLR PT. 621 AT 167, AFRIBANK (NIG) PLC V. AKWARA (2006) 5 NWLR PT979 AT 619 and G.M.O.N. & S CO. LTD. V. AKPUTA (2010) 9 NWLR PT. 1200 PG443 AT 473 PARA E-H. PER. MODUPE FASANMI, J.C.A.

STATUTORY DEFINITION OF A CONFESSION

Section 27 subsection 1 of the Evidence, Act defines it thus: “A confession is/an admission made at anytime by a person charged with a crime stating or suggesting the inference that he committed that crime.” PER. MODUPE FASANMI, J.C.A.

CONFESSION IN CRIMINAL PROCEDURE

It is the law that where an accused person confesses to the commission of a crime, in the absence of an eye witness of the killing he can be convicted on his confession alone once the confession is positive, direct and properly proved. See the cases of BATURE VS. THE STATE (1994) 1 N.W.L.R. Part 320 Page 267 and AKPA VS. THE STATE (2007) 2 N.W.L.R. Part 1019 at Page 95 Paras C-D where the learned jurist, Tobi, J.C.C. had this to say:” Confession in criminal procedure like admission in civil procedure is the strongest evidence of guilt on the part of an accused person. It is stronger than the evidence of an eye witness because the evidence borrowing the daily axiom comes out from the mouth of the horse who is the accused person. What better evidence than that? He knows or knew what he did and he says or said it in court. Is there need for any further proof? I think not.” The Learned Trial Judge considered the circumstances under which the admission was given by the Appellant and was satisfied with the truth of such confession before convicting him. See the cases of HASSAN VS. THE STATE (2001) 15 N.W.L.R. part 909 at 184 and NWACHUKWU v. THE STATE (2007) 17 NWLR Pt1062 Pg 31 at 69 Para E. PER. MODUPE FASANMI, J.C.A.

THE TESTS TO BE APPLIED IN ASSESSING THE QUALITY OF A CONFESSIONAL STATEMENT

ON THE MEANING AND IMPORTANCE OF VITAL WITNESS

On the meaning and importance of vital witness, the Supreme Court in the case of THE STATE VS. JOSEPH NNOLIM & ANOR. (1994) 5 N.W.L.R. Part 345 Page 394 at 406 Para D stated as follows:
The question is what is a vital witness? A vital witness is a witness whose evidence may determine a case one way or another. Failure to call a vital witness by the prosecution is fatal to the prosecution’s case. OMOGODO VS. THE STATE (1981) 5 S.C. and ONAH VS. THE STATE (1985) 3 N.W.L.R. Part 12 at 236. See also the case of OPEYEMI Vs. THE STATE (1985) 2 N.W.L.R Part 5 at 101 per Uwais J.S.C as he then was. From the authorities cited above, the burden on the prosecution is to prove its case against the accused person beyond reasonable doubt, the prosecution has discretion to call only those witnesses required to unfold its case. The law does not impose on the prosecution the duty or function of both the prosecution and defence. See NKEBISI v. THE STATE (2010) 5 N.W.L.R Part 1188 at 471. There is no rule of law which imposes an obligation on the prosecution to call a host of witnesses to prove its case. See ADAYE v. THE STATE (1979) 6-9 SC at 18- OKONOFUA v. THE STATE (1981) 6-7 SC page 1 at 18.
In the instant case, the court believed and accepted the evidence of P.W.1 and P.W.2 given all the circumstances of the case. A single credible witness can establish a case beyond reasonable doubt unless where the law requires corroboration. See ONAFOWOKAN VS. THE STATE (1987) 3 N.WL.R Part 61 page 538 at 552 and OGOALA VS. THE STATE 1991) 2 N.W.L.R. PER. MODUPE FASANMI, J.C.A.

SITUATTIONS WHERE A FINDING WILL BE PERVERSE

A finding of fact is perverse where:
(a) It runs counter to the evidence properly adduced;
(b) Where it has shown that the trial court took into account matters which ought not to have been taken into account;
(c) Where the trial court shut its eyes to the obvious;
(d) Where the decision has occasioned a miscarriage of justice. See ATOLAGBE VS SHOUN (1985) 1 N.W.L.R Part 2 at page 260, ADIMORA vs. AJUFO(1988) 3 N.W.L.R Part 80 at page 1, STATE VS. AJIE (2000) 11 N.W.L.R Part 678 at 434 and ULUEBEKA VS. STATE (2011) 4 N.W.L.R Part 1237 page 358 at 381-382 paras F-C. PER. MODUPE FASANMI, J.C.A.

Before Their Lordships

SIDI DAUDA BAGEJustice of The Court of Appeal of Nigeria

MODUPE FASANMIJustice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGHJustice of The Court of Appeal of Nigeria

Between

ALLI DOGOAppellant(s)

AND

THE STATERespondent(s)

MODUPE FASANMI, J.C.A. (Delivered the Leading Judgment): This is an appeal against the judgment of the Oyo State High Court of Justice in suit no.I/47/04 delivered on the 22nd of June, 2006.
Briefly, the facts of the case are that Appellant on the 8th day of May, 2003 while on guard as a night watchman murdered one Engineer Isiak Lawal at Adeojo Estate, Old Ife Road, Ibadan. The case of the Appellant according to him was that at about 9.30p.m-10p.m on the 8th of May 2003, the deceased and four other occupants of a Corolla Car came to the gate of the Adeojo Estate at old Ife Road, Ibadan after the said gate had been locked. Appellant accosted them and enquired from them what they wanted. Instead of responding to the Appellant’s enquiries, they forced themselves into the Estate after damaging the Appellant’s single barrel gun which was issued to him by his employers. Appellant thinking that they were armed robbers ran after them while armed with another gun he took from his co-night or security guard for the second time. Appellant ordered the deceased and his cohorts to stop. Instead of obeying the Appellant’s instruction, they attempted to seize or destroy the only weapon now available to the two night guards to safeguard the said Estate. Appellant struggled the gun with one of them and in the process the gun exploded and killed the deceased. The remaining four persons fled. Appellant and his partner later reported the incident to the Chairman of the Landlord Association and the Secretary who finally reported the matter to the Police. The prosecution called two witnesses while the Appellant testified for himself. The learned trial Judge found the Appellant guilty of murder.
Being dissatisfied with the said judgment, Appellant filed his notice of appeal containing three grounds of appeal. With the leave of this court, Appellant filed amended notice and grounds of appeal pursuant to the Order of this court made on the 22nd of October, 2009.
In compliance with the rules of this court, Appellant’s brief of argument was settled by S. O. Agwinede Esq and filed on the 20th of April, 2010 while Respondent’s brief of argument was settled by Mrs. A. E. Gade Senior Legal Officer in the Ministry of Justice Ibadan, Oyo State. It was filed on 25th October, 2010 but was deemed properly filed and served on 20/1/11.
Respondent filed a preliminary objection on the 28th of September, 2010.
The arguments on the preliminary objection were incorporated into the Respondent’s brief of argument filed. Appellant filed his reply brief on the 20h of January, 2011.
Appellant distilled three issues for determination from the grounds of appeal filed as follows: 2 (1) Whether the learned trial Judge was right in holding that Exhibit “B” was a confessional statement.
(2) Whether the learned trial Judge proceeded upon wrong principles of law in convicting the Appellant on Exhibit “C’.
(3) Whether the evaluation of evidence and findings of facts by the learned trial Judge were proper given the circumstances of this case?
Respondent distilled a sole issue for determination thus:
“Whether on the state of the evidence before the Lower court, the learned trial Judge was justified in convicting the Appellant for the offence of the murder of Engineer Isiaka Abiodun Lawal?
Before considering the merit of the appeal, it is necessary to consider the preliminary objection raised by the Respondent at pages 2-3 in paragraphs 3.00-3.04 of the brief. Learned Counsel for the Respondent submitted that the amended notice of appeal dated the 14th of July, 2009 was signed by the Appellant’s Counsel and not the Appellant himself as required by the Rules of this court, hence the amended notice of appeal is incompetent. This therefore robs this court of jurisdiction to entertain the appeal and same should be struck out. He placed reliance on the case of THE STATE VS. JAMMAL (1996) 9 N.W.L.R Part 473 page 384 at 399 where the learned jurist Ogbuagu J.S.C had this to say: “that a notice of appeal in a criminal appeal filed in the lower or trial court which was signed by a counsel for the Appellant instead of the Appellant himself is defective by virtue of Order 4 Rule 1 of the Court of Appeal Rules 1981”
Learned Counsel for the Respondent submitted that this Honourable Court cannot entertain the appeal because it is incompetent. He urged the court to strike out same.
Learned Counsel for the Appellant in the Appellant’s reply brief in answer to the objection submitted that the objection is grossly misconceived and same was brought under a total misconception of the extant rules of this Honourable Court. He contended that the literal interpretation of Order 16 Rule 4(1) of the Court of Appeal rules above will show that only the initiating process of an appeal like the notice of appeal, application for leave to appeal and notice of application for extension of time within which such notice shall be given shall be signed personally by the Appellant himself. Once, the appeal has been initiated and duly filed as mandatory provided for under Order 16 rule 4(1) of the Court of Appeal Rules 2007, as the Appellant has duly done in the instant appeal, any other notice or subsequent amendment thereto can either be signed by the Appellant himself or his legal representative as provided for under rule 4 (2).
Learned Counsel for the Appellant urged this court to give Order 16 rule 4(1) its ordinary, natural and grammatical construction since the words are clear and unambiguous. Learned Counsel for the Appellant relied on the case of ADISA v. OYINWOLA & ORS (2000) 10 NWLR PT.674 at 116.
Submitted further that assuming but not conceding that the failure of the Appellant to personally sign the amended notice and grounds of appeal amounts to non strict compliance with the provision of rule 4(1) of Order 16, the Appeal can still be saved by the lifeline provided in the proviso to Order 16 rules 4(1) and (2) which states as follows:
“Provided that, notwithstanding that the provisions of Rules 3(1) and (2) and 4(1) of this Order have not been strictly complied with, the court may; in the interest of justice and for good and sufficient cause shown, entertain an appeal if satisfied that the intending Appellant has exhibited a clear intention to appeal to the court against the decision of the lower court.”
He argued that any subsequent irregularity to a valid notice and grounds of appeal can be cured by this proviso. Learned Counsel for the Appellant urged the court to so hold. He argued further that the cases cited by the Respondent’s Counsel in support of the notice of the preliminary objection are totally inapplicable to the facts and law in the instant appeal. Learned Counsel urged the court to dismiss the preliminary objection.
The amended notice and grounds of appeal dated the 14th July, 2009 and filed on the 20th of July, 2009 pursuant to the order of this court granted on the 22nd of October, 2009 is not an originating process of appeal which must be signed personally by the Appellant himself.
Appellant’s Counsel only added two new or additional grounds of appeal to the original grounds of appeal embodied in the notice of appeal filed timeously and regularly by the Appellant.
Order 16 rule 4(1) upon which the Respondent’s Counsel predicated her notice of preliminary objection states as follows:
“Every notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given shall be signed by the Appellant himself, except under the provisions of paragraphs 5 and 6 of this rule.”
Order 16 Rule 4(1) cannot be read in isolation in view of Order 16 rule 4(2) and the proviso to rule 4(1) & (2) Order 16 Rule 4(2) states:
“Any other notice required or authorized to be given shall be in writing and signed by the person giving the same or by his legal representative. All notices required or authorized to be given shall be addressed to the Registrar of the court below to be forwarded by him to the Registrar.”
The words are clear and unambiguous and therefore it must be given its ordinary, natural and grammatical construction. Subsequent amended notice like the amended notice in this appeal comes under any other notice under Rule 4(2) which could either be signed by the Appellant himself or his legal representative. The amended notice and grounds of appeal dated the 14th of July, 2009 and filed on the 20th of July, 2009 is not an originating process of appeal which must be signed personally by the Appellant himself. Appellant’s Counsel only added two new or additional grounds of appeal to the original grounds of appeal embodied in the notice of appeal filed timeously and regularly by the Appellant.
Besides, the proviso to order 16 rules 4(1) & (2) states:
“Provided that, notwithstanding that the provisions of rules 3(1) and (2) and 4(r) of this order have not been strictly complied with the court may in the interest of justice and for good and sufficient cause shown entertain an appeal if satisfied that, the intending Appellant has exhibited a clear intention to appeal to the court against the decision of the lower court.”
There is no greater way to exhibit a clear intention to appeal to this Honourable Court against, the decision of the lower court than the Appellant timeously filing his original notice and grounds of appeal, signing same personally. This is the ordinary and natural meaning. To contemplate another meaning in view of the proviso to Order 16 rule 4(1) will be stretching the interpretation of Order 16 rule 4(1) to the limit of absurdities and putting into the statute what the legislative did not contemplate. See the case of RALPH UWAZURIKE & ORS VS. ATTORNEY-GENERAL OF THE FEDERATION (2007) 8 N.W.L.R Part 1035 page 1 at pages 15-16 paragraphs H-A where the Supreme Court per Ogbuagu J.S.C stated thus:
“It need be stressed at this stage that where the language of a statute is plain, clear and unambiguous, the task of interpretation can hardly arise. It is therefore the duty of the court in such a situation to give the words their ordinary, natural and grammatical construction unless such interpretation would lead to absurdity or some repugnancy or inconsistency with the rest of the legislation.”
For purposes of emphasis, rules of court are rules of procedure. They do not confer jurisdiction. They merely regulate the practice in the courts. Period. In other words, a rule of court cannot confer jurisdiction, as such a rule regulates the practice of the court in the exercise of a derived power and does not confer power. But it must be obeyed strictly. See ATANDA V. AJANI (1989) 3 NWLR PT. 111 PAGE 511 OJUGBELE V. LAMIDI (1999) 10 NWLR PT. 621 AT 167, AFRIBANK (NIG) PLC V. AKWARA (2006) 5 NWLR PT979 AT 619 and G.M.O.N. & S CO. LTD. V. AKPUTA (2010) 9 NWLR PT. 1200 PG443 AT 473 PARA E-H.

The purpose of the rules of court is to ensure that the affairs of court are carried out in an orderly fashion. See the case of F.S.B. INTERNATTONAL BANK LTD. VS. IMANO (NIG.) LTD. & ANOR. (2001) 11 NWLR PT.679 AT 620 AND G.M.O. N& S CO. LTD. VS. AKPUTA Supra Page 474 Para E.
It is therefore my view that any irregularity to a valid notice and grounds of appeal can be cured by the salutary proviso to Order 16 rule 4(1) & (2) of the Court of Appeal Rules 2007 and I so hold. The preliminary objection leans on the side of technicality which the Supreme Court and this Court have always condemned in the strongest terms. For these reasons, I hold that the notice of appeal is competent. The preliminary objection lacks merit and it is accordingly dismissed.
I shall now proceed to consider the merits of the appeal. Having considered the issues formulated by the parties, I intend to be guided by the issues formulated by the Appellant.
Issue One
Whether the learned trial Judge was right in holding that exhibit B was a confessional statement.
Learned Counsel for the Appellant argued that the Appellant did not at anytime both in his extra-judicial statement and his testimony in open court admit the guilt of the crime of murder. Appellant in all his statements to the Police including exhibit B and in his evidence in court maintained the fact that he thought the deceased and his cohorts were armed robbers. The said belief of the Appellant was very reasonable considering the time the deceased and his cohorts invaded the Adeojo Estate between 9.30-10p.m in the night. In exhibit B, the Appellant states as follows:
……… I made a statement at Gbagi Police Station. When I shot him, I thought that he was an armed robber. It was late hour and the Landlord Association at Adeojo warns us that nobody should enter late hour …”
Submitted that the learned trial Judge failed to make the least reference to that portion of the Appellant’s statement in exhibit ‘B’ quoted above. He contended that if the learned trial Judge had averted her mind to the said portion of the statement, she would have found that the defence of life and property enshrined in section 33(2) of the 1999 Constitution of the Federal Republic of Nigeria and the defence of dwelling house under section 282 of the Criminal Code Act were discernible from exhibit B. Under our criminal justice system, a trial Judge is duty bound to consider all and any defence available to the accused person however stupid or unreasonable even when such defence was not even put or given by the accused person as long as it is discernible from the general body of the evidence before the court, it must be considered. Learned Counsel referred to the case of UCHE WILLIAMS VS. THE STATE (1992) 8 N.W.L.R Part 261 page 515 at 522 paragraph B where the Supreme Court per Kutigi J.S.C (as he then was) held as follows:
“It is settled that any defence to which an accused person is on the evidence entitled to should be considered however stupid or unreasonable for what it is worth. ………”
Learned Counsel for the Appellant submitted further that from exhibit B, it can be seen that the Appellant only admitted the fact of killing the deceased. In other words, the Appellant killed the deceased under excusable circumstances. Learned Counsel for the Appellant urged the court to resolve this issue in favour of the Appellant.
Learned Counsel for the Respondent observed that from the Appellant’s brief, Appellant’s Counsel failed to formulate any issue in respect of ground 3 of the amended notice of appeal. The said ground is deemed abandoned. She Wged the court to strike it out. She referred to the case of WAEC v. ADEYANJU (2008) 9 N.W.L.R part 1092 at page 270.
Learned Respondent’s Counsel observation that Appellant’s Counsel did not formulate any issue from ground 3 of the amended notice of appeal is quite apt as no issue was formulated from the ground. Ground 3 is therefore deemed abandoned and it is accordingly struck out. Respondent’s Counsel submitted further that the facts of this case apart from being direct are positive to ground the conviction of the Appellant. She referred to the case of Uwagboe vs. The State (2008) 4 S.C at 67.
In the Appellant’s brief, learned Appellant’s Counsel sought to justify and or excuse the killing of the deceased under section 33(2) (a) of the 1999 Constitution of the Federal Republic of Nigeria. A cursory look at Appellant’s statement in exhibit ‘B’ at page 13 of the record of proceeding makes nonsense bf the so called defence in his favour. The defence of life and property in section 33(2) (a) of the 1999 Constitution of the Federal Republic of Nigeria and the defence of dwelling house in section 282 of the Criminal Code Act is not discernible or does not apply and cannot enure for the benefit of the Appellant. There is no ground at all, let alone reasonable ground on which the Appellant could believe that the deceased was attempting to break and enter the dwelling house with intent to commit a felony or misdemeanor therein. Learned Counsel for the Respondent urged the court to resolve this issue against the Appellant.
Now, what exactly is a confessional statement? Section 27 subsection 1 of the Evidence, Act defines it thus:
“A confession is/an admission made at anytime by a person charged with a crime stating or suggesting the inference that he committed that crime.”
Appellant In his statement exhibit B, and his evidence an oath admitted killing the deceased. For the purpose of clarity, I will reproduce a portion of exhibit B. It goes thus:
“I was at the gate at Adeojo Estate about 9.30p.m- 10p.m when a car corolla came with five men and I move close to them ask them where are you going to, there two of them came down dragging gun with me later they move inside with car and I used my single barrel gun loaded with cartridge and shot him and later died.”
Appellant in his evidence in court also stated as follows:
“he pulled the gun but my hand was on the trigger.
The other four people ran into the bush. The men that dragged the gun with me fell down. ………. I contributed N2,000 for the corpse or the man to Adeoyo Hospotal.”
It is therefore not in doubt from the foregoing that the deceased died and that the act of the Appellant caused the death of the deceased. There is no contention as to the voluntaries of the statement. In my humble opinion, the statement exhibit B fits in squarely as a confession and it is admissible against the Appellant.
The bone of contention is that the Respondent and the trial court relied on the confessional statement of the Appellant in convicting and sentencing him because Appellant stated in a portion of Exhibit B the defence of life and property enshrined in Section 33 (2)(a) of the 1999 Constitution.
Appellant in exhibit B stated thus:
“When I shot him, I thought that he was an armed robber”
Section 33(2)(a) of the 1999 Constitution states:
“33(2)A person shall not be regarded as having been deprived of his life in contravention of this section if he dies as a result of the use, to such extent and in such circumstances as are permitted by law of such force as is reasonably necessary;
(a) for the defence of any person from unlawful violence or for the defence of property”
Again Section 282 of the Criminal Code Act which is in pari material with the Criminal Code Law of Oyo State States:
“It is lawful for any person who is in peaceable possession of a dwelling house and for any person
lawfully assisting him or acting by his authority to use such force as he believes on reasonable grounds to be necessary in order to prevent the forcible breaking and entering of the dwelling house, either by night or day, by any person whom he believes on reasonable grounds to be attempting to break and enter the dwelling house with intent to commit a felony or misdemeanor therein.”
In the instant case, the deceased and his group were not armed; they did not pop threat to the life of the Appellant and the inhabitants of Adeoyo Estate. Assuming without conceding that Appellant thought he shot an armed robber, are armed robbers supposed to be killed like that? I will say emphatically no. I am therefore of the view that the right to defence of property under Section 33(2)(a) of the Constitution is not available to the Appellant. Equally Section 282 of the Criminal Procedure Act does not avail the Appellant. It is therefore my view that Appellant in the circumstances of the evidence took the laws into his hands by killing the deceased. See the case of ANABI VS. THE STATE (2008) 13 N.W.L.R, Part 1103 at 179.
It is the law that where an accused person confesses to the commission of a crime, in the absence of an eye witness of the killing he can be convicted on his confession alone once the confession is positive, direct and properly proved. See the cases of BATURE VS. THE STATE (1994) 1 N.W.L.R. Part 320 Page 267 and AKPA VS. THE STATE (2007) 2 N.W.L.R. Part 1019 at Page 95 Paras C-D where the learned jurist, Tobi, J.C.C. had this to say:
”Confession in criminal procedure like admission in civil procedure is the strongest evidence of guilt on the part of an accused person. It is stronger than the evidence of an eye witness because the evidence borrowing the daily axiom comes out from the mouth of the horse who is the accused person. What better evidence than that? He knows or knew what he did and he says or said it in court. Is there need for any further proof? I think not.”
The Learned Trial Judge considered the circumstances under which the admission was given by the Appellant and was satisfied with the truth of such confession before convicting him. See the cases of HASSAN VS. THE STATE (2001) 15 N.W.L.R. part 909 at 184 and NWACHUKWU v. THE STATE (2007) 17 NWLR Pt1062 Pg 31 at 69 Para E.
Exhibit B is direct, positive and unequivocal as to the commission of the offence of murder.
It is settled law that once a confessional statement is admitted in evidence, it becomes part of the case for the prosecution and as such the Judge is bound to consider its probative value. See OLADEJO
VS. THE STATE (1987) 3 N.W.L.R. at 19 and EGBOGBOME VS, THE STATE (1993) 7 N.W.L.R. at 383.

The tests to be applied in assessing the quality of a confessional statement are:
(a) Whether there is anything outside the confession which shows that it may be true;
(b) Whether it is corroborated in any way;
(c) Whether the relevant statements of facts made in it are most likely true as far as they can be treated;
(d) Whether the accused person had the opportunity of committing the offence;
(e) Whether the confession is possible;
(f) Whether the alleged confession is consistent with other facts that have been ascertained and established.
See the cases of YESUFU VS. THE STATE (1975) 5 S.C. at 160, NTAHA VS. THE STATE (1972) 4 S.C. at Page 1; IKEMSON VS. THE STATE (1989) 3 N.W.L.R. Part 110 at 455 and IGRI V. THE STATE (2010) 7 W.R.N, Page 31 at 56-57.
The learned trial Judge at page 32 of the record took these tests into consideration in her judgment and was satisfied with the truth of that confession. The confessional statement was corroborated by the medical report i.e. exhibit C as to the cause of death of the deceased. I am therefore on one with the learned trial Judge that exhibit B is a confessional statement. Issue one is hereby resolved against the Appellant.
ISSUE TWO
Whether the Learned Trial Judge proceeded upon wrong principles of law in convicting the Appellant on exhibit C.
Learned Counsel for the Appellant contended that exhibit C which is the medical report is inadmissible having been tendered by a witness who is neither the maker nor an expert in pathological medicine. He however conceded that in murder cases, the court can dispense with medical report in determining the cause of death of the deceased in some circumstances but when the manner of death is in dispute as in the instant case the prosecution must call the medical doctor who carried out the post mortem examination of death. He cited the case of LAMBERT v. THE NIGERIAN NAVY & ORS. (2006) 7 N.W.L.R. Part 980 Page 512 at 547.
Exhibit C is nothing but documentary hearsay. He contended that the function of a trial judge is not that of an investigator. He cannot examine documents which were not demonstrated before him in the open court in his chambers. He relied on the case of DURIMIMYA VS. COMMISSIONER OF POLICE (1961) N.R.M.L.R. Page 70 at 73-74.
He submitted that the learned trial Judge made wrong use of exhibit C in establishing the manner of the death of the deceased which manner of death was critically and fundamentally in contention and in dispute in this case, since the Appellant denied vehemently that he shot the deceased from behind as speculated by the trial judge. He relied on the additional authority of OLAYINKA VS. THE STATE (2007) 9 N.W.L.R. part 1040 Page 561 at 578 Paras D-G which is to the effect that a court cannot rely on an exhibit that is not legal evidence in making any finding of fact and in reaching its judgment. Learned Counsel for the Appellant urged the court to resolve this issue in favour of the Appellant.
Learned Counsel for the Respondent submitted that the failure to call the medical doctor is not fatal to the prosecution’s case. Appellant did not object to the tendering of exhibit C through P.W.2. Learned Counsel argued further (hat the Appellant should have availed himself of the opportunity of the proviso to section 42 of the Evidence Act by applying to the court to have the medical doctor summoned for cross-examination.
She relied on the case of OGBERA THE STATE (1985) 3 NWLR Part 11 Page 120 at 121. She contended that medical evidence is not essential where there is abundant evidence of the manner of death. The Respondent proved that the Appellant shot the deceased and he died through the act of shooting. Appellant conceded this much in his statement exhibit B. She referred to the case of ADAMU KUMO v. THE STATE (1968) N.W.L.R. at 227 and TOMARA BAKURI VS. THE STATE (1958) N.W.L.R. at 163. Learned Counsel for the Respondent urged the court to resolve this issue against the Appellant.
By the provision of Section 42(1) of the Evidence Act, it is not mandatory for a medical officer who performed an autopsy on a deceased to be present in court in order to give evidence during the trial. Production by either part of a certificate signed by the medical officer may be taken as sufficient evidence of the facts. See ISIEKWE VS. THE STATE (1999) 6 N.W.L.R. Part 517 at 43 and EDOHO VS. THE STATE (2010) Vol. 40 W.R.N. Page 1 at 21-22 Lines 45-48, By virtue of Section 249(3) of the Criminal Procedure Act a written report by any medical officer or registered medical practitioner may at the discretion of the court be admitted in evidence for the purpose of proving the nature of any injury received by and the physical cause of death of any person who has been examined by him. Medical evidence is even unnecessary in this instance in view of the overwhelming evidence of the manner of death of the deceased. Respondent proved through the witnesses that Appellant shot the deceased and the deceased died through the act of shooting by the Appellant. Appellant’s statement exhibit B and his evidence in court corroborated the assertion. The court has power on the application of a party to the proceeding or on its own motion, direct that any such officer shall be summoned to give evidence before it if the court is of the opinion that either for the purpose of cross-examination or for any other reason, the interest of justice so require. An accused person who has not made an application in that regard cannot complain if the trial judge fails to call the officer who signed the certificate. See SOLOMON EHOT v. THE STATE (1993) 4 N.W.L.R. Page 644. Appellant did not apply to the court for the medical officer who signed the report to be summoned for cross examination during the trial. It is therefore too late in the day for the Appellant to start complaining that the medical officer was not produced for cross-examination. The medical report is admissible in evidence to prove the cause of death of the deceased. It also corroborates the confessional statement of the Appellant i.e. exhibit B. Issue two is also resolved against the Appellant.
ISSUE THREE
Whether the evaluation of evidence and findings of facts by the Learned Trial Judge were proper, given the circumstances of this case.
Learned Counsel for the Appellant contended that the appraisal and summing up of the learned trial Judge failed to established the defence of accidental discharge from the gun of the appellant. According to Learned Counsel for the appellant, this is a serious misdirection which has led to a miscarriage of justice. He referred to the case of TAJUDEEN ALABI VS. THE STATE (1993) 7 N. W. L. R, Page 511 at 531 Paras C-H. He submitted that the quantity and quality of the evidence adduced by the Respondent are not sufficient and are grossly inadequate to secure a verdict of guilt in a murder case. The two witnesses for the Respondent were not eye witnesses to what transpired between the night watchman and the invaders including the deceased.
Submitted that the learned trial Judge relied on the confessional statement of the Appellant exhibit B and the medical report exhibit C in convicting the Appellant of the offence of murder which documents are not admissible respectively. The Respondent failed to call vital witnesses. The failure by the Respondent to call vital witnesses has cast a doubt on the prosecution’s case and the doubt ought
to be resolved in the Appellant’s favour. He relied on the case of ONAH VS. THE STATE (1985) 3 N.W.L.R. Part 12 at Page 236, He urged the court to hold that the guilt of the Appellant was not proved beyond reasonable doubt. Learned Counsel for the Appellant urged the court to resolve the issue in favour of the Appellant, allow the appeal, set aside the judgment of the lower court and enter a verdict of acquittal in favour of the Appellant.
Learned Counsel for the Respondent submitted that the facts of this case apart from being direct are positive to ground the conviction of the Appellant. She referred to the case of UWAGBOE VS. THE STATE (2008) 4 S.C. at 67. She argued that Appellant’s contention in his brief that the Respondent should tender the deceased identification card as an Engineer with Mobil Oil is of no moment because whatever is admitted needs no proof. This is because Appellant said in exhibit B that:
“I got to know at the Police Station that the man shot is an Engineer Isiaka Abiodun Lawal working at Mobil, Port Harcourt”.
She submitted that the case of NWOBE VS. THE STATE (2000) 15 N.W.L.R. Page 133 at 141-111 cited by the Appellant’s Counsel is inapplicable. She went further to state that the allegation of suppression of facts against the Appellant is misconceived. The statement referred to by the Appellant’s Counsel is contained in the proof of evidence which was duly served on the defence at the lower court. If Respondent omitted to tender same, nothing stops the Appellant to demand for same and tender it at the trial.
She referred to the various contradictions in the Appellant’s defence as follows:
(i) Appellant in his evidence on oath said on the 8th of May 2003 at some minutes past midnight one of the men inside the car opened the door to snatch the gun he had with him, by this his hand i.e. the accused hand was on the trigger and in the course of pulling the gun went off accordingly;
(ii) In the same breath, in his statement to the Police, exhibit ‘B’ he was emphatic when he said “when I shot him, I thought he was an armed robber;
(iii) I did not see weapon or suspected any stolen thing with him.
She argued that the Learned Trial Judge was justified to conclude that the Appellant’s so called accidental discharge of his gun is clearly an afterthought in view of the contradictory defences raised by the Appellant.
Learned counsel for the Respondent urged the court to hold that the lower court made a proper finding or evaluation of the facts and that this court should dismiss the appeal as lacking in merit and affirm the decision of the lower court.
The law places special duty or responsibility on the trial court that before convicting an accused person of the offence of murder, the trial court must consider in its judgment the defence specifically raised by the accused person With the totality of the evidence to determine whether there is reasonable doubt to be exercised in favour of the accused. See the case of ABEGUNRIN VS. THE STATE (2010) 10 W.R.N. at 160.
Such defence must be considered no matter how stupid it may seem. In the instant case, Appellant raised the defence of accidental discharge of his gun. The Learned trial Judge at page 32 of the record examined the defence of accidental shooting and had this; to say:
“I have considered the defence put up by the accused when he gave evidence on oath. He told the court that it was during the struggle between him and the deceased that an accidental discharge from his gun occurred…
I must confess that I am not at all persuaded by this defence. It is clearly an afterthought. I say so
because the evidence before the court as shown in exhibit C i.e. the medical report is that the deceased had a penetrating gunshot injury at the right middle part of the back. This fact shows that the accused could not have told the truth when he said on oath that ‘it was in the cause of struggling with the deceased that an accidental discharge from his gun occurred. The evidence shows that the deceased was moving away from the accused and apparently backing him when he was shot at the back.”
Again at page 33 of the record, the defence of whether the deceased was an armed robber was considered in the judgment as follows:
“The evidence before the court further reveals that the deceased could not have been an armed robber as the accused said he thought and could not have posed any threat to the accused because the deceased was not armed and no weapon or arms were found in the car in which he was driving at the material time.
In the circumstance, the question that arises is did the accused person have an interest to kill the deceased? The answer is yes. The intent to kill may be inferred from the nature of the weapon used. In this case, the accused without any threat to his life deliberately shot the deceased at the back. This is sufficient to disclose an intent to kill, I am of the view that the accused person harassed and killed the deceased person in order to impress his employers that he was up to his duty. I am quite satisfied that the act of the accused person was intentional with knowledge that death was its probable consequences”.
In this instance, the trial court duly considered all the defences that it perceived the Appellant was entitled to. See ABEGUNRIN VS. THE STATE (2010) 10 W.R.N. at 160; ANABI VS. THE STATE (2008) 13 N.W.L.R. Part 1103 at L79 and ULUEBEKA v. THE STATE (2011) 4 NWLR pt.1237 pg.358 at 383- 384 para 6-A.
Learned Counsel for the Appellant submitted that the Respondent did not call vital witnesses.
On the meaning and importance of vital witness, the Supreme Court in the case of THE STATE VS. JOSEPH NNOLIM & ANOR. (1994) 5 N.W.L.R. Part 345 Page 394 at 406 Para D stated as follows:
The question is what is a vital witness? A vital witness is a witness whose evidence may determine a case one way or another. Failure to call a vital witness by the prosecution is fatal to the prosecution’s case. OMOGODO VS. THE STATE (1981) 5 S.C. and ONAH VS. THE STATE (1985) 3 N.W.L.R. Part 12 at 236.
See also the case of OPEYEMI Vs. THE STATE (1985) 2 N.W.L.R Part 5 at 101 per Uwais J.S.C as he then was.
From the authorities cited above, the burden on the prosecution is to prove its case against the accused person beyond reasonable doubt, the prosecution has discretion to call only those witnesses required to unfold its case. The law does not impose on the prosecution the duty or function of both the prosecution and defence. See NKEBISI v. THE STATE (2010) 5 N.W.L.R Part 1188 at 471. There is no rule of law which imposes an obligation on the prosecution to call a host of witnesses to prove its case. See ADAYE v. THE STATE (1979) 6-9 SC at 18- OKONOFUA v. THE STATE (1981) 6-7 SC page 1 at 18.
In the instant case, the court believed and accepted the evidence of P.W.1 and P.W.2 given all the circumstances of the case. A single credible witness can establish a case beyond reasonable doubt unless where the law requires corroboration. See ONAFOWOKAN VS. THE STATE (1987) 3 N.WL.R Part 61 page 538 at 552 and OGOALA VS. THE STATE 1991) 2 N.W.L.R
Proof beyond reasonable doubt is not attained by the number of witnesses fielded by the prosecution. It depends on the quality of the evidence tendered by the prosecution. See AKALEZI VS, THE STATE (1993) 2 N.W.L.R Part 273 page 1 at 13.
The findings of the trial court are not perverse. A finding of fact is perverse where:
(a) It runs counter to the evidence properly adduced;
(b) Where it has shown that the trial court took into account matters which ought not to have been taken into account;
(c) Where the trial court shut its eyes to the obvious;
(d) Where the decision has occasioned a miscarriage of justice. See ATOLAGBE VS SHOUN (1985) 1 N.W.L.R Part 2 at page 260, ADIMORA vs. AJUFO(1988) 3 N.W.L.R Part 80 at page 1, STATE VS. AJIE (2000) 11 N.W.L.R Part 678 at 434 and ULUEBEKA VS. STATE (2011) 4 N.W.L.R Part 1237 page 358 at 381-382 paras F-C.
In the instant case, the findings of fact by the trial court are not perverse, Consequently this court will not intefere with same.
Issue 3 is also resolved against the Appellant.
Finally, this appeal lack merit and it is accordingly dismissed. The judgment of the lower court in suit no. 1/47/04 delivered on the 22nd of June, 2006 is hereby affirmed.

SIDI DAUDA BAGE, J.C.A.: I have had the opportunity to read to draft the lead judgment delivered by learned brother, M, FASANMI, J.C.A. I agree with his reasonings and conclusions reached and I entirely agree that the appeal lacks merit and it ought to be dismissed. I also dismiss same and I abide by the consequential order contained in the lead judgment.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: My learned brother, Fasanffii, J.C.A., gave me the privilege of perusing in advance the exhaustive judgment just delivered. I completely agree with it and adopt same as mine, with these few words on the preliminary objection.
There is no gainsaying it that the appellant signed the original notice of appeal himself before it was filed to provide foundation for the appeal and activate the jurisdiction of the Court over it. The originating process breathing life in the appeal was, therefore, properly initiated by the appellant in accordance with Order 16 Rule4 (1) of the Rules of this Court.
In my considered view, the appellant’s learned counsel was competent to sign any subsequent process of Court on behalf of the appellant on the strength of the existence of the valid original notice of appeal pursuant to Order 16 Rule 4 (2) of the Rule of this Court to wit: –
“Any other notice required or authorized to be given shall be in writing and signed by the person giving the same or by his legal representative.” (my emphasis)
Order 1 Rule 5 of the same Rules defines “legal representative” as –
“A person admitted to practice in the Supreme Court who has been retained by or assigned to a party to represent him in the proceedings before the Court”.
The word “appellant” is also defined in Order 1 Rule 5 thereof to mean –
“Any person who appeals from a decision of the court below and includes a legal practitioner representing such person in that behalf.” (my emphasis).
Flowing from the above, Mr Agwinede was right to sign the amended notice of appeal incorporating the additional grounds of appeal, as what was actually amended was not the notice of appeal itself but the grounds of appeal by extending their number. I think in such a case, the appellant was not required to sign the amended notice of appeal himself as he had a counsel of his choice representing him and protecting his interest in the appeal. The objection to the signing of the amended notice and grounds of appeal by Mr Agwinede on behalf of the appellant as appellant’s legal representative, quite apart from its technicality is, in my considered view, misconceived and is hereby discountenanced.
For the well considered reasons embodied in the judgment of my learned brother, Fasanmi, J.C.A., I too see no merit in the appeal and hereby dismiss it and affirm the judgment of the court below.

Appearances

S. O. AGWINEDEFor Appellant

AND

MRS A. E. GADE Senior Legal Officer Oyo State Ministry of JusticeFor Respondent