MUSA UMAR v. THE STATE
(2019)LCN/13277(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of May, 2019
CA/MK/192C/2017
RATIO
THE PROVISION OF SECTION 36 (6) (B) AND (D) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
Section 36 (6) (b) and (d) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides that:
Every person who is charged with a criminal offence shall be entitled to ?
(b) to be given adequate time and facilities for the preparation of his defence,…
(d) to examine in person or by his legal practitioner the witnesses called by the prosecution before any Court or Tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the Court on the same conditions as those applying to the witnesses called by the prosecution.PER JOSEPH EYO EKANEM, J.C.A.
PERSONAL LIBERTY AFFECTED WHEN A PERSON IS CHARGED WITH A CRIMINAL OFFENCE
In the case of Okoye V Commissioner of Police (2015) 17 NWLR (Pt. 1488) 276, 300 (also reported in (2015) 5 KLR (Pt. 363) 1493), Aka?ahs, JSC, opined that:
The moment an accused person is facing a charge, his personal liberty is at stake and before that liberty is taken away, he must be afforded every opportunity to defend himself once he becomes aware that he has a charge hanging over his neck for an infraction of the law and makes a request either orally or in writing for any facilities to prepare for his defence, the Court must accede to his request and the prosecution has to comply.”PER JOSEPH EYO EKANEM, J.C.A.
AN ACCUSED PERSON MUST BE AFFORDED FACILITIES TO DEFEND HIMSELF: WHAT ARE THESE FACILITIES
As to the meaning of facilities His lordship stated at page 296 as follows:
The facilities that must be afforded the accused person are the resources or anything which would aid the accuse person in preparing his defence to the crimes for which he is charged.See also Nweke V State (2017) 15 NWLR (Pt. 1587) 120. It is my view that facilities include witnesses for the accused person. Where an accused person is denied any facility, the trial of the accused person becomes unfair and liable to be set aside for being in breach of the accused person?s right to fair hearing.PER JOSEPH EYO EKANEM, J.C.A.
APPEAL: HOW TO RAISE AN ISSUE UNDER APPEAL
In the case of Mbang V State (2013) 7 NWLR (Pt. 1352) 48, 67, Chukwuma Eneh, JSC put the law in the following words:
It is settled law that a complaint against a specific finding of a lower Court on a matter on appeal to this Court need to be raised in this Court by a specific ground of appeal from which an issue would have been raised for determination.” See also Idiok V State (2008) 13 NWLR (Pt. 1104) 225, 239.PER JOSEPH EYO EKANEM, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
MUSA UMAR
(alias A-ONE) – Appellant(s)
AND
THE STATE – Respondent(s)
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): The appellant was the third accused person among the six accused persons who were arraigned before the High Court of Benue State in Charge No. MHC/12C/2007. They were charged for:
(1) Criminal conspiracy punishable under Section 97 of the Penal Code Law Cap. 124, Laws of Benue State, 2004;
(2) Culpable homicide punishable under Section 222 of the Penal Code Law;
(3) Membership of an unlawful assembly armed with deadly weapons with the common intention of attacking and killing punishable under Section 106 of the Penal Code Law.
At the trial, the prosecution called three witnesses and tendered eight exhibits. At the end of the case of the prosecution, the trial Court, on a no ? case submission, discharged all the accused persons except the appellant, who was directed to enter his defence.
In his defence, the appellant called two witnesses including himself. The appellant subpoenaed some persons to testify in his defence. When the subpoenaed persons failed to attend Court, appellant?s counsel closed the defence. After taking addresses from counsel on
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both sides, the trial Court found against the appellant in respect of count 2, and convicted him of the offence of culpable homicide punishable with death. He was accordingly sentenced to death.
Dissatisfied with the judgment and sentence, the appellant has appealed to this Court by means of a notice of appeal which incorporates four grounds of appeal.
The case of the prosecution against the appellant was that on 13/9/2012, the appellant and other persons invaded the venue of PDP councillorship primary election. The invaders were members of black skull cult. The appellant pulled out a pistol from his pocket and shot the deceased on the side of his face. The deceased died on the same day. The appellant denied the charges and testified that he was not at the scene of the incident.
?
Out of the four grounds of appeal, the appellant in his brief of argument settled by G.I. Enebeli, Esq., formulated the following three issues for the determination of the appeal:
?a. Whether the appellant was given fair hearing in the trial of this case. Distilled from ground 2.
b. Whether the trial Judge was right in its decision when he convicted the
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appellant for the offence of culpable homicide punishable with death relying on the evidence of a tainted witness (This issue relates to ground 3 of the notice of appeal).
c. Whether the prosecution has proved its case beyond reasonable doubt. This relates to ground 4.”
No issue is formulated from ground one of the grounds of appeal. It is therefore deemed to be abandoned. I accordingly strike out the same.
The respondent inspite of service of appellant?s brief of argument on her, did not file a respondent?s brief of argument nor did any counsel appear in Court to represent her on the date of hearing. I cannot muster enough words to condemn the indifferent attitude of the respondent to this appeal which involves death sentence passed on the appellant by the trial Court in a case prosecuted by her. The respondent must remember that it is under a duty to guide this Court in its bid to resolve this appeal. What is at stake namely; the life of the appellant, is too serious to be treated lightly as the State has done.?
Nevertheless the mere fact that the respondent has failed to file a brief of argument in this appeal does not
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translate to automatic success for the appellant. This Court still has to consider the merits or otherwise of the complaint of the appellant. In doing so, I shall adopt the three issues formulated by appellant?s counsel. I propose to consider issue (a) first as it raises the issue of fair hearing. Thereafter, I shall deal with issues (b) and (c) together.
Issue (a)
The issue raises a question as to whether the appellant was given fair hearing in the trial of the case. In the appellant?s brief of argument, the issue is argued as issue two. Appellant?s counsel referred to Sections 36 (6) (b) of the Constitution of Nigeria, 1999 (as amended). He stated that at the close of the prosecution?s case the appellant applied for a subpoena ad testificandum to be issued to PW3 (Inspector Benjamin Olade) and Corporal Magdalene Jato. He stated further that inspite of the subpoena, the two officers refused to attend the Court to testify and that counsel for appellant explained his frustration to the trial Court before closing his case.
?
He submitted that an accused person is at liberty to call any witness he feels would assist his case
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and the fact that a witness has been called at one stage by the prosecution will not diminish from his right to call the same witness for his defence. He cited and relied on Otufale V The State (1968) NMLR 261 to support his position. He contended that the failure of the officers to honour the invitation of the Court amounted to withholding evidence. He relied on Section 167 (d) of the Evidence Act and Amgbare V Sylva (2009) 1 NWLR (Pt. 1121) 90 to buttress his position.
Counsel proceeded to set out a portion of the evidence of PW3 and submitted that it appears from the evidence that at the time the offence was committed the appellant was already in police custody. He stated that a person cannot be in two places at the same time. Counsel invited the Court on the authority of Section 122 (2) (m) of the Evidence Act, 2011 to look at the written statement of the second subpoenaed witness attached to the proof of evidence, to wit; the investigation report of Cpl Magdalene Jato, which he said did not fix the appellant at the scene of the crime. He noted that Supol Azenda Samuel who reported the case was not called as a witness. He posited that these are the
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reasons why the subpoenaed witnesses refused or neglected to testify for the appellant because if they had testified, it would have been in favour of the appellant. He called in aid Section 167 (d) of the Evidence Act, 2011. He further posited that this was in breach of Section 36 (6) (b) and (d) of the Constitution of Nigeria. He added that the prosecution acted in bad faith when it refused to assist the appellant by prevailing on the two witnesses to attend Court and testify. He referred to Ogudo V State (2011) 18 NWLR 1, 33 without providing the part. He finally submitted that appellant did not have a fair trial in view of what he termed as ?the lackadaisical manner? he was defended by his counsel before 23/10/2015.
Resolution
Section 36 (6) (b) and (d) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides that:
Every person who is charged with a criminal offence shall be entitled to ?
(b) to be given adequate time and facilities for the preparation of his defence,…
(d) to examine in person or by his legal practitioner the witnesses called by the prosecution before any Court or
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Tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the Court on the same conditions as those applying to the witnesses called by the prosecution
In the case of Okoye V Commissioner of Police (2015) 17 NWLR (Pt. 1488) 276, 300 (also reported in (2015) 5 KLR (Pt. 363) 1493), Aka?ahs, JSC, opined that:
?The moment an accused person is facing a charge, his personal liberty is at stake and before that liberty is taken away, he must be afforded every opportunity to defend himself ? once he becomes aware that he has a charge hanging over his neck for an infraction of the law and makes a request either orally or in writing for any facilities to prepare for his defence, the Court must accede to his request and the prosecution has to comply.”
As to the meaning of ?facilities? His lordship stated at page 296 as follows:
?The facilities that must be afforded the accused person are the ?resources? or ?anything which would aid? the accuse person in preparing his defence to the crimes for which he is charged.?
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See also Nweke V State (2017) 15 NWLR (Pt. 1587) 120. It is my view that ?facilities? include witnesses for the accused person. Where an accused person is denied any facility, the trial of the accused person becomes unfair and liable to be set aside for being in breach of the accused person?s right to fair hearing. In the instant matter, counsel for appellant announced at page 286 of the record that he would be applying for subpoenas to bring two witnesses. At page 287 of the record, on another date, he announced that he intended to call four witnesses, two of which are on subpoenas. This shows that he had applied for subpoenas on two witnesses and the same was issued by the Court. So far, so good. At page 290 of the record, after having earlier called two witnesses who were not on subpoena, appellant?s counsel, A.A. Onoja, Esq. stated as follows:
?The case is for continuation of defence we had subpoenaed some witnesses and all our efforts to make them appear in Court failed we are constrained to close our case at this stage.”
E.T.C. Akula, Esq. for the prosecution had no objection.
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In his address at the trial Court, appellant?s counsel argued that the appellant was not given a fair trial because he was not given the facilities to aid him in his defence. He relied on Okoye V COP supra. The trial Court decided the point thus:
?In my view the facts of OKOYE V COP are slightly distinguishable as in the instance case this (Court) granted the request of the accused to have the police officers came to testify for him by issuing the subpoena I agree with the prosecuting counsel that the Court is not under any duty/obligation to provide the accused person with the witness to testify for his defence. I am of the view that after granting the accused application by issuing the subpoena on the witnesses sought but (sic: by) him the accused had the responsibility of ensuring their present in Court and when they failed/refused to attend the Court, the accused had the option of moving the Court to commit them for disobeying the Court order (subpoena) it is on the record that on the 21/10/2016 when this case came up for continuation of defence, the defence counsel had this to say.
?The case is for continuation of defence we had
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subpoenaed some witnesses and all our efforts to make them appear in Court failed. We are constrained to close at this stage.”
From the above, it is clear that the defence counsel knew or conceded the fact that it was their responsibility to make the witness appear in Court. I do not agree with the learned counsel that the refusal/failure of the other witnesses to appear in Court to testify for the accused amounts to withholding evidence by the prosecution as to be fated (sic: fatal) to the case of the prosecution. The Court has given the accused persons (sic) adequate opportunity to defend himself. He was therefore given fair trial.”
The foregoing is a specific finding of the trial Court regarding the issue of fair hearing raised by the appellant before it. There is no specific ground of appeal which attacks the finding. In the case of Mbang V State (2013) 7 NWLR (Pt. 1352) 48, 67, Chukwuma ? Eneh, JSC put the law in the following words:
It is settled law that a complaint against a specific finding of a lower Court on a matter on appeal to this Court need to be raised in this Court by a specific ground of
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appeal from which an issue would have been raised for determination.” See also Idiok V State (2008) 13 NWLR (Pt. 1104) 225, 239.
In this instance, ground 2 from which issue (a) is distilled, without its particulars reads:
?The learned trial judge erred in law when he failed to discharge the accused person upon the failure of the prosecution to sustain and prove their charge of culpable homicide punishable with death in violation of appellants? right to fair hearing.”
The ground is erected on the false assumption that the issue of fair hearing was not decided by the trial Court. It therefore fails to attack the specific finding of the trial Court that the appellant was given fair hearing. The finding of the trial court therefore remains unchallenged. That ought to be the fatal end of this issue. Nevertheless being a penultimate appellate Court, I shall proceed to consider the merit of the issue.?
Upon issuance of the subpoenas, and the failure of the subpoenaed witnesses to attend, it behoved counsel for appellant to find out if the subpoenas had been served on those to whom it was addressed. If the answer was in the
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affirmative, counsel, if he was bent on getting the witnesses to testify, ought to have applied for a bench warrant to be issued against those persons for their arrest and production in Court. This is because a subpoena is a Court process commanding a person to attend Court and produce a document or give evidence before the Court. Where a person fails to respond to the subpoena, the party who caused the subpoena to be issued is entitled to cause the defaulting witness to be arrested. In Nweke V State supra 140, it was held that the accused is to apply formally to the trial Court for an order compelling the respondent to make available those facilities which he requires for his defence. See also Madukaegbu V State (2018) 10 NWLR (Pt. 1626) 26, 46. After applying for subpoena, appellant?s counsel should have gone ahead to ask for a bench warrant on their failure to honour the same. The failure of the witnesses to attend will not lead to the conclusion that the opposite party withheld evidence and therefore attract the invocation of Section 167 (d) of the Evidence Act, 2011. See Buhari V Obasanjo (2005) 13 NWLR (Pt. 941) 1, 257.
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Counsel for the appellant did not bother to find out if the subpoena had been served on the potential witnesses and to worsen the situation, he tamely gave up the pursuit of the subpoena ad testificandum by closing his case instead of applying for a bench warrant to be issued for the arrest of the defaulting witnesses. He can not now seek to capitalize on his choice to close his case by waiving Section 36 (6) (b) and (d) of the Constitution of Nigeria, 1999 (as amended) at the Court. I agree with the trial Court that the appellant was given opportunity to defend himself and that the refusal or failure of the witnesses to appear did not amount to withholding evidence.
It was the contention of appellant?s counsel that another evidence of lack of fair trial was the lackadaisical manner that appellant was defended by the counsel representing him before 28/10/2015. Counsel did not bother to point out the instances of the ?lackadaisical manner? of the defence counsel before he took over the defence. Such an accusation is too grave to be made casually and in a cavalier manner as counsel has done. Besides, in Okeke V State (2003) 15 NWLR (Pt. 842) 25, 111, Tobi,
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JSC, state that,
?I do not think inefficiency or inadequacies of counsel can give rise to defence that an accused person was denied fair hearing.”
I therefore discountenance the contention of appellant?s counsel.
On account of what I have said thus far, I enter an affirmative answer to issue (a) and resolve it against the appellant.
Issues (b) and (c)
– Whether (or not) the trial Judge was right in his decision when he convicted the appellant for the offence of culpable homicide punishable with death relying on the evidence of a tainted witness.
– Whether the prosecution has proved its case beyond reasonable doubt.
?
Appellant?s counsel classified a tainted witness as one who is either an accomplice or, by the evidence he gives, could be regarded as having some purpose of his own to serve. He referred to the evidence of DW1 who testified that the PW1 is his cousin while the appellant is the father of his daughter. She further testified that the PW1 said that he would ?show him? and kill him (the appellant) for impregnating her and failing to marry her. He also referred to the evidence of the
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appellant to the same effect. Counsel submitted that the PW1 was therefore a witness who might have a purpose of his own to serve and as such his evidence ought to have been treated with considerable caution and should have been examined with a tooth comb. He lamented that the record of the trial Judge did not reflect such caution and warning before he relied on PW1?s evidence. He urged the Court to set aside the decision on this account, relying on Mbenu V State (1988) 3 NWLR (Pt. 84) 515, 525, among other cases. He added that the evidence of PW1 was not corroborated.
Counsel submitted that the prosecution failed to prove its case beyond reasonable doubt by relying on the evidence of PW1, a tainted witness. He contended that there is room for believing that the appellant was not the one responsible for the death of the deceased. He stated that in Exhibit 5, the extra ? judicial statement of the appellant, he (the appellant) stated that it was one ?Musa Balance? who shot the deceased; that it was then that a fight broke out and he (the appellant) ran away to save his life. He stated that the prosecution failed to investigate this
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information and this failure created doubt in the prosecution?s case.
Counsel noted that in the PW1?s statement to the police, he (the PW1) mentioned the person who shot the deceased as ?Baban Wa?. He stated that this was contrary to his evidence in court. He submitted that the evidence of PW1 was therefore unreliable. He contended that the prosecution ought to have tendered the statement the PW1 made to the police. He urged the Court to look at the statement though it was not tendered in evidence by virtue of Section 122 (2) (m) of the Evidence Act, 2011.
Continuing, counsel submitted that the bullet (Exhibit 2) tendered by the prosecution could not be used to ascertain the actual weapon used in killing the deceased and noted that there was no ballistic report. He urged the Court to disregard the medical report (Exhibit 1) as it is an uncertified photocopy of a medical report and the maker did not testify.
Resolution
The trial Court found the appellant guilty and convicted him of the offence of culpable homicide punishable with death by causing the death of Iduh Agadache (the deceased). He was accordingly sentenced
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to death. The offence of culpable homicide punishable with death has the following ingredients, to wit;
(1) That the death of a human being has occurred
(2) That the death was caused by the accused person
(3) That the act of the accused was done with the intention of causing death, or that the accused person knew or had reason to know that death would be the probable and not only the likely consequence of his act ? See Musa V State (2012) 10 LRCN CC 250, and Galadima V State(2017) 14 NWLR (Pt. 1585) 187.
The burden was on the prosecution to prove the guilt of the appellant beyond reasonable doubt. The term ?proof beyond reasonable doubt? does not mean proof beyond the shadow of doubt. It means the prosecution establishing the guilt of an accused person with compelling and conclusive evidence. It means a degree of compulsion which is consistent with a high degree of probability. If the evidence is strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence, ?of course it is possible but not in the least probable?, the case is proved beyond reasonable doubt.
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SeeIkpa V State (2016) 10 NWLR (Pt. 1521) 501, 519. Where the standard is not attained by the prosecution, the accused person must be discharge and acquitted.
In the instant matter, as earlier stated, the trial Court found that the case against the appellant had been proved beyond reasonable doubt and so it convicted him of the offence of culpable homicide.
There seems to be no contest in this appeal as to ingredients number 1 and 3 of the offence of culpable homicide. The contest is as to who caused the death of the deceased. In other words, the contestation of the appellant is that he was not the person who shot dead the deceased. The trial Court, relying mainly on the evidence of PW1, found that the appellant was the person who killed the deceased by firing a gun at the side of his face. The PW1 testified that he knew the appellant before the incident. The evidence of DW1 and the appellant (as DW2) confirms this fact. It was therefore a case of recognition of the appellant by the PW1. In the case of R V Turnbull (1976) 3 WLR 445, 447, which was quoted with approved by the Supreme Court in Abudu v State (1985) 1SC 222, 242 ? 243, Lord
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Widgery, C. J. stated that:
?Each of these appeals raises problems relating to evidence of visual identification in criminal cases. Such evidence can bring about miscarriages of justice and has done so in a few cases in recent years. The number of such cases, although small compared with the number in which evidence of visual identification is known to be satisfactory, necessitates steps being taken by the Courts including this Court, to reduce that number as far as possible. In our judgment, the danger of miscarriage of justice occurring can be much reduced if trial Judges sum up to juries in the way indicated in this judgment.
First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications?
Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be
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reminded that mistakes in recognition of close relatives and friends are sometimes made. All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused?s case, the danger of a mistaken identification is lessened; but the poorer the quality, the greater the danger.”
The trial Court, after assessing evidence on record, held at page 331 of the record of appeal thus:
?I believe the PW1?s evidence that he saw the accused person at the venue and the part he played. In the circumstance, I find that the prosecution has proved that the death of Iduh Adagache was caused by the act of the accused person
It was the contention of appellant?s counsel that the PW1 was a tainted witness and so the trial Court ought to have treated his evidence with considerable caution and should have examined it with a tooth comb.
Who is a tainted witness? How does the law treat his evidence? In Mbenu v State (1988) NWLR (Pt.84) 615, 626 ? 267, Nnamani, JSC, stated:
?A tainted witness is a witness who, though not an accomplice, is a witness
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who may have a purpose of his or her own to serve. This Court has always held that the evidence of such a witness should be treated with considerable caution and should be examined with a tooth comb. Indeed, trial Courts have been advised to be wary in convicting on the evidence of such witnesses without some corroboration? The requirement that a trial Judge should in such circumstances, warn himself as one would in the case of accomplices, is one dictated by prudence not by law.” See also Moses v State (2006) 11 AWLR (Pt. 992) 458, 488, Ali v State (2015) 10 NWLR (Pt. 1466)1, 34 and Ochani v State (2017) 18 NWLR (Pt. 1596) 1, 29.
The contention of appellant?s counsel that the PW1 is a tainted witness is based on the evidence of DW1 that the appellant is the father of his daughter and that PW1, who she said is her cousin, threatened to ?show him? and ?kill him? (that is the appellant) when he (appellant) impregnated her and failed to marry her.?
The PW1 testified and was cross ? examined by counsel for appellant (as well as other accused persons then). All through the cross-examination of PW1 not one
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question was asked regarding his alleged threat against the appellant nor was that allegation put to him. See pages 211 ? 213 of the record. Again, in his extra ? judicial statement, Exhibit 5, the appellant did not make such an allegation. This was the exact scenario that came up in the case of Adetola v State (1992) 4 NWLR (Pt. 235) 63, where 1st appellant complained that the PW1 was nursing grudges against him which grudges made the PW1 a tainted witness. The ?grudge? was that the 1st appellant had earlier refused to sell land to PW1?s friend on behalf of whom PW1 approached him to do so. In the course of his oral submission to the Supreme Court, learned Senior counsel for 1st appellant was asked:
?Court Q: Did you put the facts on which you now rely to say PW1 and PW3 are tainted witnesses to them.?
His reply was ?No.?
Nnamani, JSC, at page 273 held:
?To be capable of inducing belief, the story of the alleged land transaction and the bad blood between PW1 and the appellant which it is alleged resulted therefrom must be put to PW1 under cross-examination for her to answer to.
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It is only after she has done so that the trial Court can be in a position to decide firstly on the veracity of the allegation, and secondly, whether it in fact affected or was capable of affecting the mind of the complainant (PW1) so as to justify her being classified as a tainted witness. Not only was this not done, but as respondent?s counsel had rightly submitted, the allegation was not made timeously, to wit, in the 1st appellant?s statement to the Police (Exhibit C, D2 and E). It was only made from the witness box, after the 1st appellant had testified.?
The Supreme Court therefore did not see the PW1 in that case as a tainted witness. See also Ali v State (2015) 10 NWLR (Pt. 1466) 1, 35.
Furthermore, the learned trial judge stated at page 336 of the record that:
?I do not believe that the PW1 had an axe to grind with the accused person when the DW1?s elder brother Innocent and her parents are available and the DW1 said that they cannot come to Court to testify to what she has said. The accused himself accepted the fact that he could bring Innocent and DW1?s evidence to Court to testify.?
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I agree with the learned trial judge who was right in holding that the PW1 is not a tainted witness.
Appellant?s counsel contended that the statement of the PW1 to the Police should have been tendered by the prosecution. He also referred to the said statement in a bid to show that there was a conflict between what the PW1 said in Court and his extra ? judicial statement. He urged the Court to look at the statement and also apply Section 167 (d) of the Evidence Act, 2011. This Court cannot look at the extra ? judicial statement of the PW1 because it was not tendered and admitted as an exhibit. The prosecution is not permitted by the law to tender the extra- judicial statement of its witnesses. Such statements can only be used by the defence for the purpose of cross- examining prosecution witnesses as to their credit. This was not done during the trial. In the case of Esangbedo v State (1989) 4 NWLR (Pt. 113) 57, 66 ? 67 Nnaemeka ? Agu, JSC, stated the law as follows:
?We cannot look at the extra?judicial statements of PW1, PW2, PW4 and PW9 which were not tendered exhibits during the trial because those
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statements cannot be legal evidence. An appellate Court is bound to base its consideration of every appeal before it upon legal evidence upon which the Court below acted. Even in the Court of trial, the only proper use that could have been made of those extra-judicial statements of witnesses was to have used them for cross ? examination of those witnesses in order to discredit their testimony, to show that their testimony in Court was unreliable. In that case, it would have been necessary to tender the statements, to draw the attention of each witness to the portion of his previous statement that is in conflict with his instant testimony and give him the opportunity to explain the inconsistency. See also Attah v State (2010) 10 NWLR (Pt. 1201) 190, Lucky v State (2016) 13 NWLR (Pt. 1528) 128, 161, Kekong v State (2017) 18 NWLR (Pt. 1596) and Ikpa v State (2018) 4 NWLR (Pt. 1609) 175, 200.
I therefore respectfully decline the invitation of appellant?s counsel for this Court to look at the extra-judicial statement of PW1.
Appellant?s counsel also contended that the bullet (Exhibit 2) tendered by the prosecution could not be used to
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ascertain the actual weapon used in killing the deceased and that there was no ballistic report. He also urged the Court to discountenance the medical report as it was an uncertified photocopy of a public document and was not tendered by its maker. I shall start with the last but one point. The learned trial judge at page 331 of the record of appeal decided on this point thus:
“Exhibit 1 is an original form not secondary evidence. By virtue of Section 89 and 90 of the Evidence Act 201, (sic) it is only when the public document to be tendered in (sic) secondary evidence of the original that it is required to be certified. The argument of defence counsel on that point does not hold water.?
There is no ground of appeal which has attacked this specific finding and as such counsel for the appellant is not entitled to attack it through the back door by raising it in his argument. The same consideration applies to his contention that the report was not tendered by its maker. See Mbang v State supra.
In any event, all the arguments about the bullet, ballistic report and the medical evidence are of no moment. This is because medical evidence is
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unnecessary in this instance in which the deceased was attacked with a lethal weapon, a gun, fired at his face, and he died on the same day. The Court can therefore infer that the gunshot wound caused his death. See Idemudia v state (1999) 69 LRCN 1043, 1078, Garba v State (1999) 11 NWLR (Pt. 627) 422, 435 and Kassim v State (2018) 4 NWLR (Pt.1608) 20,50.
Appellants counsel contended that the failure of the prosecution to investigate Exhibit 5, the appellants extra-judicial statement to the effect another person named Musa Balance shot the deceased person, was fatal to the prosecution?s case. In Exhibit 5, the extra ? judicial statement of the appellant to the Police, he stated that:
On 13/9/2012, I was at the venue of the PDP Primary election at Demekpe. While I was on the line ready for election, one boy by name Usman Balance alias S.S. a member of Red Skin came to the elect venue and removed a gun and he was shouting Aroo, Aroo ? meaning his cult men should come, and they started fighting – thus everybody started running ? when I heard the gun shot I ran and jumped over the fence to my house? Oche
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Adagache was killed by members of the black skull but, I don?t know the actual person that killed the deceased.
In the first place, the statement does not categorically say that the deceased was shot and killed by Musa Balance. Rather it says that he was killed by a member of Black skull and that he did not know who actually killed the deceased.
There is no evidence from the prosecution that the Police investigated the statement of the appellant that the deceased was killed by a member of the Black Skull. In the case of Opeyemi v State (1985) 2 NWLR (Pt.5) 101, the PW1 testified that the accused attacked him with a matchet and severed his hand from the arm. In his defence, the accused testified that the hand of PW1 was severed by one Ademola Idowu. In Exhibit D, the extra-judicial statement of the accused, he stated that it was Ademola who cut off the hand of PW1 with a matchet. The trial Court disbelieved him and convicted him. The Court of Appeal affirmed his conviction. On a further appeal to the Supreme Court, Uwais, JSC, as he then was, at page 109, in allowing the appeal, opined that:
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In the present case, it is the prosecution that put Exhibit D in evidence, so that the exhibit became part of the prosecutions case. The allegation in Exhibit D that it was Ademola that cut-off the hand of PW1, if true, would have had the effect of exonerating the accused from the charge against him. It could also have knocked off the bottom of the prosecutions case. Therefore if the prosecutions case was to be proved beyond reasonable doubt it became incumbent on the prosecution to call Ademola to deny the allegation made by the accused against him In my opinion, therefore, the failure of the prosecution to call Ademola was fatal to their case.
Obaseki, JSC, at pages 110 -11 stated:
Since it was the duty of the prosecution to investigate the complaint and ensure that the proper person is brought before the Court to answer the charge, such duty dictates that investigation be carried out to ascertain whether there was a person by name Ademola, whether there was an invasion of the premises of the uncle of the appellant by the said Ademola, PW1 and others which resulted into a fight whether it was in that fight PW1 lost his hand in an
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attack, whether it was the appellant who attacked PW1 with a matchet and inflicted the injury or whether it was any person by name Ademola. This is a duty that justice demands that any investigating officer carries out.?
His Lordship concluded at page 112 that the investigating Police constable was a vital witness and that his failure to testify made Ademola a vital witness. Nnamani, JSC, at page 114 opined that:
“The failure to investigate the appellant?s allegation and to call Ademola as a witness leaves a lingering doubt about the appellant?s guilt and this must be resolved in his favour.
The decision above was followed by this Court in Osuoha v State (2010) 16 NWLR (Pt. 1219) 364, 411 – 412.
In this instance, as earlier stated, the appellant in his extra- judicial statement stated that an unknown member of the Black Skull killed the deceased. The statement was taken down by W/Cpl Pauline Iyande. Although she was listed as a witness on the proof of evidence, she was not called by the prosecution to testify as to her investigation of the statement of the appellant. Ordinarily this ought to be
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fatal to the case of the prosecution going by the authorities above. It is however my humble view that the failure is not fatal to the case of the prosecution. I shall attempt to demonstrate why I have reached this conclusion hereunder.
The appellant in his statement Exhibit 5 made the allegation as stated above, that is that, he was at the scene; where and when the deceased was killed but in his evidence ? in chief he testified as follows:
“I did not know anybody by the name Adagache on the 13/9/2012 when Adagache was allegedly shot, I was at ?A? Division Police Station in custody over an allegation of belonging to unlawful society.?
In other words, while in his extra-judicial statement, the appellant stated that he was at the scene of the shooting of the deceased, in his oral evidence, he stated that he was not at the scene at all but rather was in Police custody. In the case of Opeyemi v State supra. the accused person was consistent in his story both in his statement to the Police and evidence in Court that he was at the scene of the crime and that it was Ademola who cut off the hand of the PW1. In this matter,
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the evidence of the appellant clearly and loudly contradicted his statement to the Police. The law is that where a witness (and that includes an accused except in respect of his confessional statement) is shown to have made a previous statement inconsistent with the evidence given by him in Court, the evidence at the trial should be regarded as unreliable and the previous statement does not constitute evidence which can be acted upon unless he gives a satisfactory explanation for the inconsistency. See Onubogu v State (1974) 9 SC1, State v Okolo (1974) 2 SC 73 and Akinola v State (2016) 2 NWLR (Pt. 1497) 503, 531.
It flows from the above that the failure of the Police to investigate appellant?s statement in Exhibit 5 that the deceased was killed by a member of the Black Skull is not fatal to the case of the prosecution as his statement in Exhibit 5 as to who shot the deceased does not constitute evidence which can be acted upon by the Court.
Furthermore the statement is vague as to who killed the deceased and how; and so the Police were not expected to go on a wild goose chase to investigate the vagueness spewed out by the appellant.
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It was the contention of the appellant?s counsel that from the evidence of PW3, it was evident that the appellant was already in Police custody as at when the deceased was shot and killed. The testimony of PW3 (a Police investigator) which appellant?s counsel relies upon to so contend is at pages 223 -224 of the record of appeal. It is as stated hereunder:
?I know all the accused persons, I got to know them when the Police at ?A? Division Makurdi transferred a case of belonging to unlawful society together with three of the accused persons here namely; Adulrahaman Dauda (1st accused) Adamu Sanga (2nd accused) and Musa Umar (3rd accused)? in the cause of investigation, D Division Police transferred a case of culpable homicide against all the accused persons who were already in our custody except in 6th accused person
In cross ? examination at pages 266 of the record, he stated that,
?The 1st accused had been arrested for being a cultist and was in our custody before the report of the killing of Iduh Adagache was brought to us.
The testimony of the PW3 above cannot be interpreted to
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mean that the killing of Iduh Adagache (the deceased) occurred when the appellant and two others were in custody. It simply means that those persons were already in custody when the case of the killing of the deceased was transferred to the Police formation where PW3 was serving. There is nowhere the PW3 testified that the appellant and two others were already in Police custody as at when the killing of the deceased occurred. This is apart from the extra ? judicial statement of the appellant that he was at the scene of the crime on the date and time of the commission of the crime. The contention of appellant?s counsel therefore holds no water.
The learned trial judge accepted the evidence of PW1 an eye witness in finding the appellant guilty. The law is that where a single witness called by the prosecution is neither an accomplice nor a tainted witness, a Court of law is entitled to convict mainly on his credible evidence where his testimony did not by law require corroboration. Once the Court is satisfied with the cogency, high quality and credibility of the evidence of a witness and accepts it, conviction based on such evidence should not be
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interfered with unless such evidence by law requires corroboration. See Commissioner of Police v Kwashie (1953) 14 WACA 319, Oguonzee v State (1998) 58 LRCN 3512, 3551 and Sule v State (2009) 171 LRCN 1, 26 ? 27.
The instant matter fails squarely within the above prescription of the law. I see no reason to interfere with the finding of the trial Court.
I therefore resolve issues (b) and (c) against the appellant. On the whole, I find that the appeal has no merit. It fails and I accordingly dismiss the appeal. I affirm the judgment of the trial Court.
JUMMAI HANNATU SANKEY, J.C.A.: I have had the privilege of reading in advance the Judgment just delivered by my learned brother, Ekanem, JCA. It is sufficient to say that I agree with his reasoning and conclusions, which I adopt as mine.
Where a subpoena ad testificandum has been issued at the instance of a party, it is incumbent on the party applying for same to draw the attention of the Court on whether the subpoena has been obeyed or not. It is not the business of the Court to ascertain if a witness who has been subpoenaed to appear in Court has obeyed the subpoena unless the Court or Judge
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issued the subpoena suo motu.
A subpoena is unquestionably an order of Court. Accordingly, if a person summoned to testify or to produce a document fails to obey the specific instructions in the subpoena, such a failure or refusal amounts to contempt of Court punishable either by a fine or imprisonment or both, unless the person excuses his failure or refusal to the satisfaction of the Court. By implication therefore, the duty is on the Counsel to first ensure that the subpoena was duly served on the person so subpoenaed and they have deliberately failed to obey same. Thereafter, Counsel should move the Court to either enforce his appearance or to visit sanction on him as is appropriate in the circumstances. see CPC V INEC (2011) LPELR- 9085(CA) 37-38, per Akaahs, JCA (as he then was); Lawal V Magaji (2009) LPELR-4427(CA) 66, per Sankey, JCA. Clearly, from the facts of the case, very little was done by Counsel for the Appellant toward the implementation of the subpoena issued by the trial Court. There was nothing placed before the trial Court to confirm that the witnesses subpoenaed had been duly served the subpoenas and yet had deliberately kept away
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from Court. The Court was also not moved to commit the witnesses, who were in default, for contempt of Court in a situation where the accused person was facing such a grave charge. It was therefore not for the trial Court to descend into the arena of battle to do that which was supposed to have been done by Counsel, the most basic of which was to establish that the subpoena had, in the first place, been served on the witnesses. I therefore agree that the Appellant has failed to show how his right to fair hearing has been breached.
It is therefore for this reason and for the reasons marshalled in the lead Judgment that I find no merit in the Appeal. It fails and is dismissed. I abide by the consequential Orders made.
ONYEKACHI AJA OTISI, J.C.A.: I had the privilege of reading in advance the draft copy of the Judgment just delivered by my learned Brother, Joseph E. Ekanem, JCA, dismissing this appeal. I agree with, and adopt as mine, the comprehensive resolution of the issues raised therein. I will only make brief comments in support.
?In arriving at a conviction in criminal cases, the Court is concerned with whether or not
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there is sufficient credible evidence of probative value and not the number of witnesses called on an issue; Oguonzee v. State (1998) LPELR-2357(SC). Thus, what is important is not the number of witnesses but the quality of evidence proffered, even if from only one witness, cogent and compelling, that would suffice; Onafowokan v. The State (1987) LPELR-2666(SC); Chidozie v cop (2018) LPELR 43602 (SC); Bassey v The State (2019) LPELR-46910(SC). Therefore, where single witness called by the prosecution is neither an accomplice nor a trained witness, a Court of law is entitled to convict mainly on his credible evidence, where his testimony did not by law require corroboration. Once the Court is satisfied with the cogency, high quality and credibility of the evidence of a witness and accepts it, conviction based on such evidence should not be interfered with unless such evidence by law requires corroboration;Commissioner of Police v. Daniel Kwashie (1953) 14 WACA 319; Adisa v The state (2014) LPELR-24221(SC). The learned trial Judge was satisfied with the evidence of PW1, which I also accept as being credible and cogent. The conviction of the Appellant on his
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evidence was therefore in line with the law.
For this reason and for the more detailed reasons in the lead Judgment, I also dismiss the appeal and affirm the judgment of the trial Court.
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Appearances:
G. I. Enebeli, Esq.For Appellant(s)
No representation for respondent though served with hearing noticeFor Respondent(s)
Appearances
G. I. Enebeli, Esq.For Appellant
AND
No representation for respondent though served with hearing noticeFor Respondent
