THE STATE V FATAI AZEEZ & ORS
In the Supreme Court of Nigeria
Friday, April 18, 2008
Case Number: SC.123/2005
NIKI TOBI, JSC JUSTICE, SUPREME COURT
GEORGE ADESOLA OGUNTADE, JSC, JUSTICE, SUPREME COURT
IKECHI FRANCIS OGBUAGU, JSC, JUSTICE, SUPREME COURT
IBRAHIM TANKO MUHAMMAD, JSC, JUSTICE, SUPREME COURT
IBRAHIM TANKO MUHAMMAD, JSC, JUSTICE, SUPREME COURT(Lead Judgment).
1. FATAI AZEEZ2. GANIYU LASISI3. KAREEM SHITTU4. RASHEED ADESOYE5. ISSA KALAM ADESOYE6. NOAH ADEPOJU.
- T. MUHAMMAD, JSC
(Delivering the Judgment by the Court):
At the Kwara State High Court of Justice (trial court), holden at llorin, 3 different charges were with the leave of the trial court, preferred against each of the 6 respondents herein, as accused persons. The 6 accused persons were tried jointly. Hereinbelow are the charges:
“CHARGE NO. 1
That you (1) Fatai Azeez Adesoye
(2) Ganiyu Lasisi
(3) Kareem Shittu
(5) Isa Kalam Adesoye
(6) Noah Adepoju on or about the 1st day of April, 2003 at Lamodi Land along Adeleke Area of Offa in Offa Local Government Area of Kwara agreed to do an illegal act to wit shot dead one Raufu Balogun with locally made pistol and severely injuring Mukaila Abdulsalam Balogun and Rasheed Salam Balogun with gun shots and same act was done in pursuance of an agreement and you thereby committed an offence punishable under section 97 (1) of the Penal Code.
That you (1) Fatai Azeez Adesoye
(2) Ganiyu Lasisi
(3) Kareem Shittu
(4) Rasheed Adesoye
(5) Isa Kalam Adesoye
(6) Noah Adepoju on or about the 1st day of April, 2003 at Lamodi Land along Adeleke Area of Offa in Offa Local Government Area of Kwara State did cause Grevious(sic) to the persons of Mukaila Abdulsalam Balogun and Rasheed Salam Balogun by shooting a locally made pistol at them and thereby committed an offence punishable under section 248(1) of the penal code.
That you (1) Fatai Azeez Adesoye
(2) Ganiyu Lasisi
(3) Kareem Shittu
(4) Rasheed Adesoye
(5) Isa Kalam Adesoye and Noah Adepoju on or about the 1st day of April, 2003 at Lamodi Land along Adeleke Area of Offa in Offa Local Government Area of Kwara State did commit culpable homicide punishable with death in that you caused the death of one Raufu Balogun by shooting the deceased with a locally made gun with the intention of causing his death and you thereby committed an offence punishable under section 221 of the Penal Code.”
Each of the accused persons pleaded not guilty on each of the charges.
Hearing commenced on the 9th day of February, 2004. The prosecution called a total of 8 witnesses. Each of the accused persons testified in his own behalf and 9 witnesses in all testified for the defence.
At the close of evidence the two learned counsel on both sides addressed the trial court. The
learned Attorney-General by consent of the counsel for the accused persons, filed and adopted a written address on oral address.
After evaluation of evidence placed before him vis-à-vis the prevailing law, the learned trial judge, found all the 3 charges proved beyond reasonable doubt against each of the accused guilty as charged and convicted each of the accused as charged. He finally sentenced each of the convicts to death by hanging on the 1st and the 3rd charges. On the 2nd charge, the learned trial judge sentenced each of the convicts to 2 years imprisonment with hard labour.
Dissatisfied with the trial court’s judgment, each of the condemned prisoners filed a separate Notice of Appeal to the Court of Appeal, llorin (court below) challenging the convictions and sentences passed on him by the trial court. The court below, per Abdullahi, JCA; stated, inter alia:
“This appeal is pregnant with some merits. The decision of the learned trial judge convicting the Appellants as charged cannot stand and it is hereby set aside. The conviction and sentence imposed by the lower court are hereby quashed. The Appellants are discharged and acquitted on all the counts.”
The state, as respondent at the court below, now appellant before this court, felt aggrieved with the decision of the court below and filed its appeal to this court. The Notice of Appeal contained six grounds of appeal (pp 296 – 304 of the printed record of appeal). Leave was granted by this court to the respondents to raise and argue a new point of law.
Briefs were settled by the parties in compliance with Order 6 Rules 5(1)(a) and (2) & (3) of the Supreme Court Rules (as amended in 1999). Learned counsel for the appellant, J. A. Mumini Esq. (DPP Kwara State Ministry of Justice) formulated the following issues:
“3.02 Issue 1 (Relates to Ground 1)
Whether the Court of Appeal was right to have held that the Non calling of two independent witness by the prosecution, created doubt on the case of the prosecution sufficient to discharge and acquit the Respondents on the three count charge against them.
3.03 Issue 2 (Relate to Grounds 2)
Whether having regard to the evidence led by the prosecution, the Court of Appeal was right to have held that the prosecution has failed to prove its case beyond reasonable doubt.
3.04 Issue 3 (Relates to Grounds 3)
Whether the Court of Appeal was right to have refused and or neglected to give considerations to the issues formulated by the parties before in this case.
3.05 Issue 4 (Relate to Grounds 4. 5 and 6)
Whether the Court of Appeal was right to have refused and or neglected to adequately consider and properly examine the defence of Alibi raised by all the Respondents herein by contaminating same or mixing up same with the issue of non calling of two witnesses.”
Learned counsel for the respondents, R. A. Lawal Rabana Esq. submitted 3 issues for determination. They are as follows:
“1. Whether the Lower Court was wrong to have held that the defence of Alibi exonerated the respondents (Grounds 2, 4, 5 and 6 of the Notice of Appeal)
- Whether the Prosecution’s case was devoid of reasonable doubt. (Grounds 1, 2, 5 and 6 of the Notice of Appeal)
- Whether in the circumstances of this case, the Lower Court was bound to review all the issues submitted for consideration. (Ground 3 of the Notice of Appeal).”
Permit me my Lords, before I come to consider the issues for determination, to render a concise story of the facts giving rise to this case. It all started as a result of land dispute. It all happened in the process of cutting of trees on the land in dispute. Some twelve people and others said, fifteen, emerged from the bush; some of them armed with locally made guns, came shooting. In the process one Rafiu Balogun died while others were injured. Eye witness accounts of PWs 2, 3 and 4 were given in addition to the evidence of PWs 5, 6 and 8. The defence of alibi was put up by each of the accused persons. The trial court rejected that defence. The trial court having found the prosecution to have proved its case beyond reasonable doubt sentenced the respondents accordingly as charged.
Let me now proceed to consider the issues and arguments made out by each of the parties to this appeal.
Issue No. 4 formulated by the appellant (issue No. 1 by the respondents) is on the defence of alibi raised by the respondents at the trial court. It is pivotal in this case. It is pertinent that I should consider it first. ALIBI. originates from LATIN. It stems from a combination of two words: “ALIUS” and “IBI” or “UBI” meaning: “other” and “There” or “where”, respectively. Put
together under English usage, it means “elsewhere”. See: Alani v. State (1993) 7 NWLR (Pt.303) 112 at 124; Gachi v. State (1965) 1 NMLR 333 at 335; State v. Ozaki (1986) 5 NWLR (Pt.40) 258 at 269; Adekunle v. State (1986) 5 NWLR (Pt.123) 505 at 513.
ALIBI means that the accused person was somewhere other than where the prosecution alleges he was at the time of the commission of the offence making it impossible for him to have committed or participated in the commission of the offence with which he was charged. See: Bozin v. The State (1985) 7 SC 450 at 472; Okosi & Anor v. State (1989) 1 NWLR (Pt.100) 642 at 666; Onuoha & Ors v. The State (1989) 2 NWLR (Pt.101) 23 at 37; Peter v. The State (1994) 5 NWLR (Pt.342) 45 at 71. Furthermore, it is a defence by which an accused person alleges that at the time when the offence with which he was charged was committed he was elsewhere. See: Chia & Ors v. The State (1996) 6 NWLR (Pt.455) 465 at 480; Okosi & Anor v. State (1989) 1 NWLR (Pt.100) 642 at 666.
Where an accused person has put up a defence of alibi, what the law requires him to do is to introduce evidence of alibi. The onus is on him to prove where he was at the time of the incident and he has to call evidence to support his defence of alibi. Once the defence of alibi is raised it is for the prosecution to investigate it properly as failure to do so could raise reasonable doubt in the mind of the court and will lead to quashing the conviction. See: Adele v. State (1995) 2 NWLR (Pt.377) 269; Onuchukwu v. State (1998) 4 NWLR (Pt.547) 576; Odili v. State (1977) 4 SC 1: Onafowokan v. State (1987) 3 NWLR (Pt.61) 538.
It is the finding of the trial court that the accuseds’ evidence on their defence of alibi is self contradicting and there were contradictions as to the times given in their evidence and that of their various witnesses. It held that the defence of alibi raised by the accused crumbled and had failed. After summing up the principles of law on Alibi and the evidence of the parties on same the court below, on the other hand, held that the defence of alibi exonerated the respondents.
For clarity sake, I crave my Lords indulgence to recast the evidence made available before the trial court. It is important to note from the outset that each of the respondents raised the defence of alibi at the earliest opportunity available to him and that was when each was arrested and requested to make a statement to the police. The commission of the crime was said to have been done on the 1st of April, 2003 between the hours of 7.00 am to 7.30 am. Each of the respondents put up his defence of alibi as follows:
[a] 1st Respondent
In his statement to the police on his arrest which was admitted in evidence as Exh. P1 the 1st respondent stated inter alia, as follows:
“on 1/4/2003 at about 0700hrs while I was still sleeping that I saw my friend Mustapha a.k.a. Boys city that woke me up and we were together till 0740hrs when my wife called that I should come and convey the children to school and as I was going my friend Mustapha also left and from the school I went to Atanoba area to collect house rent from a Polytechnic lecturer, I met him with the landlord son named Sarafa Babalola. I left the place at about 0830hrs for my house I then picked my Bank cheque book and told my second wife by name Wosilat that I wanted to go to Abolo Community Bank Offa. As I was on my way I met Rashidat and Yemi both ‘F’ of Offa Polytechnic and I picked and dropped them at Owode Junction. As they were entering their school, I continue my journey to the Bank, at Ibolo Community bank I met I.D. who told me to come back by 2.00pm for the money I wanted to withdraw. From the Bank I went to my brother’s house by name Ganiyu Lasisi near Queen’s Inn Hotel at Taiwo road Offa. It was there that one Isah Kalam came and informed us that there was serious fight at the Site and as we were there discussing that we saw ALGON vehicle and the Inspector Crime and Messeko said the DPO Offa wanted to see us and we followed him it was at the station that the police said I have killed person and I said no I did not kill any person as alleged against me by the complainant. The complainant were suspecting me and the others just because of the land dispute between the Asalofa and Balogun families.”
This is what the 1st respondent repeated when he testified on his own behalf (pages 68 – 70 of the Record of Appeal). DWs 1 & 2 testified in favour of the 1st respondent and confirmed what he said on his alibi.
PW 7 who was a police investigator stated in respect of the 1st respondent as follows:
“I can remember an officer of Ibolo Community bank made statement to us in the course of our investigation in respect of the 1st accused. The Manager confirmed he saw 1st accused that morning but cannot say precisely the time.”
The 2nd respondent stated that he was in his house together with two younger brothers of his whose names he had given to the police. He said 1st respondent came from Ibolo Community Bank and joined them in the house.
The 3rd respondent told the police that on that day, i.e. 1/4/2003, he was at Ganiyu Lasisi (2nd respondent’s) house.
The 4th respondent stated in his statement and evidence that he went to his friends house for a naming ceremony. He gave that friends name to the police.
The 5th and 6th respondents also gave their own version of their alibi.
The result of the investigation conducted by the police on the alibi put up by the respondents shows in the main, that the alibi was well founded. PW 7 for instance, stated:
“I went to all the places where they said they were to establish their alibi… I remember that the 3rd accused said one Rabiu Bricklayer came to wake him up that day. The accused mentioned many people in his statement and I interviewed those that were available. All the people the (he) (sic) mentioned we went in (a but) to their houses and interviewed them, some orally and some written. Those that are in writing are filed at the back of the case diary…. The people we interviewed confirmed to us that they saw the accused at the time the accused told us they were with those people.”
PW 8, Sgt. with the State CID, Homicide Section, llorin, stated on the alibi as follows:
“The accused made alibi statement and myself and the team led the accused to the scene of the crime. We investigated the alibi and found them to be untrue and since the complainants say these are the people who did the act, we have no choice then to charge them to court.”
Answering questions put to him at cross-examination, PW 8 stated:
“1st accused statement he told me he was in the Bank. He told me one Mustapha was with him till about 7.40am. We went to Mustapha’s house but did not meet him, we met his brother a Polytechnic student. He said he thereafter went to a Polytechnic lecturer to collect rent and we went to his house. We did not meet him too, we met his brother. I cant remember what we did about Sarafa Babalola that he mentioned. We went to the Bank but our team leader with the 1st accused went in, I didn’t know what they discussed inside with Bank Manager and the team leader did not tell me. I cannot say whether the alibi was true or false. It is our team leader who can say that.
On the 4th accused, we went to where he said she(he) attended a naming ceremony, the woman who gave birth could not talk to us, she was just crying but the husband said the 4th accused was there at the naming ceremony but we did not believe him.
On the statement of the 6th accused. I confirmed that 6th accused works with NEPA at Offa. We did not see the Osamene he said he visited when he closed at 6.00am on his way home. We went there but did not meet the man. My team leader went with him to Mrs. Adeowoye that he mentioned, so I don’t know what their finding is.
On 2nd accused statement he said she(he) was at home throughout, we went to his house and his family members said he was in till the time the police came to arrest him.”
That has been the position of the investigation.
PW 7 confirmed the veracity of the alibi raised. PW 8 said they found the alibi to be untrue. That in itself is contradictory. It is strong enough to create doubt in the mind of the learned trial judge. That apart, on the balance of probability, which is the standard required in defence of alibi, it is clear that sufficient, credible evidence was led by the accused persons to establish their claim on alibi. It is a surprise as to what factors dissuaded the learned trial judge so much so that he found the defence of alibi not sustainable. In any event, this is a criminal trial. The burden of proof of the crime alleged against the respondents, i.e. proof beyond reasonable doubt never shifts. It remains on the prosecution until satisfactorily discharged. I have no cause to doubt or disturb the finding of the lower court on the defence of ALIBI raised by the respondents. I uphold it.
Now, assuming that I am wrong in my consideration of the defence of alibi raised by the respondents which favoured them and by that token, the court below, ought to, as well, be wrong having reached the same conclusion on the defence of alibi, then has the prosecution discharged the burden placed on it by the law?
Issue 1 is on non-calling of two independent witnesses by the prosecution. The submission of learned counsel for the appellant is that it was wrong of the learned Justice(s) of the Court of Appeal to hold that failure of the prosecution to call two witnesses was enough to create a doubt on the mind of the learned trial judge and that he ought to have discharged and acquitted the respondents. The case of Manshep Namsoh v. The State (1993) 5 NWLR (Pt.128) 132, relied by the court below was grossly inapposite. Learned counsel stated the law that the prosecution is not bound to call any and every witness who were present at the Locus Criminis. It is only to call witness who would give relevant evidence in proof of its case. He cited the case of Iziren v. The State (1995) 9 NWLR (Pt.420) 385 at page 390.
The submission of learned counsel for the respondents is that there was no independent evidence adduced by the prosecution to prove this case. It is obvious from the statements made by PW2, PW3 and PW4 to the police and their evidence in court that apart from PWs 2, 3 and 4, who were members of the deceased’s family, there was the presence of a machine operator and a photographer at the scene of the crime. None of these two, who could be regarded as independent eye-witnesses, was called to testify and there is no evidence on record as to why they were not so called by the prosecution. Learned counsel submitted further that PW3 in his statement to the police and evidence in court stated that it was workers at Olayani Block Industry that helped him get a taxi that took him to the General Hospital. PW 7 an investigating police officer gave evidence to the effect that he went to the block Industry near the scene but cannot remember taking any statement from the people there. All the above, argued learned counsel for the respondents, show that the prosecution had kept away vital witnesses whose evidence would have been unfavourable to the prosecution. He cited in support, the cases of Opeyemi v. The State (1985) 2 NWLR (Pt.5) 101; Ahmed v. The State (1998) 7 SCNJ 60.
The general law pertaining to calling of witnesses to testify in favour of a party in a criminal trial, especially the prosecution, is that it is not the requirement of the law that the prosecution must call all conceivable witnesses. The duty on the prosecution as placed by section 138 of the Evidence Act (Cap 112, LFN, 1990) is to call witnesses to establish their case beyond reasonable doubt. See: Oluwatoba v. The State (1985) 1 NSCC 306; Adamu v. State (1991) 4 NWLR (Pt.187) 530; Amuneke v. State (1992) 6 NWLR (Pt.217) 338. However, in the discharge of that burden, it is the duty of the prosecution to see that it places before the trial court all available relevant evidence. This may not mean that a whole host of witnesses must be called upon the same point, but it does mean that if there is a vital point in issue and there is one witness whose evidence would settle it one way or the other, that witness ought to be called. See: R. v. Kuree (1941) 7 WACA 175. Infact in the case of R. v. Harris (1927) 2 K. B. 587, Lord Hewart C. J. had observed that the prosecution was bound to call “all the material witnesses before the court, even though they give inconsistent account.” See further: Okonkwo v. Police (1953) 20 NLR165;
At the court below, there is a finding on the failure of the prosecution to call some independent witnesses. Below is what that court said:
“Learned counsel for the appellants submitted that the prosecution should have called independent witnesses who from the evidence of the prosecution witnesses were supposed to be at the scene of the incident, namely the machine operator and the photographer. I cannot agree more with the learned counsel on this point. Though prosecution is not bound to call a particular witness to establish its case, in view of the enmity between the two families as I stated elsewhere in this judgment, the photographer and the machine operator had become material witnesses and failure to call them ought to have created doubt in the mind of the learned trial judge as to the guilt of the Appellants. I am also of the view that the failure to call the two witnesses has contaminated the entire case of the prosecution in respect of the other Appellants.”
But, the trial court on the other hand, after correctly stating the general principles of the law pertaining to calling of several or multiple witnesses to establish a particular point in issue, concluded in the following words:
“So in my view without calling the machine operator, Yinusa Alabi and the photographer, there is sufficient credible evidence that fixed these accused person[s] at the scene of crime at the material time.”
Of what significance would the evidence of the machine operator (Yinusa Alabi) and the photographer, be, had they been called to testify? To answer this question without mincing words, the record of appeal is the best guide. It is from the record that 1 see where the evidence of PW2 gives us an insight of how and where the machine operator featured. PW2 stated as follows:
“On 31/3/03 I was in my shop and I saw a boy with a policeman he said he was asking for Rafiu Balogun and Mukaila Balogun the deceaseds. I asked him what was the matter and he said they came to sieze the machine they were using to cut down tress(sic) at Lamudi. I told him this is a matter they can settle amicably instead of getting the police involved. When they did not see the two people they were looking for I volunteered to help them look for their siezed machine. When we saw it I gave it to
the policeman. They were about to leave when Rufai (deceased) came and he followed them to the police station.
After a while, Rafiu came back and said the police have settled the matter for them. That he was asked to release the siezed machine to them and they were also told not to go and cut the trees again and they promised not to go there again.
On 1/4/03 I have just finished saying my morning prayer and decided to go to where its alledged(sic) that they cut some trees because my own farm is also there. I called Mukaila Balogun to carry me to the place on his motor cycle. When we got there we met them again cutting the trees with that machine. We asked why they were cutting the tree after the police had told them not to cut them again. The machine operator then said it was the boy we met with him that came to him early in this morning that the problem has been resolved and they can now cut the trees. We stopped him and told him to carry his machine and follow us to our compound. When we got home we invited a photographer so that we can go and take the photograph of the trees he had fallen down. I called on Murtala Balogun and he also came along on his motorcycle. We were about to go when Raifu Balogun the (deceased) came to open his shop. He asked what was the matter and I told him that the people went back to the farm to cut our trees again and that we were going to the scene to take the photograph. He decided to follow us and joined somebody on his motorcycle. On getting to the farm. We told the machine operator to stay by the fallen trees so as to take his photograph:
Suddenly people came from the bush and these accused also came out of the bush with shot (sic) guns. They were about 12 people that came out from the bush but those I can identify who I had known before are Ganiyu Lasisi, Kareem Shittu, Fatal Azeez, Rasheed Adesoye, Noah Adepoju and Issa Adesoye.”
On being cross-examined by the learned counsel for the respondents, PW2 said, among other things:
“The photographer and machine operator were at the scene. I don’t know the name of the machine operator, I was one of the people that invited the photographer to the scene but I don’t know his name. I don’t know the name of the person who employed the service of the machine operator but it is likely to be the woman these accused sold the land to. I don’t knows whether the machine operator and the photographer made statement to the police because I was not there….it was the machine operator and the photographer who first fled. They had run away before I did.”
Answering questions put to him by learned counsel for the respondents on the machine operator and the photographer, PW 3 stated:
“The Photographer and the machine operator were with us on the day of the incident. I don’t know whether they were short (sic) I heard no such report that they were shot. The police did not ask me anything about the photographer.”
Further, another witness, PW 7 in answer to cross-examination put to him by learned counsel for the respondents said the following in connection to the machine operator:
“In the course of my investigation I discovered there is a machine operator employed to cut trees it is true he was arrested and his statement was obtained. I cannot remember whether the machine operator said he did not witness any gun shot the statement of machine operator is supposed to be in the file. I cannot remember recording the statement of the machine operator, because I don’t speak Yoruba language.”
PW 8, told the trial court in cross-examination on the machine operator, the following:
“I remember a machine operator but I was not the one who recorded his statement. I cannot say what he said in his statement since I did not record his statement. It is true I had access to the case diary but I cannot go on and start reading the content. The team leader was always in possession of the case file.”
The team leader mentioned in the excerpt above from PW 8, refers to PW 6, Inspector Thomas Meseko, who surprisingly, throughout his evidence did not mention the machine operator. He also did not mention anything on the photographer mentioned variously by all the witnesses as stated in the excerpts above.
Now, page 21 of the Record of Appeal contains a statement credited to the machine (Engine) Operator, Mr. Yinusa Alabi. He volunteered a statement to an officer of the state CID, ilorin (province). This is what Mr. Alabi said (in part):
“I am a native of Ilorin. I did not go to school. It is engine operation that I have been doing at Igbosun Village via Offa. On 31/3/2003 at about 0700hrs one Madam whom I did not know her name hired me to go and cut some trees at Adeleke road with one of her son and as we were cutting those trees, we saw some people who identified themselves as Balogun Family and they dragged us to Offa Police Station and they settle the matter for us at the police station and we all departed. Even my machine/engine that was siezed was returned back to me at the police station.
On 1/4/2003 I went to the Madam to collect my balance she then told me to go and cut the remaining one cashew tree that remained on that land. And as I cut down the tree around 07.20hrs and as raised
my eye up I saw the Balogun Family member who said I should stop work cutting. They then said the boy that accompanied me should go and call his mother as the boy left they said I should follow them with my machine to their father by name Alhaji Dejo and the Baba said they should take me back and snapped me with the machine on the said land and after, they have snapped me Alhaji Dejo said I should go on my own way and that was how I left the place to our house and not quite long that our Magaji sent for me that my junior brother by name Saliu is being beaten and when I reached there they left my brother and I was arrested. I then asked them why they were arresting me and they told me that didn’t I heard what happened where I just worked that morning or didn’t I heard (sic) the sound of gun and I told them that I did not heard anything and they said I should take them to Madam’s house but we could not see the Madam but she later sent her son to the police station and there I was detained I did not know what happen at the site because I have left the place. This is all I have to say.”
It appears there was no statement recorded from the photographer. In any event, even the statement of the machine operator, as reproduced above, was never tendered in evidence as the machine operator was not called to testify. I entirely agree with the court below in its decision and the learned counsel for the respondents in his submission that in a capital offence such as the one for which the respondents were sentenced to death by hanging, the prosecution should have called independent witnesses who, from the evidence of the prosecution witnesses (as summarised above) were said to be at the scene of the incident, namely the machine operator and the photographer who played key roles in the matter. It is surprising how the prosecution sidelined independent witnesses who had a lot of say on the whole saga. Although the prosecution is not bound to call a particular witness in order to discharge the burden of proof placed on him by the law before securing conviction, yet the law is very emphatic that where there exists a vital point in issue and there are witnesses whose evidence would settle that issue one way or the other, these witnesses ought to be called.
This court stated the law, per Adio, JSC (of blessed memory), in the case of State v. Nnolim (1994) 5 NWLR (Pt.345) 394 at 406 C – D, that:
“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.”
See further: Omogodo v. The State (1981) 5 SC 5; Onah v. The State (1985) 3 NWLR (Pt.12) 236.
For whatever reason the machine operator (whose statement was already had on record) and the photographer, were not called to testify in this case, that failure, in my view is fatal to the prosecution’s case. The machine operator and the photographer were said to be present at the scene of the crime. They saw, they heard and they had the experience of whatever transpired there. They would have told a better, objective and unprejudiced account of what actually transpired at Locus Criminis. No one who comes across the facts of this case would imagine the two vital eye witnesses to be dropped from the prosecutions witnesses. Their evidence would have been more independent and objective.
Jimoh A Mumini, DPP, Kwara State Ministry of Justice,
Ilorin, with him Toyin Pinhero for Appellant.
Charles E. Duke for Respondents.
Cases referred to in the Judgment
Abimbola v. Abatan (2001) 4 SCNJ 73 (2001) 5 SCM, 1
Adamu v. State (1991) 4 NWLR (Pt.187) 530
Adebayo v. Igbodale (1996) 5 NWLR (Pt.450) 567
Adedeji v. The State  1 All N.L.R. p. 75
Adekunle v. State (1986) 5 NWLR (Pt.123) 505
Adele v. The State (1995) 2 NWLR (Pt.277) 269
Adeyeye & ors. v. The State (1968) NMLR 48
Ahmed v State (2001) 18 NWLR (Part 746) 622
Ahmed v. The State (1998) 7 SCNJ 60
Akinkumi v. The State (1987) 3 SCNJ 30
Akpan Ikono & anor. v. The State (1973) 5 S.C. 231
Akpan v. The State (2001) 7 SCNQR 235, (2001) 11 SCM, 66
Alani v. State (1993) 7 NWLR (Pt.303) 112
Alarape v. The State (2001) 2 SCNJ 162, (2001) 3 SCM, 1
Amuneke v. State (1992) 6 NWLR (Pt.217) 338
Anehia & Anor v. The State (1982) NSCC 85
Arebamen v. State (1972) 4SC.35
Balogun v A.G. Ogun State (2002) 6 N.W.L.R. (Part 763) 512
Bello v. Favose & Ors (1999) 7 SCNJ 286
Benmax v. Aristin Motor Co. Ltd. (1955) A.C 370
Bosim v. The State  2 N. W.L.R (Pt.8) P. 465
Bozin v. The State (1985) 7 SC 450
Chia & Ors v. The State (1996) 6 NWLR (Pt.455) 465
Chukwu v. The State (1996) 7 NWLR (Pt.463) 686
Dogo & Ors v. The State (2001) 1 SCNJ 315
Edet O. Ekpe v. The State (1994) 12 SCNJ. 131
Emeka v. State (1998) 7 NWLR (Pt.559) 556
F.R. v. Johnson (1961) 1 WLR 1478
Fatoyinbo v. A.g. Western Nigeria  W.N.L.R. 4
Fatoyinbo v. Williams J FSC 87
Gachi v. State (1965) 1 NMLR 333
Gana v. The State (1973) NMLR 52
Gira v. The State (1996) 4 NWLR (Pt.443) 375
Ibeh v. State (1997) 1 NWLR (Pt.484) 632
Idahosa v. The Queen (1965) NMLR 85
Iko v. The State (2001) 35 W. R. N. 1, (2001) 11 SCM, 112
Iweaku v. SCOA Nig. Ltd. (2000) 3 SCNJ 71
Iziren v. The State (1995) 9 NWLR (Pt.420) 385
James Ikhiane (1977) 6 S.C. 119 (9 122
Kalu v. The State (1988) 4 NWLR (Pt.90) 503
Mandilas & Karaberies Ltd. v. Inspector General of Police 3 FSC 20
Manshep Namsoh v. The State (1993) 5 NWLR (Pt.128) 132
Manship Namson v. The State (1993) 5 NWLR 128
Nasanmu v. The State (1974) All NLR, 193
Nwabueze v. State (1989) 4 N.W.L.R. (Part 86) 16
Nwaeze v. The State (1996) 2 NWLR (Pt.428) 11
Odili v. State (1977) 4 SC 1
Ogba v. The State (1992) 2 NWLR (Pt.222) 164
Okoduwa v. State (1988) 2 N.W.L.R. (Part 76) 333
Okonkwo v. Police (1953) 20 NLR 165
Okosi & Anor v. State (1989) 1 NWLR (Pt.100) 642
Oluwatoba v. The State (1985) 1 NSCC 306
Omini v. State (1999) 12 NWLR (Pt.630)
Omogodo v. The State (1981) 5 SC 5
Onafowokan & anor. v. The State (1986) 2 NWLR (Pt.23) 496
Onah v. The State (1985) 3 NWLR (Pt.12) 236
Onuchukwu v. State (1998) 4 NWLR (Pt.547) 576
Onuegbe v. Queen (1957) SCNLR 130
Onuha v. The State (1998) 5 NWLR (Pt.548) 135
Onuoha & Ors v. The State (1989) 2 NWLR (Pt.101) 23
Onyegbe v. The State (1995) 5 BCNJ 275
Opayemi v. The State (1985) 2 NWLR (Pt.5) 101
Oshor v. The (1990) 3 NWLR (Pt. 139) 480
Ozaki v The State (1990) 1 N.W.L.R. (Part 124) 92
Peter v. The State (1994) 5 NWLR (Pt.342) 45
Queen v. Obiase (1962) 1 ANLR (Pt.4) 151
R v. Genevirates (1936) 3 All E.R. 36
- v. Allygalle (1936) 2 All E.R. 116
- v. Eneme 7 WACA 134
- v. Essien 4 WACA 112 at 113
- v. Harris (1927) 2 K. B. 587
Rex v. George Kurce 7 WACA 178
Rex v. Modem & anor. 12 WACA 224
Salami v State (1988) 3 NWLR (Part 85) 670
Samuel Omobo v. Commissioner of Police (1965) 66) MNLR 42
State v. Nnolim (1994) 5 NWLR (Pt.345) 394
State v. Ozaki (1986) 5 NWLR (Pt.40) 258
The State v. Musa Danjuma (1997) 5 SCNJ. 126
The State v. Obinsa & on. (1965) NMLR 172
Udoebre & Ors v. The State (2001) 6 SCNJ 54, (2001) 8 SCM, 127
Ukwunnenyi v. State (1989) 7 SC (Pt.1) 64
Umani v. The State (1988) 2 S.C. (Pt.1) 88
Wambai & anor. v. Kano N.A. (1965) NMLR, 15
Woolmington v. DPP (1935) A. C. 462
Yanor v. The State (1965) N.M.L.R 337