OLUSEGUN v. STATE (2020)

OLUSEGUN v. STATE

(2020)LCN/15377(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Tuesday, September 29, 2020

CA/IB/180C/2016

RATIO

CRIMINAL PROCEEDING: RELEVANCE OF AN IDENTIFICATION PARADE

It is trite that an identification parade is not necessary where there exists other evidence that point conclusively to the identity of the perpetrator of the offence. See UGWU VS STATE (2020) LPELR-49375(SC); SEUN VS STATE (2019) 8 NWLR (PT. 1673) 144; ADEBAYO VS. STATE (2014) 12 NWLR (PT.1573) 171 and OKANLAWON VS. STATE (2015) 17 NWLR (PT. 1489) 445. PER FOLASADE AYODEJI OJO, J.C.A.

CRIMINAL PROCEEDING: BURDEN OF PROOF

In criminal prosecution, it is trite that the required standard is that of proof beyond reasonable doubt under Section 135 (1) of the Evidence Act 2011. If the commission of a crime by a party to any proceeding is directly in issue, either Civil or Criminal, it must be proved beyond reasonable doubt.
See the following cases:-ALO VS THE STATE (2015) 9 NWLR PART 1464 PAGE 238; ABIRIFON VS THE STATE (SUPRA)
However proof beyond reasonable doubt does not mean that the prosecution must prove its case beyond any shadow of doubt.
When the ingredients of any offence the accused is charged with has been proved, then the prosecution is said to have proved its case beyond reasonable doubt.
See the following cases:
– HASSAN VS STATE (2017) 5 NWLR PART 1557 PAGE 1.
– AJAYI VS THE STATE (2013) 9 NWLR PART 1360 PAGE 589.
– AYINDE VS. THE STATE (2019) LPELR – 47835 (SC).

The guilt of an accused person can be proved through any of the following methods:-
(i) Through Confessional Statement
(ii) Through circumstantial evidence, or
(iii) Through the testimony of eye witness/witnesses
See the following cases:-
– ITU VS. STATE (2016) 5 NWLR PART 1506 PAGE 443.
– ADEGBOYE VS. THE STATE (2017) 16 NWLR PART 1591 PAGE 248. PER JIMI OLUKAYODE BADA, J.C.A.

CRIMINAL LAW: INGREDIENTS OF THE OFFENCE OF MURDER

The Appellant in this case was convicted of murder. The ingredients of the offence of murder are as follows:-
(i) That the deceased died
(ii) That the death of the deceased resulted from the act of the Appellant
(iii) That it was the act or omission of the accused/appellant that caused the death of the deceased and that such act or omission was intentional or with the knowledge that death or grievous bodily harm was the probable result or consequence.
See- EDOHO VS. THE STATE (SUPRA).
The ingredients mentioned above must co-exist, if any of them is missing then the offence of murder cannot be said to have been proved, hence the prosecution cannot obtain conviction for murder against the accused person and the Court must exonerate him and acquit him of the offence of murder. PER JIMI OLUKAYODE BADA, J.C.A.

CRIMINAL PROCEEDING: PREROGATIVE OF THE PROSECUTION TO CALL WITNESSES

On this issue, I am of the view that there is no obligation on the prosecution to call a village of witnesses to prove its case. The best evidence is that of a complainant who is an eye witness and also a Victim.
In AFOLALU VS STATE (2010) 16 NWLR PART 1220 PAGE 584, it was held amongst others that:-
“The law does not impose any obligation on the prosecution to call a host of witnesses to prove its case, all it needs to do is to call enough material witnesses to prove its case and in doing so, it has a discretion in the matter. The right of the prosecution to call witnesses required to prove its case is not a mere privilege but a prerogative. It does not lie in the mouth of the defence to urge the prosecution to call a particular witness. Where the prosecution fails to call a particular witness there is nothing stopping the defence from calling the witness. See- OLAYINKA VS STATE (2007) 9 NWLR PART 1040 PAGE 561; IMHANRIA VS NIGERIAN ARMY (2007) 14 NWLR PART 1053 PAGE 76.”
See also the following cases:
– ESENE VS STATE (2017) 8 NWLR PART 1568 PAGE 337.
– ALI VS STATE (2015) 10 NWLR PART 1466 PAGE 1.
– SIMON VS STATE (2017) 8 NWLR PART 1566 PAGE 119. PER JIMI OLUKAYODE BADA, J.C.A.

CRIMINAL PROCEEDING: EFFECT OF DISCREPANCIES AND INCONSISTENCIES IN THE EVIDENCE OF PROSECUTION WITNESS

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Haruna Simon Tsammani Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

SIMON OLUSEGUN APPELANT(S)

And

THE STATE RESPONDENT(S)

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Ogun State High Court, Abeokuta Judicial Division in Charge Number – AB/33R/2012:- The State Vs Simon Olusegun delivered on the 31st day of March 2014, wherein the Appellant who was charged on a single count of Murder contrary to Section 316 and Punishable under Section 319 (1) of the Criminal Code Law, Laws of Ogun State of Nigeria, 2006 was convicted and sentenced to death by hanging.

Briefly the facts of the case according to the Prosecution are that on 12th day of February, 2011, the PW1 and the Appellant were in a burial party at Tekobo area of Abeokuta when argument ensued between the Appellant and the deceased. The PW1 i.e. Mr. Hazeez Owolabi Edunjobi and one Fashola Abiodun who were about 12 meters to the Appellant and the deceased approached the duo to mediate, PW1 saw the Appellant brought out a gun and shot the deceased. The deceased fell and the Appellant took to his heels while PW1 and some others present pursued the Appellant, caught up with him and brought him back to the scene of crime.

PW1 thereafter reported at the Police Station and the scene of crime was visited where the corpse of the deceased was recovered and the Appellant was arrested. The corpse was deposited at the mortuary and the Appellant, taken by Police.

The Appellant was charged before the Court. At the close of the Prosecution’s case the Appellant testified for himself, Counsel on both sides addressed the Court.

The learned trial Judge at the conclusion of the case delivered Judgment in which the Appellant was found guilty and sentenced to death by hanging.

The Appellant who was dissatisfied with his conviction appealed to this Court.

The learned Counsel for the Appellant formulated two issues for the determination of the Appeal. The said issues are reproduced as follows:-
“(1) whether having regard to the fact that, the lower Court-
(i) Failed to resolve the issue of the identity of the killer of the deceased.
(ii) Failed to give reason for disbelieving the Appellant’s defence, and
(iii) There was no credible evidence linking the gun Exhibit “A” to the Appellant,
-the lower Court was right to have held that the prosecution proved the offence of Murder against the Appellant beyond reasonable doubt (Distilled from Ground 2).
(2) Whether the learned trial Judge was right when he convicted the Appellant for the offence of murder having regard to the material contradictions in the evidence led by the prosecution witnesses. (Distilled from grounds 1 and 3)”.

The learned Counsel for the Respondent in her own case formulated a sole issue for the determination of the appeal. The said issue is reproduced as follows:-
“Whether the prosecution has proved the offence of murder against the Appellant beyond reasonable doubt”.

At the hearing of the appeal on 8th day of September, 2020, the learned Counsel for the Appellant stated that the appeal is against the Judgment of Ogun State High Court, Abeokuta delivered on 31/3/2014.

The original notice of appeal was filed on 6/5/2014. The said notice was amended and the Amended Notice of Appeal was filed on 19/12/2018 and deemed as properly filed on 6/2/2019. The second Amended Notice of Appeal was filed on 11/5/2019 and deemed as properly filed and served on 8/5/2019. The Record of Appeal was transmitted on 18/5/2016 and deemed as properly filed on 28/11/2017.

The Appellant’s Amended brief of argument was filed on 6/3/2020 and it was deemed as properly filed on 23/3/2020.

Learned Counsel for the Appellant adopted and relied on the said brief as his argument in urging that the appeal be allowed. He also referred to the Appellant’s Reply brief of argument filed on 29/5/2020 and deemed as properly filed on 8/9/2020, the said reply brief was also adopted and relied upon in urging that the appeal be allowed.

The learned Counsel for the Respondent also referred to the Respondent’s brief filed on 18/4/2019 but applied to withdraw it.

The said Respondent’s brief of argument filed on 18/4/2019 having been withdrawn is hereby struck out.

Learned Counsel now referred to the amended Respondent’s brief of argument filed on 23/3/2020. She adopted and relied on the said brief as her argument in urging that the appeal be dismissed, and that the reply brief be discountenanced.

I have perused the issues formulated for the determination of the appeal by Counsel for both parties and I am of the view that the sole issue formulated on behalf of the Respondent encompasses the two issues formulated for the determination of the appeal on behalf of the Appellant. I will therefore rely on the sole issue formulated for the determination of the appeal on behalf of the Respondent.

ISSUE FOR THE DETERMINATION OF THE APPEAL
“Whether the prosecution has proved the offence of murder against the Appellant beyond reasonable doubt.”

The learned Counsel for the Appellant referred to the evidence of PW1 to PW4 and he contended that the evidence of PW1 and PW2 are contradictory. He went further that PW2, PW3 and PW4 did not witness the murder, and as a result the issue of identity of the murderer was not established by the prosecution. He relied on the case of – ADEBIYI VS. THE STATE (2016) 8 NWLR PART 1515 PAGE 459 AT 474.

Learned Counsel for the Appellant urged that since the identity of the murderer was not established, that the Judgment of the trial Court which convicted and sentenced the Appellant be set aside. He went further in his submission that the testimony of PW2 with regard to the gun (Exhibit A) being the murder weapon amount to hearsay since he did not witness the Appellant when he used same to kill the deceased. Reference was also made to PW3 Mr. Ayodeji Olatunde, the Senior Consultant pathologist who claimed to have examined the body of the deceased when he admitted under cross examination that he did not recover any pellet from the deceased.

It was also contended on behalf of the Appellant that the identity of the gun Exhibit “A” and whether or not the Appellant fired same and thereby killed the deceased was not proved.

The case of- AKPOKU VS. ILOMBU (1998) 8 NWLR PART 561 PAGE 283 AT 290 was referred to.
It was submitted that the case against the Appellant was not proved beyond reasonable doubt.

The learned Counsel for the Appellant submitted that there is contradiction in the case presented by the prosecution. He relied on the case of – OKANLAWON VS. THE STATE (2012) LPELR- 9771 (CA), EMEKA VS. STATE (2014) LPELR (SC) 347/2011, APOSTLE PETER EKWEOZOR & OTHERS VS. THE REGISTERED TRUSTEES OF SAVIOURS APOSTOLIC CHURCH OF NIGERIA (2014) LPELR – 23572. FATUGA VS. AINA (2008) ALL FWLR PART 398 PAGE 394 AT 400.

It was contended on behalf of the Appellant that the evidence of PW1 and PW2 relied upon are full of contradictions, learned Counsel for the Appellant therefore urged that the conviction and sentence be set aside, discharge and acquit the Appellant.

In her response the learned Counsel for the Respondent submitted that prosecution in a criminal trial is required to prove his case against the Appellant beyond reasonable doubt.
She relied on the case of:-ABIRIFON VS. THE STATE (2013) 9 SCM PAGE 1 AT 5.

It was submitted further by Counsel for the Respondent that in a case of murder the prosecution must prove the guilt of the Appellant beyond reasonable doubt and show –
(i) That the deceased died
(ii) That the death of the deceased resulted from the act of the Appellant
(iii) That the said act of the Appellant was intentional. She relied on the case of – EDOHO VS. THE STATE (2010) 6 SCM PAGE 52 AT 56.

It was submitted that there is no doubt that the deceased Ayobami Adeniran is dead. She referred to the evidence of PW1 – the eye witness and PW3 who testified that the deceased died of gunshot. PW3 was the Medical Doctor who performed post mortem and stated that the cause of death was massive blood from firearm injury.

The PW5’s testimony was also referred to, as his vivid illustration of what he saw on the corpse of the deceased.

The learned Counsel for the Respondent submitted that the exhibits and testimonies of witnesses before the Court satisfied the burden of proof that the act of the Appellant caused the death of the deceased.
She relied on the case of:- UDOSEN VS. THE STATE (2007) 2 SCM PAGE 128 AT 130.

On the 3rd ingredient the learned Counsel for the Respondent submitted that the intention of the Appellant to kill the deceased can be inferred from the instrument used and in this case the gun used by the Appellant.
The following cases were relied upon.
– UDOSEN VS. THE STATE (SUPRA)
– NWOKEARU VS. STATE (2013) 9 SCM PAGE 124 AT 129.
– QUINN VS. LETHEM (1901) AC 491 AT 533.
– EDEN VS. STATE (1994) 8 NWLR PART 65 PAGE 719 AT 721.
– MICHAEL VS. STATE (2008) 10 SCM PAGE 83 AT 85.

It was also submitted on behalf of the Respondent that it is not all discrepancy, contradictions and or inconsistency in the evidence of prosecution witnesses that will affect the substance of a criminal case that has been proved with credible and unchallenged evidence.
She relied on the following cases:-MICHEAL EBEINWE VS. THE SATE (2011) 3 SCM PAGE 46 AT 47.
– NDUKWE VS. STATE (2009) 2 SCM PAGE 147 AT 150.

It was also submitted on behalf of the Respondent that the contradictions if any are not material to the case of the prosecution. The material things are that the deceased died, the act of the Appellant caused the death of the deceased and that the Appellant intended to cause the death of the deceased.

The learned Counsel for the Respondent urged this Court to hold that the prosecution proved the offence of murder against the Appellant beyond reasonable doubt.

She urged that this appeal be dismissed and uphold the decision of the trial Court.

The learned Counsel for the Appellant filed a reply brief of argument on 29/5/2020 which was deemed as properly filed and served on 8/9/2020.
The learned Counsel for the Appellant re-argued the appeal in Appellant’s reply brief of argument.
A reply brief is not meant to be a repetition of the arguments in the Appellant’s brief. It is not an opportunity to re-emphasize the arguments in the Appellant’s brief but on the contrary, a reply brief replies to the Respondent’s brief.
In this appeal since the Appellant’s reply brief did not deal with any new point from the Respondent’s brief I will therefore discountenance it.
See- DOGO VS STATE (2013) 10 NWLR PART 1361 PAGE 160.

RESOLUTION
The Appellant Simon Olusegun was charged before the trial Court on a single count charge of murder contrary to Section 316 and Punishable under Section 319 (1) of the Criminal Code Law of Ogun State of Nigeria 2006.
After the trial, he was found guilty of murder and sentenced to death by hanging.

In this appeal under consideration, the fact that the deceased (Ayobami Adeniran) died is not in issue or doubt. Exhibit “B” the post mortem report showed that the deceased is dead.

The PW3 gave evidence of how he carried out examination on the corpse of the deceased.
On the 2nd ingredient that the death of the deceased was caused by the Appellant,PW1 testified as follows:-
“PW1 – MR. Hazeez Owolabi Edunjobi sworn on Holy Bible and states in English
I live at rocky Villa, Surulere Campus, along UNAAB Road Abeokuta.
I am a Student of UNAAB Abeokuta. I study Physics.
I know the Accused person very well.
I know Ayobami Adeniran (deceased) very well.
I remember 12/02/11. On that day, I was at the final burial of one of my relatives at Tekobo area, Idi-Aba Abeokuta. At the end of the party, I had with me my mum, dad, siblings and friends at about 7.25 pm, we saw the deceased Ayobami. My friends that were present include Fashola Abiodun.
We saw Ayobami and the Accused person dragging themselves. I did not know what led to the dragging. We moved closer to mediate. As we got to about 20 meters from them I heard the Accused person, saying to the deceased.
“Today is your day. I have been running after.”
Thereafter I saw him bringing out a gun and pointed it at the deceased and fired a shot at the closest range. The deceased fell down immediately.
The Accused person took to his heels immediately. Heading to Lantoro High School area. He initially scared us away with the gun. We later pursued him i.e. about 12 of us ran after him. Fortunately myself and Fashola Abiodun caught up with him. He fell down and we held him. Everyone in vicinity were happy that we had got him and they started beating him. I pleaded that they should let him get to the police station. I then ran to the police station where I narrated to the police at Kemta Idi-Aba police station what happened.
The DPO came out, made some phone calls and three Patrol vehicles joined us along with that of Kemta Police station.
All this while the Accused person was at the crime scene as we had taken him back to the crime scene and had held him up.
The police came with us to the scene, one of the policemen was CPL, OyemadeAkinyemi. When we got to the scene the DPO ordered some officers to take him to the Kemta Idi-Aba Police station.
DPO told us to search for the Gun I over-head one of the policemen asking the DPO to look at the hand of the Accused person. That he had an injury on his head which must have been sustained while he was shooting at the deceased. We searched for the gun i.e. Policemen, myself and a friend of mine. One of the Policemen was Cpl-Oyemade Akinyemi.
We found the Gun around the Gutter about 60 meters away from the scene. I mean to say it was found on the Gutter.
We took the corpse to the police station and I made a statement. It was the police together with myself and my friend that took the corpse of the deceased Ayo to the police station and later to the hospital. He was rejected at the State hospital mortuary. We then took him to Aro Psychiatrist Hospital where we deposited the corpse. I made a statement to the police at Kemta. Fashola Abiodun is now in Jos.
We came together to Court about three times in the past.
I know Seidu Fasasi. He is a relative of the deceased we went together to the mortuary to deposit his corpse. My family later met with the family of the deceased consoling them,
CROSS EXAMINATION:
This incident occurred at about 7.25 pm on 12th February 2011 – a Saturday.
It occurred at Tekobo Junction around Idi-Aba. Along the road.
It was not under a canopy, but beside a canopy.
The Party was held at one closed Street (Close) in the area. From venue of the Party to the scene is about 15 meters.
As at 7.25 pm that day it was not totally dark. I said we were about to mediate when we saw them dragging.
Myself and Fashola were about 20 meters to them when we saw them dragging.
After the gun shot I moved around calling attention of people. People were under the canopy – i.e. about 20 meters away from the scene.
The accused person picked race (took to his heels) and we ran after him.
The Accused person was caught in between the crime scene at Tekobo Bakery. The distance is about 90-100 meters.
I am much familiar with the area because I attended Lantoro High School.
He was scaring people generally with the gun. Some people ran away while myself and about 12 friends ran after him.
He attempted to shoot at us while we were pursuing him.
There was lightening along the road we were pursuing him. We finally got him when he fell down. Still wearing same clothes bangle and chains, stripped white shirts rolled to his elbow. That was still the conditions we got him.
We beat him up and tied him up. After a while we left him. That was when I left to report to the police. I never removed his bangle from his hand. I saw no necklace on him at the time of apprehension.
All the time we tied him he was pleading that it was work of the devil.
He was caught at Tekobo junction.
The search started about 2 hours after the incident.
During the search, he had been taken away before search commenced. I was on a motorcycle with a generator and about returning the generator when I saw the fight/dragging.

The evidence of PW1 set out above showed that PW1 the eye witness gave a graphic details of how the Appellant killed the deceased (Ayobami Adeniran) by shooting him at close range.
The testimonies of PW2 and PW3 are also set out as follows:-
“PW2 – SGT OYEMADE AKINYEMI:
Sworn on Holy Bible and states in English Language. Force No. 354212.
I am attached to Kemta Idi-Aba police station. As at 12/02/11 I was at that staion.
I know the Accused person.
I know PW1.
On 12/02/11 I was at the office at Kemta Idi-Aba when PW1 and others brought the accused person to the station and reported a case of murder. Myself, DPO and complainants and witnesses visited the scene of crime at Tekobo where the corpse of one Ayobami Adeniran was then on the ground.
We Police Officers combed the area and a locally made pistol was found inside the gutter some few meters to the corpse at Tekobo.
Between scene and where the gun was found is only three meters.
The locally made pistol was registered as an Exhibit.
This is it.
Counsel seeks to tender.
MR. OLU-ALADE – objection.
COURT: Locally made pistol – Exhibit A.
The corpse was removed and deposited at psychiatrist hospital while Forms B and C were filled and given to the Pathologist – Dr. Olutunde for autopsy. He later gave me the Doctor’s report which I attached to the case file.
This is the said Doctor’s Report.
Counsel seeks to tender.
MR. ALADE – No objection.
COURT: Doctor’s reports of 16/02/11 Exhibit B.
The complainant and witnesses made statements and the Accused person made a statement under caution in English Language which he signed while I countersigned as the Recorder.
This is the statement made by the Accused person.
Counsel seeks to tender.
MR. OLU-ALADE – Objects.
Says Accused person says the contents are different from what he narrated.
Says it is not his statement.
Prays for a trial within trial.
Now withdraw his Application for trial within trial since voluntary is not in issue.
COURT – Statement dated 13/02/11 – Exhibit “C”.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Due to the aggressiveness of members of the public, the following day 13/02/11, the Accused person was transferred to State CID Abeokuta while on 14/02/11 the original case file was transferred to State CID for further investigation.
“PW3 Dr. Ayodeji Olutunde sworn on Holy Bible and states in English Language. I live at Federal Medical Center Quarters Idi-Aba Abeokuta. I work at the Federal Medical Center Idi-Aba Abeokuta. I have been working there for 6 years. I am Senior Consultant Pathologist. I examine dead bodies for cause of death and also examine tissues from living people for disease processes and also human fluids. As at 13/02/2011, I was working at Federal Medical Center Abeokuta but at the same time when there are cases that need post mortem examination, I am called upon to examine such. On that day, a body of a young man was deposited at the Neuropsychiatric hospital mortuary Abeokuta. When I was informed on 13/02/11, I went there on 16/02/11 to examine the body. I saw the body of one Ayobami Adeniran, a 26 years old man. He was embalmed and measured about 157 Cm in Length. He had a Dressing over the left side of the face and on opening the dressing, there was a huge punch – out –hole measuring about 14 cm by 8 cm by 6cm with associated loss of the left ear. In addition, he was severely pale. Those were my findings. At the end of the examination, I concluded that the young man died of massive blood loss from firearm injury. I was reliably informed he died on 12/02/11. He was embalmed at the time I saw the body. I put down my findings in writing and issued a Report to the I.P.O. This is the Report I issued.
Cross Examination:
I am a Senior Consultant Pathologist. I examined the body of Ayobami Adeniran. He was already embalmed. I did not participate in the embalmment process. I did not participate in the dressing I found on the body. I cannot say when those two processes took place – I was only informed by the mortuary Attendant. I did not retrieve any pellet at all from the body. I said he was severely pale i.e no blood. I know about gun shots very well. When a gun is aimed at a person and it is shot, what comes out is the pellets and cartridge. I made my findings from the circumstances in which I found the body and the nature of the wound – i.e it was due to gun shot. That type of wound can only result from gunshot wound. I was told the heart/wound had so much blood over the area hence they packed it in the manner I met it. That’s what I was told at the hospital. I found only the embalmment fluid in the body. No other chemical was found by me in the body which I examined. He died as a result of massive loss of blood.”

The testimony of PW3 brought out the fact that the deceased died of massive blood loss from firearm injury. He found that the deceased died due to gunshot.
I am of the view that the evidence of PW1 and PW3 were corroborated by the evidence of PW2 who saw the corpse of the deceased on the floor at the scene of crime and he deposited same at the mortuary. The PW3, who is a Medical Doctor, performed the post mortem on the deceased. He produced Exhibit “D” the Medical Report.
I am of the view that the testimonies of the prosecution witnesses and the Exhibits before the trial Court satisfies the burden of proof that the act of the Appellant caused the death of the deceased.
See – UDOSEN VS THE STATE(SUPRA)

On the 3rd ingredient of murder, that is, the intention of the Appellant to kill the deceased. It is trite law that in a criminal charge, intention can be inferred from the instrument used.
The fact that the Appellant shot the deceased at close range and killed him showed that he is presumed to have intended to kill the deceased. See the following cases:-
– SANI VS STATE (2018) 8 NWLR PART 1622 PAGE 412
– AFOLABI VS STATE (2016) 11 NWLR PART 1524 PAGE 497
– ISAH VS STATE (2018) 8 NWLR PART 1621 PAGE 346.
In order to determine whether an accused person really had the intention to kill, the law has set down certain items, amongst which are:-
(1) The nature of the weapon used.
(2) The part of the body brutalized by the lethal weapon
(3) The proximity of the victim to the lethal weapon used by accused person.
In this case the weapon used by the Appellant was a gun which has been classified as a firearm. See – MICHAEL VS STATE(SUPRA).

The evidence of PW1 set out earlier in this Judgment showed that the Appellant was in possession of a gun which he brought out of his pocket and shot the deceased at close range in the presence of PW1.
The evidence of PW1 is clear, direct and unequivocal and I am of the view that the Court can act on the evidence of a single witness if the witness is believed.
See – NKEBISI & ANOTHER VS THE STATE (2010) 3 SCM PAGE 170 AT 174.
– OBIDIKE VS STATE (2014) ALL FWLR PART 733 PAGE 1899.
– OKETAOLEGUN VS STATE (2015) 13 NWLR PART 1477 PAGE 538.
– ADAMU VS STATE (2017) 7 NWLR PART 1565 PAGE 459.

The learned Counsel for the Appellant contended that there are discrepancy, contradictions and or inconsistency in the evidence of the prosecution witnesses.

I am of the view that the contention of the learned Counsel for the Appellant is like making a mountain out of a mole hill.

It is trite that not all discrepancy, contradictions and or inconsistency in the evidence of prosecution witnesses will affect the substance of a criminal case that had been proved with credible and unchallenged evidence.
See the following cases:-
– ORISA VS STATE (2018) 11 NWLR PART 1631 PAGE 453.
– MICHAEL EBEINWE VS THE STATE (SUPRA).
– NDUKWE VS STATE (SUPRA).
– ABOKOKUYANRO VS STATE (2016) 9 NWLR PART 1517 PAGE 520.
-OKEREKE VS STATE (2016) 5 NWLR PART 1504 PAGE 69.
I am of the view that in order to succeed in upturning a decision on the ground of contradictions and or discrepancies, it must be relevant and be of great magnitude that it would cause miscarriage of Justice but not minor contradictions which did not affect the credibility of the witness.

In this case I am of the view, that there is no contradiction or discrepancies in the evidence of PW1 and PW2. The PW1 gave eye witness account of what happened on the day the deceased was shot by the Appellant with a gun at close range. PW2 stated what he saw and the activities he carried out in the course of investigating the crime.

It was also contended by Counsel for the Appellant that certain witnesses were not called by the prosecution.
On this issue, I am of the view that there is no obligation on the prosecution to call a village of witnesses to prove its case. The best evidence is that of a complainant who is an eye witness and also a Victim.
In AFOLALU VS STATE (2010) 16 NWLR PART 1220 PAGE 584, it was held amongst others that:-
“The law does not impose any obligation on the prosecution to call a host of witnesses to prove its case, all it needs to do is to call enough material witnesses to prove its case and in doing so, it has a discretion in the matter. The right of the prosecution to call witnesses required to prove its case is not a mere privilege but a prerogative. It does not lie in the mouth of the defence to urge the prosecution to call a particular witness. Where the prosecution fails to call a particular witness there is nothing stopping the defence from calling the witness. See- OLAYINKA VS STATE (2007) 9 NWLR PART 1040 PAGE 561; IMHANRIA VS NIGERIAN ARMY (2007) 14 NWLR PART 1053 PAGE 76.”
See also the following cases:
– ESENE VS STATE (2017) 8 NWLR PART 1568 PAGE 337.
– ALI VS STATE (2015) 10 NWLR PART 1466 PAGE 1.
– SIMON VS STATE (2017) 8 NWLR PART 1566 PAGE 119.
In this case the Appellant’s Counsel is of the view that the prosecution refused or neglected to call a certain people, it is my view that the law allows the Appellant to call them as his witnesses.

I am of the view that the contradictions if any are not material to the case of the prosecution.
The material evidence which is before the trial Court are that the deceased (Ayobami Adeniran) died. The act of the Appellant caused the death of the deceased and that the Appellant intended to cause the death of the deceased or cause grievous bodily harm by shooting the deceased with gun at close range.

The learned trial Judge was right when he relied on the evidence of the prosecution witnesses and Exhibits tendered before the Court in convicting the Appellant.

The prosecution on its part has proved the offence of murder against the Appellant beyond reasonable doubt.
Consequent upon the foregoing, this issue is resolved in favour of the Respondent and against the Appellant.
This appeal lacks merit and it is hereby dismissed.

The Judgment of the trial Court in Charge No: AB/33R/12 – The State Vs Simon Olusegun delivered on 31st March, 2014 wherein the Appellant was found guilty of Murder and sentenced to death by hanging is hereby affirmed.
Appeal Dismissed.

HARUNA SIMON TSAMMANI, J.C.A.: I had the benefit of reading before now, the draft of the judgment delivered by my learned brother, Jimi Olukayode Bada, JCA.
My learned brother has comprehensively and with brevity considered and resolved the appropriate issues that called for determination in this appeal. The facts and the law show beyond reasonable doubt that the Appellant shot the deceased (Abayonsi Adeniran) with a gun thereby causing his death. I do not express any contrary view with those expressed by my learned brother in the lead judgment.

On the whole, I agree that the appeal is devoid of any merit It is accordingly dismissed.

FOLASADE AYODEJI OJO, J.C.A.: I had the opportunity to read before now the draft of the lead Judgment just delivered by my learned brother, JIMI OLUKAYODE BADA, JCA. I entirely agree with the reasoning and the conclusion reached therein.

In the Appellant’s brief of argument filed in this appeal. Learned Counsel to the Appellant argued that the identity of the murderer was not established and urged to so hold. The law is well settled that the evidence of an eye witness is one of the best evidence to successfully sustain the conviction of an accused person. An on the spot narration of what an eye witness saw at the scene of the alleged offence is sufficient to sustain conviction.

See SHURUMO VS STATE (2010) 19 NWLR (PT. 1226) 73; AKINMOJU VS STATE (2000) 6 NWLR (PT. 662) 608 and AGU VS STATE (2017) 10 NWLR (PT. 1573) 171.

In the instant appeal, PW1 gave an eye witness account of how the deceased, Ayobami Adeniran was murdered. He said he saw the Appellant pull out a gun and that the deceased close range. He gave further evidence on the attempt made by the Appellant to escape from the scene of crime. He was one at those who pursued the Appellant and got him arrested. There was therefore no need for any further identification parade as the appellant would wish we hold. The identity of the Appellant was not in doubt. The eye witness account at P.W.1 was positive and direct. He had the opportunity to see the Appellant at very close quarters. His evidence is that it was not yet dark at the time of the incident. It is trite that an identification parade is not necessary where there exists other evidence that point conclusively to the identity of the perpetrator of the offence. See UGWU VS STATE (2020) LPELR-49375(SC); SEUN VS STATE (2019) 8 NWLR (PT. 1673) 144; ADEBAYO VS. STATE (2014) 12 NWLR (PT.1573) 171 and OKANLAWON VS. STATE (2015) 17 NWLR (PT. 1489) 445. The evidence PW1 points conclusively to the identity of the Appellant as the perpetrator of the offence.

It is for the above and other reasons elucidated in the lead judgment that I also find no merit in this appeal and dismiss same. I abide by the consequential Order in the lead Judgment.

Appearances:

COLLINS OGBONNA For Appellant(s)

MRS. F. E. BOLARINWA – ADEBOWALE Chief State Counsel Ogun State Ministry of Justice, Abeokuta For Respondent(s)