Samuel Theophilus V. The State (1996)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C. 

The appellant, Samuel Theophilus, formerly a police driver attached to the Force Headquarters, the Nigeria Police, Lagos was arraigned before A.O. Silva, J. sitting at the High Court of Lagos State holden at the Lagos Judicial Division on a one-count information for the murder of one Hassan Ali on the 13th day of December, 1983 contrary to Section 319(1) of the Criminal Code, Cap. 31, Laws of Lagos State, 1973.

The facts of the case which appear not to be in dispute are that on 13th December, 1983 the appellant who was a Sergeant in the Nigeria Police Force and employed as a driver attached to the Force Headquarters, Nigeria Police Force, Moloney, Lagos went to Ajeniya Street, Obalende, Lagos in company of his friend, one Sergeant Isa Makurdi to drink beer at a beer parlour.

As the appellant and his friend sat down and were drinking, three persons came and went to where Hassan Ali, the deceased was sitting and engaged in a quarrel with him over payment of some money the deceased owed them. It was then alleged that the appellant and the deceased fought and that during the encounter, the appellant drew a knife from his pocket and stabbed the deceased who later died as a result at the General Hospital, Lagos.

Seven witnesses in all were called by the prosecution, two of whom (P.W.4 – one Hausa Ntasiri and PW 7 – one Saliu Yusuf) gave eye-witness accounts of what transpired at the scene of crime on the fateful day. At the close of the case for the prosecution, the defence made a no-case submission which was peremptorily overruled.

The appellant who had, on arrest made a statement to the police, gave evidence alone on oath in his defence denying either stabbing the deceased or bearing responsibility for the act which resulted in the deceased’s death. It was claimed that there was general confusion at the beer parlour and as a result the appellant ran towards Dodan Barracks to report the incident but was pursued by two persons he later identified as P.W. 4 and P.W. 7. These two persons, it was stated, were indeed two of the three persons that quarrelled and fought with the deceased; were arrested along with him (appellant) by soldiers on guard duty at Dodan Barracks Quarters Guard; detained at the military cell until the following day (14/12/83) and after the three of them that were detained together were taken to the Onikan Police Station by the soldiers, the police commenced investigation which culminated in the appellant alone being charged for the offence of murder.

The learned trial Judge in a considered judgment convicted and sentenced the appellant to death on 15th December, 1989.

The appellant being dissatisfied with the said judgment appealed to the Court of Appeal, Lagos Division which dismissed his appeal. The appellant being aggrieved with that decision, has further appealed to this court on five original and later with leave four additional grounds of appeal, numbered 6 to 9.

The appellant subsequently filed a brief of argument which, on 10th of October, 1995 (the date the case was fixed for hearing) was served on the respondent.

The motion filed at the instance of the respondent for enlargement of time within which to file its brief and to deem same as duly filed and served dated 18th September, 1995 being rendered superfluous, was withdrawn by the Honourable Attorney-General for the state and it was accordingly struck out. With both appellant’s and respondent’s briefs being before us and the appeal therefore ripe for hearing, the appeal proceeded there and then to hearing.

The appellant submitted four issues for our determination. As the respondent also submitted four issues which I consider to be subsumed in the appellant’s. I will set out and adopt those of the appellant for my consideration of this appeal albeit that they are, in my view, inelegantly formulated, as follows:-

1. Whether the Court of Appeal erred in law when it held that:-

“As to the materiality of the contradictions, I am of the view that the learned Judge was correct in the view he held that they were not material contradictions. Apart from the decision as to general credibility of witnesses, whether evidence is material or not depends on the issues in the case. In this case the issue is whether it was the appellant who had stabbed the deceased.”

2. Whether the Court of Appeal erred in law in holding that the learned trial Judge adequately considered the defence of the appellant.
3. Whether the Court of Appeal erred in law when, after stating the observation of the learned trial Judge that:-

“According to the accused’s defence it was only Sgt. Isa Makurdi who eventually got to the scene of the incident with him. Thereafter, there is nothing said about any part taken by Sgt. Makurdi in the events that happened at the scene. The prosecution has the discretion to call evidence which they consider enough to prove their case. I do not see that their failure to call Sgt. Makurdi would affect their case. I am satisfied that the Police carried out proper and sufficient investigation into the incident.”

It stated that:-