Alfred Onyemena & Anor V. The State (1974)

LawGlobal-Hub Lead Judgment Report

S. SOWEMIMO, J.S.C. 

The appellants were convicted on the 22nd of December 1971, on a charge of murder after a trial by jury and sentenced to death by Kazeem, J., at the High Court, Ikeja, in the Lagos State. Their appeal against conviction was allowed on the 4th of October, 1973.At the hearing of their appeal, Mr. A. O. Ejiwunmi, learned D.P.P for the Lagos State informed the court that he could not support the verdict of the jury on two grounds:-

(1)   there was no sufficient evidence to support the charge in view of the many inconsistences and discrepancies in the evidence of prosecution witnesses; and

(2)   the identification parade was to say the least not properly conducted, because the appellants were wearing the same dresses  they had on when they were arrested by the Police at the instance of the 1st prosecution witness. The 1st, 2nd and 3rd prosecution witnesses were able to point them out at the time of their arrest by these same dresses.

The case for the prosecution was that, on the material date, which is 21st April, 1970, the appellants were alleged to have entered a bakery at 28 Olumokun Street, Amukoko Village, Ajegunle, at about 3 a.m. There were four people in the bakery at the time and these are the 1st, 2nd and 3rd prosecution witnesses and one Aremu Mufu now deceased. Whilst there it is alleged that the second appellant entered the bakery armed with a knife. He was followed almost immediately by the 1st appellant who was alleged to be in possession of what was described as a shot-gun. The witnesses gave evidence of the dresses worn by the appellants when they entered the bakery, but their descriptions varied in material particulars. There were also inconsistences in the version of what took place that morning when the appellants entered the bakery. They agreed on one point, however, and that was that the 2nd appellant on entering the bakery ordered the three prosecution witnesses and the deceased to put up their hands. According to the 1st prosecution witness, they obeyed the order but they started to shout for one Corporal Awudulaii, who was described as a soldier living in the same compound as the bakery. The appellants took fright at the shoutings and ran out of the bakery. On getting outside the appellants were alleged to have closed certain window shutters. The witnesses all agreed that they then heard a gun-shot fire and noticed that Mufu fell down there shouting that he had been shot. No evidence was led directly or otherwise as to who fired the fatal shot. He later died from his wound. The 1st prosecution witness said that he ran out to see from where the gun-shot fire had come and noticed the two appellants running away; they were never chased.

The 2nd prosecution witness, said that the 2nd appellant, after ordering them to put up their hands, gave order that the 1st appellant should take them out from the bakery one by one and have them shot dead. According to her, the 1st prosecution witness begged and asked the appellants to take away all the bread in the bakery as they had not made any sale that morning. In spite of what the 2nd prosecution witness said that the 2nd appellant ordered the 1st appellant to do, nothing seems to have happened and, when they started to shout in unison for Corporal Awudulaii, the 2nd appellant followed by the 1st appellant ran out. She agreed with her husband that the window of the bakery was shut and that later a gun-shot fire was heard. Unlike her husband, however, when this happened, she ran out and escaped through the fence surrounding the bakery, she did not see the appellants outside the bakery at all.

The next stage of the evidence was that the 1st prosecution witness alleged that, on the day following the incident, he saw some police officers with three men, and that he recognised the 2nd appellant as being one of the two persons who entered the bakery on the morning of the 21st of April, 1970. He further stated that he did not see the 1st appellant at any time after the incident until he was called upon to identify him as the Panti C.I.D.

The evidence of the police constable who arrested the two appellants at different times and in different places was inconsistent with the evidence given by the 1st prosecution witness; first, the 2nd appellant was arrested in a house at a praying meeting which he was conducting with a bible in his hand. The 1st appellant was then arrested along with two others in a room which they alleged they shared together, each carrying on his own trade. The two others were released because, according to the police, they were able to satisfy them that they were in fact carrying on the trades they alleged. As the 1st appellant was unable to give a satisfactory explanation, he was suspected to be one of those who must have visited the bakery on the morning of the 21st of April, 1970. There was no evidence whatsoever to show that the two appellants had knowledge of each other; as a matter of fact, the prosecution impliedly admitted the explanation that the two appellants were complete strangers to each other.

The appellants, in their defence, denied the allegations that they ever visited the bakery as alleged, or that they were ever armed at any time or that they fired any gun.

Curiously enough, throughout the whole case of the proseuction, no knife or shot-gun was ever alleged to have been found either in the possession of the appellants or anywhere else, nor was any knife or shot-gun tendered in evidence.

The learned trial judge, in a very careful summing up directed the jury on the evidence led both for the prosecution and the defence, said:-

“But you have also heard that all the 1st to 4th P.W. have consistently described the 2nd accused as wearing a pair of white shorts or pants and a shirt torn on the shoulders which was not buttoned; and except that he tied his head with a piece of cloth at the time 2nd accused came to their bakery, they said that he was wearing the same dress when he came to the bakery as the one he wore when he was arrested as shown in the photographs of the identification parade which you have already seen.

Apart from the inconsistencies in the descriptions, other inconsistencies and contradictions which were mentioned were:

(i)    that although, 2nd, 3rd and 4th PWs said that the accused persons were told when they came to the bakery that they had no money on them and that the accused person could eat as many loaves of bread as they liked, yet the 1st P.W. himself did not say that during his evidence before you;