Babaji Yaro Vs The State (1972)

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ADEMOLA, C.J.N. 

The appellant who was tried for murder in the High Court at Ikeja, by a judge and jury, was convicted on the 6th April, 1971, and sentenced to death. From that judgement he has now appealed.

The deceased, one Alhaji Umoru Takarda, was a kola nut trader living at Ifo (half way between Abeokuta and Lagos) and trading between Ifo and Agege. It would appear that Alhaji Umoru Tarkarda had left kola nut for sale with one Lawani Yaro Kano at Agege. The Alhaji (deceased) came to collect the money and on the 18th July, 1969, having collected a sum of 695 pounds from his friend Lawani Yaro Kano at Agege, left for Iro that night about 10 p.m. On the way to Ifo he had to pass through a few military posts. At Alakuko village, a few miles from Agege, the deceased, who was riding on the pillion of a motor bicycle, was searched by two army guards on duty. The motor cyclist and the deceased, who was carrying money in a cement bag, were handed to the guard commander who happened to be on the spot at the time. It was usual to hand over a man carrying money to the commander for questioning.

The accused (appellant) was the commander. The money consisted mainly of currency notes which the appellant took out and put back in the bag.

He (appellant) then said he would take the deceased to the commanding officer at Iju Water Works which meant going back in Agege direction and about five miles east of Agege. He then put the deceased on his motor bicycle and drove back towards Agege Iju direction. The deceased was never seen alive again. Next morning he was found dead in the bush with gun shot wounds. One round was on the right hand side of the hip; another was on the left side of the neck opposite the third ring of the windpipe and shattering the windpipe. The third gunshot wound was around the navel on the left side penetrating the abdomen with injuries to the intestines and mesentries. There was bleeding in the abdominal cavity and the clothing was soaked with blood. The specialist pathologists, Nasirudeen Olaseni Akinlade (6th prosecution witness), who performed the post mortem, was of the opinion that the deceased had been shot three times at close range and the injuries were from gun shots fired simultaneously from an automatic weapon fired from the front of the deceased at close range.

The body of the deceased was discovered in the bush by the 2nd and the 9th prosecution witnesses. Both of them are servicemen. The 2nd witness Lt Corp. Gabriel Ejenbi was the solider who handed the deceased and the man who carried him on motor bicycle to the appellant on the night of the 18th July. The 9th prosecution witness, John Udo, was a soldier on duty at Alakuko village on the night of the 18th July. He testified to the fact that the appellant came to him whilst on duty carrying a man wearing a long blue gown whom he introduced as his friend, on his Mobylette. He said he was escorting his friend (deceased) and left his motorbike there with him. He was in uniform and carried his automatic rifle. He left on foot with the friend (deceased). Shortly after this, witness said he heard a gun shot in the direction of Abule Tuntun village where the two of them went. He was the only soldier on guard then and he did nothing about it. Next day, the 9th prosecution witness said he saw the appellant about 7 a.m. in army uniform which he changed on the spot to mufti. He said he complained to the appellant that he had no relief and had worked an extra hour. The appellant said he was going to Sango and would get a relief for him. He left and later the relief came.. The 9th prosecution witness then went to Sango himself where the 2nd prosecution witness who is a friend of his joined him and they went out together in a car.

On the bush path as they were going they saw the body of a man. He was dead. He (9th witness for the prosecution) examined the dead body and discovered it was the body of the man the appellant had introduced to him the night before as his friend. Both of them proceeded to Iju and made a report. Meanwhile the appellant had disappeared. He was later found in his home town in Potiskum. He was arrested and brought back to Lagos.

The appellant made a statement to the police. In his statement the appellant said when he was on patrol along the bush path, he met two men.

When he challenged them, one of them holding a bow and arrow shot at him but missed. He took cover and fired his rifle killing one of the men on the spot. The other ran away. He was confused. Next morning he told his wife to pack up and they both left Lagos for his home in Potiskum.

At the trial, the appellant gave evidence in his own defence. He denied the statement (exhibit B) attributed to him. He denied the material parts of the evidence of the soldiers under him. He pleaded alibi and said he was at the material time on leave at Potiskum.

The learned trial judge in his direction to the jury pointed out that the whole case hinged on the evidence of the 2nd and the 9th witnesses for the prosecution. He then continued to say, inter alia, that the prosecution had proved certain points which he enumerated. They were six in all.

Before us, counsel for the appellant had submitted that it is a serious misdirection to the jury that certain facts had been proved; that this matter should have been left to the jury to say whether they believed these facts or not.

It was also argued that the judge did not direct the jury on the question of alibi nor did the prosecution disprove the defence of alibi. On this point we are unable to agree with counsel for the appellant that the judge gave no direction on the alibi put up by the appellant. It is clear from the summing-up that the learned judge directed the mind of the jury to the alibi and even went so far as to tell the jury that in case they disbelieved his alibi, that did not establish the guilt of the appellant. Also, we are satisfied that from the preponderous evidence given by the witnesses for the prosecution who were with the appellant on 18th July, 1969, or who issued a rifle to him, the prosecution had no need to call evidence or rebuttal to disprove the alibi set up after the prosecution had closed its case and which was set up for the first time by the appellant when giving evidence in his own defence.

We now come back however to the first point raised, namely whether the six points which the learned judge said had been proved must have affected the mind of the jury adversely. In our consideration of this important matter, we find it necessary to state what the learned judge said in his address to the jury. He said as follows:

“On the whole, the following points have been proved by the prosecution:

1. That Alhaji umoru Tarkarda is dead. His corpse was identified by Alhaji Wade to the specialist pathologist who performed post-mortem on him.
2. That on the 18th of July, 1969, he set out from Agege to Ifo with money on him.
3. That on the morning of the 19th of September, 1969 his corpse was found. (September here must be a mistake for July).
4. That the accused was the guard commander at the military post at Alakuko and Ijoko roads at the material time.
5. That the deceased Alhaji Umoru Tarkarda died as a result of gun shot wounds inflicted upon him by an automatic weapon.
6. That immediately after the incident, the accused left his post and was later arrested in Northern Region.”

The question which has come to our mind is, if any of these points is taken by itself, or all of them are taken together, and believed by the jury, do they point to the appellant as the perpetrator of the crime with which he was charged We can hardly say so. But before assessing the prejudice that the acceptance of these facts might have caused and whether it had affected the substantial justice of the trial, we must look at the nature and effect of the other evidence before the judge and jury or that there was no other evidence to our mind that could have caused any doubt in the mind of the jury about the circumstances of suspicion pointing to the appellant.

We cannot say that we are satisfied that the misdirection to the jury alleged was in any way prejudicial to the appellant. Viewing the case as a whole, we do not consider that the misdirection alleged amounted to a miscarriage of justice, and applying the test used in the Privy Council case of Teper v. The Queen [1952] A. C. 480 at p. 492; [1952] 2 All E.R. 447, it was said:

“The test is whether on a fair consideration of the whole proceedings, the Board must hold that there is a probability that the improper admission of hearsay evidence turned the scale against the appellant. ”

Following the other Privy Council case of Chan Kau v. The Queen [1955] A. C. 206 at p. 214, where for the words “improper admission of hearsay evidence” in Teper v. The Queen (supra) the words “These misdirections” were substituted, we must emphatically say that the misdirection alleged has not turned the scale against the appellant.

In the event we must dismiss the appeal before us, and the conviction of the appellant is affirmed.

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Other Citation: (1972) LCN/1534(SC)