Clement Oguonzee Vs The State (1998)
LAWGLOBAL HUB Lead Judgment Report
A.I. IGUH, JSC.
The appellant, Clement Oguonzee, an Assistant Superintendent of Police, was arraigned before the High Court of Justice. Edo State, holden at Benin City, charged with the offence of murder punishable under Section 319(1) of the Criminal Code, Cap. 48. Vol. 11 Laws of Bendel State of Nigeria, 1976 applicable in Edo State. The particulars of the offence charged are as follows:-
“Clement Oguonzee (m) on or about the 18th August, 1994 at Oluku Junction, along Benin Lagos Expressway within the Benin Judicial Division shot and murdered one Remigious Mekoba.”
The accused pleaded not guilty to the charge and the prosecution called four witnesses at the trial. The accused also testified in his own defence but called no witnesses.
The substance of the charge as presented by the prosecution was that on the 18th day of August, 1994 the deceased, one Remigious Mekoba, and P.W. 4 his junior brother, were travelling from Lagos to Awomoma in Imo State in a Volvo car driven by the deceased. According to P.W. 4, the principal witness for the prosecution, at a road check-point between Ugbowo and Oluku near Benin City, along the Benin-Lagos Road, a team of policemen signalled to them to stop. This was at about 9 am in the morning. As they were on speed, the deceased did not see the policemen in time. The deceased after he had slightly driven past the policemen, stopped his car, engaged his reverse gear and drove backwards to the checkpoint. In answer to question by one of the policemen as to why he failed to stop, the deceased replied that he had eventually stopped.
At that stage, the appellant who was heading the team of policemen walked to their car, flung the driver’s door open. dragged the deceased out of the car and slapped him. When the deceased received the slap, he held his jaw and laid his head in pains on the bonnet of their car. The appellant, next asked the deceased a question which P.W. 4 did not hear as P.W.4 was still inside the car. As the deceased was about to answer the question, the appellant drew backwards to a distance of about seven feet, pointed his gun at the deceased and shot him on the left side of his chest. The deceased immediately held his left chest with hath hands and shouted saying “Vincent, I am dying, I am dying, I am dying.” At that stage, P.W. 4 rushed out of the car to assist his injured brother but they both fell on the ground. When P.W.4 got up, the appellant faced him by pointing the same gun at him but one of the policemen in the team stopped him by shouting “No, no, no” whereupon the appellant abandoned his aim.
P.W. 4 and about four policemen at the scene conveyed the deceased into a waiting police pick-up van but after about three minutes, transferred him into the Volvo car. One of the policemen in company of some of his mates drove the deceased with P.W. 4 to the University Teaching Hospital, Benin City where the deceased, on arrival, was certified dead. It was at this stage that the policemen melted away and P.W. 4 had to travel back to Lagos to report the incident.
The evidence of P.W. 2, the Medical Doctor attached to the Department of Pathology in the University of Benin Teaching Hospital who performed the postmortem examination on the body of the deceased deserves attention. According to the witness, there was a penetrating wound measuring 0.7 cm on the nipple of the left chest. There was a corresponding exit on the left upper back of the chest about 6cm from the midline, measuring 1cm indiameter. He gave detailed evidence of various internal injuries sustained by the deceased and came to the conclusion that he died of cardiac tamponade with corresponding cardio respiratory failure from a penetrating high velocity missile injury affecting the heart, the lungs and the bones. These were consistent with gun shot injury. He went on:-
“No other missile other than a gun could have caused the wounds I found on the corpse……….. The gun would have been fired within the range of 7 and 10 feet from the deceased……………. ”
Earlier on in his evidence, the witness had stressed thus:-
“The gun would have been shot between 7 to 10 feet from the person of the deceased and the injury could not have been self inflicted. The holes and wounds were caused by one and the same shot even though the wounds differed in diameter due to resisting forces of penetration of the bullet. These was no close encounter between the deceased and the gunman because there were no other external marks of injury and there were no vital reactions around the entrance wound of the bullet to suggest any struggle. The heart is on the left side of the chest. The shot wounded the heart and the lungs:”
The case for the appellant was that he and his men were on anti-crime patrol when he received an information that robbers were operating along the Benin- Lagos Road.
They proceeded to the scene of crime where he ordered his men to stop and search all private cars. Presently, a Volvo car drove in from the Lagos direction. The deceased was its driver. He drove past the checkpoint but eventually stopped. A policeman then went to him and demanded for the particulars of his vehicle. The appellant stated that there was argument between the deceased and the policeman as a result of which he personally went to the deceased and asked for his ignition key and particulars. The deceased refused and the appellant insisted on taking the ignition key from him. The deceased at this stage gripped the appellant’s pistol. The appellant claimed that he struggled to recover possession of his pistol from the deceased. It was in this exercise that the pistol exploded and the bullet hit the deceased accidentally. He claimed that the incident was one of accidental discharge.
At the conclusion of hearing, the learned trial Judge, Edokpayi, J., after an exhaustive review of the evidence on the 1st day of March, 1996 found the appellant guilty as charged and accordingly sentenced him to death.
Dissatisfied with this decision of the trial court, the appellant lodged an appeal against his conviction and sentence to the Court of Appeal, Benin City Division. The Court of Appeal in a unanimous judgment dismissed the appeal on the 11th day of July, 1997 and affirmed the decision of the learned trial Judge. It is against this judgment of the court below that the appellant has further appealed to this court.
Both the appellant and the respondent filed and exchanged their respective written briefs of argument. In the appellant’s brief, the under-mentioned three issues were formulated for resolution, namely:-
Issue 1
Whether the holding by the learned Justices of the Appeal Court that ‘it is my candid view that the learned trial Judge’s findings in this case can just not be faulted, and I do not intend to interfere with them’ was perverse having regard to the evidence before the trial court.
Issue II
Whether the learned trial Judge and the learned Justices of the Court of Appeal were right in holding that the evidence of P.W. 2 and P.W. 4 corroborated each other.
Issue II
Whether the learned Justices of the Court of Appeal were right by holding that a case of accidental discharge was not made out by the appellant.
The respondent, for its own part, also identified three issues in its brief of argument for the determination of this court. These issues are as follows:-
“Issues for determination
“1. Whether the defence of accident avails the appellant, having regard to the evidence before the court?
- Whether the evidence of P.W.2, the Medical Doctor, corroborated the evidence of P.W.4, deceased’s brother?
- Whether P.W.2, the Medical Doctor was competent to give expert opinion on the distance between the deceased and his assailant.”
I have examined the two sets of issues formulated by the parties in their briefs of argument for the determination of this court and I find the questions identified on behalf of the appellant more consistent with the complaints raised in his grounds of appeal. Accordingly, I shall in this judgment, confine myself to the issues raised in the appellant’s brief of argument.
At the hearing of the appeal before us on the 30th day of January, 1998, learned counsel for the appellant, Chief E.L. Akpofure, adopted the appellant’s brief of argument and preferred oral argument in elucidation of the submissions therein contained. The main contention of learned counsel on issue 1 is that the Court of Appeal was in error by failing to disturb the findings of fact of the learned trial Judge when these findings were perverse, having regard to the evidence before the court.
He argued, in particular, that it was beyond the competence of P.W.2, the Medical Doctor who conducted the post mortem examination on the body of the deceased, to testify that the nature of the injury he saw on the deceased’s left chest did not reveal a close encounter between the deceased and the gunman. He submitted that in all probability, the deceased must have been backing his assailant at the time of the incident. It was therefore practically impossible for the deceased to have been shot through the left chest as suggested by P.W.2 and P.W. 4. He attacked P.W.4 as a tainted witness, being the brother of the deceased, and contended that his evidence required corroboration to ground the appellant’s conviction.
On issues 2 and 3, learned counsel argued that both courts below were in error by holding that the death of the deceased was not as a result of accidental discharge of the appellant’s pistol. It was finally submitted that failure to call the policemen who were with the appellant at the time of the incident was fatal to the case of the prosecution by virtue of the provision of Section 149(d) of the Evidence Act. He urged this court to allow this appeal, set aside the conviction and sentence of both courts below against the appellant and to enter a verdict of acquittal and discharge in favour of the appellant.
Learned counsel for the respondent, Mrs. D. Ojo, DPP., Edo State in her reply similarly adopted the respondent’s brief and presented oral submissions in amplification thereof. On issue 1 learned counsel stressed that the question of credibility of witnesses was a matter solely within the province of the trial court who saw and observed them. She submitted that it was not the duty of appellate courts to reverse the findings of fact of a trial court unless they were shown to be perverse. She maintained that none of those findings in the present case was shown to be perverse. She urged the court not to interfere with the concurrent findings of facts of both the trial court and the Court of Appeal in this case. On issues 2 and 3, learned counsel submitted that the defence of accidental discharge did not avail the appellant in view of the overwhelming evidence by the prosecution to the contrary which was accepted by both courts below. She submitted that there was no doubt whatever from the findings of fact of the learned trial Judge as affirmed by the court below that the shooting of the deceased by the appellant was willed, deliberate and intentional. The appellant’s defence of accidental discharge was carefully considered by both courts below and rejected on very clear evidence before the court. Learned counsel submitted that the testimony of P.W.2 was amply corroborated by that of P.W.4 in all material particulars, especially as to the cause of death and the approximate distance from where the pistol was fired, having regard to the nature and extent of the injuries. She stressed that there was no duty on the prosecution to call any police witness, a ballistics expert or tender the appellant’s pistol with which the offence was committed unless the prosecution were unable to establish its case without them. This was not the position in the present case. She urged the court to dismiss this appeal.
I will now turn to issue I. This poses the question whether the decision of the Court of Appeal to the effect that the findings of fact of the trial court in this case could not be faulted or interfered with was not perverse, having regard to the evidence before the court. In this regard, it is, perhaps, desirable to summarise briefly the applicable principles of law that govern the assessment and credibility of the evidence of witnesses and the making of findings of facts on such evidence.
It is a basic principle of law that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a court of trial which saw, heard and assessed the witnesses while they testified before it. The trial court has the exclusive jurisdiction on matters of appraising evidence and ascribing probative value to the evidence of witnesses whom it had the opportunity of seeing, hearing and observing while in the witness box. Where a court of trial unquestionably evaluates the evidence and justifiably appraises the facts and arrives at a conclusion on the credible evidence, the appellate court will not interfere with such findings of fact nor is it the business of such appellate court to substitute its own views of the facts for those of the trial court. What the appellate court ought to do is to scrutinise the record carefully and find out whether there is evidence on which the trial court could have acted. Once there is such evidence on record from which the trial court arrived at its findings of fact, the appellate court cannot interfere with such findings. See: Mufutau Bakare v. The State (1987) 1 NWLR (Pt.52) 579; Ogundiyan v. The State (1991) 3 NWLR (Pt. 181) 519; Akpagbue v. Ogu (1976) 6 SC. 63; Odofin v. Ayoola (1984) 11 SC. 72; Amadi v. Nwosu (1992) 5 NWLR (Pt. 241) 273 at 280 etc. I will now examine the findings of fact of the learned trial Judge as affirmed by the court below which findings are now under attack.
In this regard the learned trial Judge after a most careful evaluation of the evidence found as follows:-
“From the evidence of the prosecution and the defence, it is established beyond reasonable doubt that Remigous Mekoba died on the 18th of August. 1994 along the Benin/Lagos Express Road in Benin City and that he died of gunshot wounds. It is established that he did not die a natural death but that he died a violent death. It is also established that the missile which killed him came from the gun (pistol) which the accused person took to the road on official assignment that day. The only difference between the case of the prosecution and that of the defence is that while the defence contends that the gun exploded and hit the deceased accidentally as the accused person and the deceased were struggling for the possession of the pistol, the prosecution’s case is that the accused person who had opened the front door of the deceased’s car and dragged the deceased out of the car and slapped him, moved backwards from the deceased at whom he aimed with his pistol and fired and thereby intentionally killed him.”
A little later in his judgment, the learned trial Judge went on:-
“From the evidence of the 2nd and 4th prosecution witnesses which I believe. I hold that the gun (pistol) which the accused person held on l8th April 1994 did not accidentally explode or discharge. I do not believe the accused person when he testified that the pistol exploded while the deceased and himself were struggling for the possession of the pistol. I believe the 2nd (sic) prosecution witness when he testified that the accused person moved backwards for a distance of about seven feet before he took his aim with the pistol and fired at the deceased…….. There is no evidence that the deceased or any one in his car on that day was armed. Even if l was to believe that the deceased had any scuffle with the accused, which fact and piece of evidence I do not believe, the accused will not be entitled, either under the defence of self defence or provocation, to use a deadly weapon like the pistol in gunning down the deceased who was not shown to be armed or shown to be on the run as a criminal.
Even if the deceased has attacked the accused person with bear hands or has a scuffle with the accused person, which evidence of attack or scuffle I do not believe, the mode of resentment as instanced by the weapon used, did not bear reasonable proportion to the alleged provocation…… .
From the evidence of the 4th prosecution witness which I believe, and which evidence as to distance and cause of death is corroborated by the evidence of the 2nd prosecution witness, the shooting of the deceased was premeditated and therefore not sudden or accidental. The accused person has not testified that he was in any danger of his life or that he had to shoot the deceased down to save his (accused’s) life. The defence of self defence therefore does not avail him. I have said earlier that I do not believe that the deceased gripped the pistol of the accused person or that the pistol accidentally fired or accidentally exploded during any struggle for the possession or repossession of the pistol. I do not believe that the deceased attached the accused person.”
He continued: I believe the 4th prosecution witness when he testified that when himself and his brother fell down and he got up, the accused person faced him and pointed the pistol at him and that one of the policemen around had to shout no, no, no, before the accused person lowered his aim and kept the pistol. The immediate subsequent behaviour of the accused person, after shooting of the deceased, in facing the 4th prosecution witness to whom he pointed the pistol as the 4th prosecution witness got up from the ground further points to the fact that the shooting of the deceased to death was intentional. There is no evidence upon which I can hold in favour of the accused person that he was insane or mentally deluded or that he had uncontrollable impulse at the time of the killing of the deceased.”
He concluded: “I accept the evidence adduced by the prosecution in support of this case as true and reject the evidence of accidental discharge put up by the accused person as untrue. On the whole, I come to the conclusion that the prosecution has proved its case of murder against the accused person beyond reasonable doubt. Consequently, I find the accused person guilty of the murder of Remigious Mekoba as charged.”
Before I turn to the treatment of the above findings of fact by the Court of Appeal, I think I need re-emphasize that where facts in issue, whether in a criminal or civil proceedings are accepted or believed by the trial court and no question of misdirection arises, an appellate court, will not ordinarily interfere with such findings of fact made by a trial Judge which are supported by evidence simply because there is some other evidence in contradiction of the finding or that if the same facts were before the appellate court, it would not have come to the same decision as the trial Judge. See Ike v. Ugboaja (1993) 6 NWLR (Pt.301) 539;Odofin v. Ayoola, supra; Ogbero Egri v. Uperi (1973) 1 NMLR 22; Ogundulu & Ors. v. Phillips & Ors. (1973) NMLR 267 etc. This, as already stated, is because findings of fact made by a trial court are matters peculiarly within its exclusive jurisdiction and they are presumed to be correct unless and until an appellant satisfactorily proves that they are wrong.
Such trial courts saw the witnesses and heard them testify and unless the findings are perverse or unsupported by credible evidence, the Court of Appeal will not interfere with them. See: Adelumola v. The State (1988) 1 NWLR (Pt.73) 683. An appellate court may however interfere with such findings in circumstances such as where the trial court did not make a proper use of the opportunity of seeing and hearing the witnesses at the trial or where it drew wrong conclusions from accepted credible evidence or took an erroneous view of the evidence adduced before it or its findings of fact are perverse in the sense that they did not flow from the evidence accepted by it. See: Okpiri v. Jonah (1961) 1 SCNLR 174; (1961) 1 All NLR 102 at 104-5; Maja v. Stocco (1968) 1 All NLR 141 at 149; Woluchem v. Gudi (1981) 5 SC 291 at 295-6 and 326-9.
Now, dealing with the evidence of the prosecution witnesses in the present case and the findings of the learned trial Judge thereon, the Court of Appeal per the leading judgment of Ige, JCA., with which Akpabio and Nsofor, JJCA., agreed stated thus:-
“The 4th P.W.’s evidence is that of all eye-witness and the learned trial Judge had the opportunity of watching his demeanour in the witness box and he believed him. The appellant made a heavy weather of the fact that P.W.4 didn’t include in his statement Exhibit ‘B’ to the police – the question of the accused stepping backwards for 7-10 feet before firing the pistol at the deceased. The appellant referred to it as a contradiction in the evidence of the prosecution.
I seem to agree with the view of the learned trial Judge that the issue of 7 feet distance before shooting is only an enlargement of P.W.’s previous statement to the police and not a contradiction. What is important in this case is who fired the gun that caused the wounds found on the deceased by 2nd P.W. and the wounds that resulted in the death of the deceased”
Again, on the evidence of the said P.W. 4 and the Medical Doctor, P.W.2, the Court of Appeal after an extensive review of their testimony observed:-
“These 2 witnesses gave evidence before the trial Judge. He believed their evidence The 4th P.W. was consistent, categorical and forthright in his evidence and in my view the learned trial Judge was right in accepting his testimony as true. In Exhibit ‘B’ he did not mince words about the action of the appellant. He said and I quote the relevant portion of his statement:
‘……….As my brother was about to answer the question, one of them fired him on the chest and my brother called me two times before he fell down I can identify the policeman that fired my brother. My brother did not struggle with any policeman.’
When giving his evidence in court this witness identified the appellant as the person who slapped and shot his brother with a gun in the chest.
From the day he made statement to the police, this witness knew the person who fired the shot that killed the deceased and the circumstances of the firing. In Exhibit ‘B’ he was sure and very certain that the deceased did not struggle with any policeman. In court he refuted the suggestion by the defence counsel that the deceased engaged the policeman in a scuffle. He denied that it was during the scuffle that the gun exploded and hit his brother.
This credible evidence coupled with the nature of injuries found on the deceased during a post-mortem examination in my view has reinforced the case of the prosecution and rendered the story of the accused/appellant that his gun accidentally exploded on that day as incredible and untenable. The learned trial Judge was right in rejecting this evidence of the accused/appellant that the pistol exploded while the deceased and himself were struggling for the possession of the pistol.”
It went on:-
“It is my candid view that the learned trial Judge’s findings in this case can just not be faulted, and I do not intend to interfere with them”
It concluded:-
“In this case the prosecution led credible evidence that the deceased Remigious Mekoba has died. They have also satisfied the court that the death of the deceased Remigious Mekoba has resulted from the gun shot by the accused/appellant.
The learned trial Judge has considered all the defences of provocation, self defence, insanity and negligence through accident. He has rightly come to the conclusion that the prosecution has proved its case of murder against the accused beyond all reasonable doubt.
It is my candid view that the learned trial Judge considered meticulously a case of possible negligence in favour of the appellant in order to reduce the charge of murder to manslaughter. He could not but reject the accused’s defence of accidental discharge, amidst glaring evidence of intentional shoaling of the deceased by the appellant. A person is taken to intend the natural and probable consequences of his acts. In this case the accused shot the deceased on 18th day of August along Benin/Lagos Express Road and from the facts of the case the only possible inference which the court can draw and has drawn is that he intended to kill the deceased. This he did and the learned trial Judge has rightly convicted the appellant on a charge of murder and sentenced him to death accordingly.”
It is clear from the above findings of the Court of Appeal that this is a clear case of concurrent findings of fact by both the trial court and the Court of Appeal. In this regard, the law is well settled that where there are concurrent findings of fact by both the trial court and the Court of Appeal, again whether in a civil or criminal proceedings, then unless those findings are:-
(1) found to be perverse; or
(2) not supported by the evidence; or
(3) reached as a result of a wrong approach to a wrong application of principle of substantive law or procedure;
this court, even if disposed to come to a different conclusion upon the printed evidence, cannot do so. See Enang v. Adu (1981) 11-12 SC. 25 at 42; Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718; Igwego v. Ezeugo (1992) 6 NWLR (Pt. 249) 561 etc. Accordingly, this court will not disturb concurrent findings of fact of both the High Court and the Court of Appeal unless a substantial error apparent on the face of the record of proceedings is shown or where an appellant establishes a special circumstance to warrant the reversal of such concurrent findings. See: too Sobakin v. The State (1981) 5 SC 75; Ige v. Olunloyo (1984) 1 SCNLR 158; Eholor v. Osayande (1992) 6 NWLR (Pt.249) 524 at 548.
I have closely examined the concurrent findings of fact by both the trial court as confirmed by the Court of Appeal in this case and it is clear to me that they are not only overwhelmingly supported by the evidence, they are neither perverse nor arrived at as a result of any wrong approach to the evidence or as a result of a wrong application of any principle of substantive law or procedure. No special circumstance has been established to warrant the reversal of any of them by this court. In the result, I find myself unable to interfere with them. Issue 1 is accordingly resolved against the appellant.
Issue 2 poses the question whether both courts below were right in holding that the evidence of P.W. 2 and P.W. 4 in any way corroborated each other. This issue is closely interrelated with issue 3 which deals with whether both courts below were right by holding that a case of accidental discharge was not made out by the appellant. In my view, these two issues can he considered together and I will now proceed to do so.
On the concurrent findings of both courts below which, as I have already observed, are fully supported by the evidence on record and have not been faulted in any manner, it is crystal clear that the medical evidence of P.W. 2 amply corroborated the evidence of P.W. 4 on, at least, two vital areas. These are in respect of the cause of death and the approximate range from which the gun was fired. In the first place, both witnesses were ad idem on the cause of the deceased’s death. This, on their evidence, was as a result of bullet injuries fired from a gun which hit and devastated the deceased’s left chest and from which injuries he died moments later. In the second place it was the evidence of P.W. 4 that the appellant, after slapping the deceased, paced backwards to a distance of “about 7 feet”, pointed this pistol at the deceased and shot him through the left chest. I find it of great importance to re-emphasize that this vital piece of evidence of P.W. 4 was specifically accepted and believed by the learned trial Judge who had the singular opportunity of watching and observing the witness as he testified before the court. The same finding of the trial court was affirmed by the Court of Appeal thus raising its status to that of a concurrent finding of fact by both the trial court and the Court of Appeal. On this finding alone, which has not been faulted in any way, it cannot be contended seriously that a case of deliberate and intentional shooting of the deceased by the appellant was not established by the prosecution or that the appellant made out a case of accidental discharge on the accepted evidence before the court.
There is one more vital point on this issue of whether or not the prosecution established a case of deliberate and intentional shooting against the appellant. This revolves on yet another material evidence of P.W. 4 to the effect that as soon as the appellant shot the deceased, he, P.W. 4, rushed out from their car and held his wounded brother. Both the deceased and P.W. 4 then fell down but P.W. 4 got up and the appellant next faced him, pointed the same pistol at him but one of the policemen around had to shout “no, no, no” before the appellant lowered his aim and kept the pistol. This vital piece of evidence was accepted and believed by both courts below. I agree entirely that this immediate subsequent behaviour of the appellant in facing P.W. 4 with the same pistol immediately after he had shot down the deceased pointed to the fact that the shooting of the deceased was intentional and not accidental.
Finally, on the same issue, is the fact that the learned trial Judge who saw and heard the witnesses after a thorough evaluation of the evidence found that the deceased never gripped the appellant’s pistol, that there was no struggle whatever between the deceased and the appellant for the possession or repossession of the pistol and that the pistol did not accidentally explode as claimed by the appellant. These findings were affirmed by the Court of Appeal and so long as there was not established any miscarriage of justice or a violation of some principles of law or procedure, this court finds itself unable to interfere with them. In my view, therefore, issue 3 must be resolved against the appellant.
Turning once more to the accepted evidence of P.W. 4 to the effect that the appellant paced backwards to a distance of about 7 feet before he shot the deceased dead, there is additionally, the evidence of the medical practitioner, P.W. 2 to the effect that:-
“The range of the gun shot to the deceased, in my opinion, was between 7 to 10 feet……………… if two persons were struggling for possession of the gun and it exploded, it cannot inflict the type of injuries I found on the corpse of the deceased and which I have just described to the court. If the gunman fired the gun about 2 feet from the deceased, it cannot cause the type of wounds I have described and which I found on the corpse in this case. If the gun is fired one foot from the victim, the injury will no longer be the same as I have described.”
Clearly, in certain respects already mentioned, the evidence of P.W. 2 was corroborative of the testimony of P.W. 4. Both the trial court and the Court of Appeal were therefore right when they held that the evidence of P.W. 2 corroborated that of P.W. 4 in some material particulars. But learned counsel for the appellant did submit that P.W. 2, not being an eye witness to the shooting incident, was not competent to give evidence relating to the distance or range from where the gun was fired.
With the greatest respect to the learned counsel, it ought to be stressed that at no time during the cross-examination of P.W. 2 was it suggested to him that he was not competent to testify on the issue. If he was so questioned, the issue of his knowledge on the subject would have come into focus. Without doubt, P.W. 2 testified before the court as an expert witness. He is a medical doctor attached to the Department of Pathology of the University of Benin Teaching Hospital and it is a matter of common knowledge that to qualify as a medical doctor, one must undergo a study in forensic medicine, the extent and scope of which the witness would have clarified were his competence challenged while he testified in the witness box.
A close study of the evidence of P.W.2 reveals that the expert opinion he gave on the issue of distance or range from where the shot was fired was based entirely on deductions from the nature and extent of the injuries he found on the deceased in the course of his post-mortem examination. In my view, a medical doctor does not need to be an eye witness or a ballistics expert to be able to give an expert opinion on the issue of the range or distance from which a particular missile, whether gunshot or otherwise, was launched, having regard to the resultant injuries to the victim, particularly where, as in the present case, he gave factual basis for the opinion he arrived at. Indeed it does not seem to me that a ballistics expert would be of any use on the particular facts of the present case. This is because a ballistics expert is apparently not trained in human anatomy, pathology, forensic medicine or to relate the nature, extent or quantum of injuries to the human body to a particular weapon or weapons likely to be responsible for such injuries. He may also not be in a position to give an expert evidence as to the amount of force used in the commission of an assault and whether or not the resultant injuries could be self-inflicted or otherwise. These, in my opinion, are matters which concern medical doctors and not ballistics experts. I think both courts below were right in accepting the corroborative evidence of P.W. 2 to the effect that the gun which produced the injuries he saw on the body of the deceased would have been shot from about 7 to 10 feet from the person of the deceased and that the injuries could not have been self inflicted.
It must however be stressed that the evidence of P.W.4 on the issue of the range from which the fatal shot was fired clearly required no corroboration in law. The result is that the evidence of P.W. 4, an eye witness to the incident, if believed, as indeed it was, firmly resolved the issue. In such circumstance, the opinion evidence of P.W. 2 on the same point, even if it were to be inadmissible, and I do not so hold, became unnecessary and a surplusage. It seems to me plain on the evidence of P.W. 4 which both courts below accepted as true that it was a case of premeditated and intentional shooting of the deceased by the appellant that was established by the prosecution and that a case of accidental discharge was not made out by the appellant.
Learned counsel for the appellant next submitted that P.W. 4, was in fact a tainted or biased witness being the brother of the deceased. He submitted that his evidence therefore required corroboration. He also referred to Section 149(d) of the Evidence Act and contended that failure by the prosecution to call any of the policemen on duty with the appellant at all material times was fatal to its case. It was suggested that the prosecution ought to have called the said policemen to testify to ensure that its case was established beyond reasonable doubt.
The first point that must be made is that a court of law needs not take into account the number of witnesses for each side to a dispute as a relevant factor in deciding which side to succeed. What is primarily relevant is the quality of the evidence adduced before the court. In this regard, Section 179(1) of the Evidence Act provides as follows:-
“179(1) Except as provided in this section, no particular number of witnesses shall in any case be required for the proof of any fact.”
Accordingly, the general rule is that except in cases, whether civil or criminal, where the evidence of a witness by law needs to be corroborated by some other evidence, no particular number of witnesses is required for the proof of any fact in issue and a person may be convicted of an offence on the evidence on oath of a single adult witness where no corroboration is prescribed.
Secondly, it is a well established principle of law that it is not necessary for a person on whom the onus of proof lies, even in criminal cases, to call every available piece of evidence in order to discharge that burden. It is enough if evidence is tendered sufficient to discharge the onus which the law lays upon the prosecution. See Francis Odili v. The State (1977) 4 SC 1 or (1977) 11 NSCC 154 at 158 and Joshua Alonge v. I.G. of Police (1959) SCNLR 516; (1959) 4 FSC 203 or (1959) 1 NSCC 169. In the Francis Odili case, the appellant was convicted and sentenced to death. Following his arrest, the appellant was identified at an identification parade by one of the two Rev. Sisters they violently robbed with arms. At the trial, he pleaded alibi. The learned counsel contended inter alia that the evidence of identification was unreliable and that the prosecution failed to call two other eye witnesses to the incident. On appeal, this court per Alexander CJN, stated as follows:-
“Counsel’s last submission was that the 2 night guards should have been called as witnesses as they were present throughout………………..The tribunal, in its judgment, pointed out that the defence had an equal opportunity to call the night guards if they considered that the evidence of the night, guards would be favourable to them. The tribunal found no merit in this submission and we unhesitatingly agree. The prosecution is not required to call very available piece of evidence to prove its case. It is enough if sufficient evidence is called to discharge the onus of proof beyond reasonable doubt.” (italics supplied for emphasis)
Accordingly, in arriving at a conviction in criminal cases, the court is concerned with whether or not there is sufficient credible evidence of probative value and not the number of witnesses called on an issue. See: Commissioner of Police v. Daniel Kwashie (1953) 14 WACA 319. Where a single witness called by the prosecution is neither an accomplice nor a tainted witness, a court of law is entitled to convict mainly on his credible evidence where his testimony did not by law require corroboration. Once the court is satisfied with the cogency, high quality and credibility of the evidence of a witness and accepts it, conviction based on such evidence should not be interfered with unless such evidence by law requires corroboration. So, in the Daniel Kwashie case, the learned magistrate convicted the appellant on the evidence of one witness. On appeal to the High Court, the learned Judge found that although, corroboration was not required by law, a court was generally reluctant to convict on the evidence of a single witness and proceeded to allow the appeal. On further appeal to the West African Court of Appeal, the appellate judge was reversed and his decision was set aside on the ground that there was sufficient evidence before the learned magistrate on which he based his conviction. It was further held that since the learned magistrate believed the witness and there was no imputation that the sole witness was an accomplice or a tainted witness, it was an error to reverse his decision and the conviction was restored.
More recently in Oteki v. Attorney-General of Bendel State (1986) 2 NWLR (Pt. 24) 648 at 664 this court laid it down as follows:-
“I think the learned trial Judge applied the correct principles in determining whether or not to rely on the evidence of P.W.1 for the conviction of the appellant. It is now established that a court can convict upon the evidence of one witness without more, if the witness is not an accomplice in the commission of the offence, and his evidence is sufficiently probative of the offence with which the accused has been charged.”
See too Sunday Emiator v. The State (1975) 9-11 SC 107 at 112; Anthony Igbo v. The State (1975)9-11 SC 129 at I34: Joshua Alonge v. Inspector-General of Police (1959) SCNLR 516;(1959)4 FSC 203. It seems to me, therefore, well settled that there is no rule of law or practice which should make a court hesitate in convicting upon the evidence of one witness, in a case where no corroboration is prescribed by law and there is no suggestion that the witness is an accomplice, if the court is satisfied with the cogency and quality of the evidence given. See: Anthony Igbo v. The Stale supra and Christopher Arehia and Anor v. The State (1982) NSCC 85 at 91. See too Okonofua & Anor v. The State (1981) 6-7 SC 1 at 18 where this court per Bello, JSC., as he then was, dealing with the same subject put the matter thus:-
“the correct state of the law relating to the duty of the prosecution to call witnesses, whether their names appear on the back of the information or not, has been recently stated by this court in these terms:
‘The law imposes no obligation on the prosecution to call a host of witnesses. All the prosecution need do is to call enough material witnesses in order to prove its case; and in so doing, it has a discretion in the matter.”
See also Samuel Adaje v. The State (1979) 6-9 SC 18 at 28.
In the present case, the learned trial Judge thoroughly appraised and evaluated the evidence of all the witnesses who testified before him together with that of the appellant. At the end of this exercise, after he saw, heard and assessed them, he came to the conclusion that P.W. 4 was a witness of truth and believed him. This ought to dispose of the complaint on the failure of the prosecution to call further witnesses to repeal themselves. The learned trial Judge, however, further believed the testimony of P.W. 2 which in various areas corroborated the evidence of P.W. 4. No corroboration is prescribed by law in respect of the offence of murder for which the appellant stood trial. I think the prosecution, at the close of the evidence of P.W. 4 had the discretion and was perfectly entitled to rest its case on his testimony without calling further corroborative evidence.
Learned counsel for the appellant next sought refuge under section 149(d) of the Evidence Act. This is on the same issue of failure by the prosecution to call any of the policemen in the team led by the appellant on the date of the incident.
He submitted that the only possible presumption under Section 149(d) of the Evidence Act must be that those policemen if they had been called as witnesses would have testified against the prosecution.
Section 149(d) of the Evidence Act provides as follows:-
“149. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and in particular the court may presume:-
(d) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;
The first point that needs be emphasised is that the presumption under section 149(d) of the Evidence Act will only apply against whom it is sought that it should operate where that party has infact withheld the particular piece of evidence in issue and if he did not call any evidence on the point. It only applies when the party does not call any evidence on the issue in controversy and not because he fails to call a particular witness. See: Bello v. Kassim (1969) NSCC 228 at 233; Okunzua v. Amosu (1992) 6 NWLR (Pt. 248) 416 at 435. The section deals with the failure to call evidence on the issue in controversy and not because he fails to call a particular witness. See: Bello v. Kassim (1969) NSCC 228 at 233; Okunzua v. Amosu (1992) 6 NWLR (Pt. 248) 416 at 435. The section deals with the failure to call evidence and not the failure to call a particular witness as a party is not bound to call a particular witness if he thinks he can prove his case otherwise. See: Francis Odili v. The State (1977) 4 SC 1 at 8; Alonge v. Inspector-General of Police (1959) SCNLR 516; (1959) 4 FSC 203 etc. Mere failure to produce the evidence in issue would not necessarily amount to withholding such evidence. See: Ganiyu Tewogbade v. Arasi Akande (1968) (Pt. 2) NMLR 404 at 408. So, in Francis Odili v. The State supra, learned defence counsel’s submission was that only one of the two Rev. Sisters robbed with violence was called to identify and to testify against the appellant and that the second Rev. Sister and the two night guards who were present during the robbery should have been called as witnesses particularly as the appellant’s defence was that of alibi. This court as already pointed out dismissed this contention as misconceived as the prosecution was not required to call a host of witnesses to prove a particular issue.
In the present case, the issues of fact that the policemen in issue would have given evidence of, had infact been testified upon by P.W. 4 and no question of withholding evidence on the part of the prosecution therefore arose. The prosecution called P.W. 4 as its witness and the witness testified before the court and narrated all that happened at the scene of crime. As I have already indicated, Section 149(d) of the Evidence Act deals with the failure to call evidence and not the failure to call a particular witness.
With respect to learned counsel. I find it difficult to accept that Section 149(d) of the Evidence Act has any application to the facts of the present case.
Learned appellant’s counsel further tried to discredit P.W. 4. He submitted that in his statement, Exhibit B, P.W. 4 stated that he did not hear the question the appellant asked the deceased after the appellant pulled the deceased out of his car. This was because P.W. 4 was inside their car at the time. He claimed that P.W. 4 in his evidence would appear to have heard all that transpired at the scene contrary to what he stated in Exhibit B. He considered P.W. 4 as an untruthful witness. Again, with profound respect to learned counsel, there is clearly nothing, either in the evidence of P.W. 4 before the court or in his statement, Exhibit B which is inconsistent with each other. According to the witness, he was with the deceased in the car when they were stopped. This was after they overshot the checkpoint by a few yards and had to reverse the car back. The appellant then came to them and asked the deceased, with whom he was in the car, why he did not stop in time. There was no evidence that P.W. 4 was deaf. He was therefore bound to hear the question particularly when he was inside the car at the same time with the deceased at the material time.
The appellant next opened the driver’s door, pulled the deceased out of the car and slapped him. At this stage, only P.W. 4 remained inside the car as the deceased had been pulled out. There was no evidence as to whether the opened door subsequently closed or whether the glasses were or were not wounded up. P.W. 4, however, stated that after the deceased had been pulled out of the car and slapped, the appellant asked the deceased some questions which P.W. 4 did not hear. He gave a reason for not hearing this second question. This, P.W. 4 said, was because he was then inside the car. At no other time did he claim that he heard what this second question was. The evidence of P.W. 4 was so clear and straight forward that no conflict conceivably arose from his account of the incident whether from Exhibit B or from his viva voce evidence in court. This evidence of P.W. 4 was believed by the trial court and affirmed by the court below and I have no reason to interfere with these findings. I find no basis in counsel’s submission that P.W. 4 was unreliable and hereby dismiss the same as entirely misconceived and totally unjustifiable.
Learned counsel for the appellant made further attempt to discredit the evidence of P.W. 4 by reason of the fact that he was the brother or blood relation of the deceased and that he must therefore be regarded as a tainted or biased witness whose evidence would require corroboration.
Again, I cannot, with respect, subscribe to this aspect of counsel’s submissions. P.W. 4 without doubt, was the brother of the deceased but that fact did not by itself connote that he was not competent to testify for the prosecution or that he was a tainted witness. A tainted witness has been classified as one who is either an accomplice or by the evidence he gives, whether as a witness for the prosecution or defence, may and could be regarded as having some purpose of his own to serve. See: Ishola v. The State (1978) NSCC 499 at 509. P.W. 4 is neither an accomplice to the offence charged nor was it shown that he had any purpose of his own to serve or that he was in any way biased in his testimony before the court and I am unable to accept that the mere fact that he was the brother of the deceased without more rendered his evidence unacceptable without corroboration or weakened the same or rendered him incompetent as a witness in a case where he was clearly an eye witness.
So in Christopher Arehia and Anor v. The State (1982) NSCC 91, the learned defence counsel contended that the prosecution witnesses who gave evidence as eye witnesses were blood relations of the deceased’s family and that the learned Justices of the Court of Appeal should have warned themselves against the danger of relying on the evidence of the relations of the deceased before convicting the appellant. He argued that this they failed to do. He therefore urged that the appellant’s conviction and sentence be set aside. This court in answer to these submissions observed as follows:-
“It is true that the prosecution witnesses in question were related in one way or the other to the deceased and the learned Justices of the Federal Court of Appeal did not advert to that fact. However the fact that the witnesses were related to the deceased does not mean that they were not competent to testify for the prosecution. Learned counsel for the appellant has not shown them to be biased………………….. ”
I think the credible evidence of P.W. 4 was rightly accepted by both courts below in the present case and I can find no reason to disturb the same.
Learned counsel for the appellant finally submitted that when the deceased held his jaw in pain with his head on the bonnet, he must have been “backing his assailant”. He therefore contended that it was not possible for him to have been shot through the upper left chest as testified to by P.W. 2 and P.W. 4. I need only observe that learned counsel’s conclusion was based entirely on speculation and conjecture as there was no evidence as to whether the deceased was facing or backing the appellant or as to the position of the appellant, namely whether he was standing in front or by the side of or behind the deceased the moment the deceased was shot. There was also no evidence as to the angle the fatal shot was fired from, having regard to the position of the appellant qua the deceased. I therefore find it difficult in the absence of evidence to conjecture whether the deceased backed, faced, half backed or half-faced the appellant at the time the latter mowed him down with his pistol. It suffices to state that on the evidence, which both courts below accepted as true, the appellant shot the deceased through the upper left chest and the deceased died as a result of the injuries he sustained in this attack.
It is for all the reasons that I have given above that issues 2 and 3 must also be resolved against the appellant.
In the final result, this appeal fails and it is accordingly dismissed. The conviction and death sentence passed on the appellant by the trial court and affirmed by the Court of Appeal are hereby further affirmed.
Sc.131/97