Ganiyu Nasiru V. The State (1999)

LAWGLOBAL HUB Lead Judgment Report

UWAIS, C.J.N

This is an appeal from the decision of the Court of Appeal, Ibadan. The appellant was charged with and convicted of the murder of Saliu Kolade contrary to section 316 subsection (3) of the Criminal Code, Cap. 29 of the Laws of Ogun State of Nigeria 1978, punishahle under section 319 thereof.

The facts of the case are simple. The deceased was a taxi driver. His taxi which was a Volkswagen Beetle car bore the registration number OG 9725 T. On the 12th day of April, 1985 the deceased was approached and requested at Sango Otta motor park by the accused who was accompanied by one Taju, to take them in his taxi to Ado-Odo. The deceased agreed to do so. He charged N10.00 as the fare and the amount was instantly paid to him by the accused. The deceased started the journey from the motor park, with the accused and Taju in the taxi. By 10.00pm, in the night of the same day, the taxi was parked outside the house of P.W.7 Akintunde Oshunsina and P.W.3 Oladunjoye Olakitan at Isaga compound in Ado-Odo. The accused drove the taxi to the Isaga compound in company of Taju. The deceased was not with them nor did he drive the car to the Isaga compound. The accused saw P.W.7 and asked him about P.W.3 who was then not at home. On learning that P.W.3 was absent, the accused and Taju left in the taxi with the former driving. Later in the night they returned to Isaga compound and met P.W.3 who had then returned to his house. Both accused and Taju sought the permission of P.W.3 for them to stay the night in his house. P.W.3 agreed to their request. The taxi was parked outside the Isaga compound.

P.W. 7 enquired from the accused about the owner of the taxi and why they chose to stay the night with him. The accused answered that the taxi belonged to Taju and that they were unable to arrive at the Isaga compound earlier than they did because the men of Customs and Excise Department had set up roadblocks on the way. The accused also mentioned to P.W.7 that they were on their way to Lagos but had to stay the night at Ado-Odo because of the presence of Customs and Excise officials on the route to Lagos. At 7.00 a.m. on the 13th day of April, 1985, when P.W.7 woke up from sleep, he discovered that the accused, Taju and P.W.3 had left Isaga compound.

In his testimony, P.W.3 said that the accused and one other person came to him on the 12th day of April, 1995 in a taxi at his house in Isaga compound. They both asked for his permission to stay the night with him. They indicated to him that they were on a business trip. He allowed them to stay the night. On the 13th day of April, 1985 in the morning, the accused and Taju said to P.W.3 that they did not have money on them. P.W.3 gave them N20 and 2 bottles of a drink. They left the house of P.W.3 in the taxi while P.W.3 went to his place of work. P.W.3 left for Agege on the same day and when he was returning to Ado-Odo from there, he saw both the accused and Taju somewhere on the road near Alapoti village. They were at the road side when P.W.3 asked them why they were still in Ado-Odo and they replied that they had smuggled (contraband) goods in the taxi and that the road was blocked by Customs and Excise officials who had mounted roadblocks on the road. As the taxi was not in their company when P.W.3 saw them, he asked about the taxi and they pointed to him at where it was parked. P.W. 3 left them at the spot and returned to his house.

On the 14th day of April, 1985, P,W,3 while at his house in Isaga compound saw a number of policemen who came to him in a police vehicle. They asked him about ‘”Akin” who was then not present in the house. He told them that Akin had gone to drink. The policemen asked him to take them to the drink place. As they got there Akin took to his heels but he was pursued and later arrested by the police. Later the policemen asked of the accused and P.W.3 took them to the accused’s house which was in the township of Ado-Odo. On reaching the house both P.W.3 and the policemen saw the accused coming out of the house and was about to enter a taxi. The accused entered the taxi and beckoned to them to follow. In the taxi were the driver and Taju. The taxi took off and the police vehicle followed it. After about 30 minutes of chasing the taxi around Ado-Odo town, the policemen caught up with the taxi. They arrested the accused but Taju escaped the arrest.

While being cross-examined by counsel for the accused at the trial court, P.W. 3 said that he knew the accused as a smuggler. He also said that the accused and Taju left his house on the 13th day of April, 1985 early in the morning at 5.00 a.m.

P.W. 1, Moshood Olawole, testified that the taxi driven by the deceased was given to the deceased by him on the 12th day of April, 1985, on behalf of the owner for the deceased to drive it as a taxi. He said that the taxi belonged to one Mr. David Falade. When by the 13th day of April, 1985 the deceased did not return the taxi to him, P.W. 1 went to Mr. Falade to make a report. They both decided to report to the police about the missing taxi and the deceased. The police advised them to make further inquiries about the whereabouts of the deceased and the taxi,

P.W.1 went to Otta Motor Park where on inquiry he learnt that it was the accused that hired the taxi the previous day to take him to Ado-Odo. P.W. 1 together with the wife of Mr. Falade and the wife of the deceased went to Ado-Odo to find out about the accused and the deceased. Although they were informed that the taxi was seen in Ado-Odo the previous day and on the 13th day of April, 1985, they did not succeed in either tracing the taxi or the accused. They, therefore, returned to Sango Otta and went to the police station to inform the police about the outcome of their inquiries in Ado-Odo. The policemen asked P.W.1 to return to the station the following day.

On the 14th day of April, 1985, P.W.1 returned to the police station, He was taken by the policemen to the General Hospital at Ilaro, and at the mortuary of the hospital, he was shown a dead body, He immediately identified it as the corpse of Saliu Kolade. P.W.1 and the police returned to the police station at Sango Otta, P.W.1 and 2 policemen went to Ado-Odo for further investigation. At the Isaga compound the policemen arrested a person who informed them that the taxi driven by the deceased was parked outside the compound in the night on the 12th day of April. 1985. The man was arrested by the police and he took the team to a place in the vicinity of Alapoti village, where the taxi driven by the deceased was found.

P.W.6. Surajo Akinyele, of Attan-Otta testified that on the 13th day of April 1985 he was in the company of his fellow villagers, with whom he went to fetch water, when his attention was called by the noise of children who had discovered a corpse. P.W.6 picked up the corpse which was lying in a gutter. He left the corpse and went to report the incident to his father. Together with his father, they went to Sango Otta Police Station to make a report to the police. The witness observed that the corpse suffered wounds all over. He said that it was later taken from the scene to the mortuary at the hospital.

P.W.5 said. in his testimony, that he was on duty on the 13th day of April, 1985, at Sango Otta Police Station when a case of “sudden and unnatural death” was referred to him for investigation. He left for Atan Otta and somewhere on the way at “the old Ajegunle Road”, he was shown the corpse of a young man lying in a gutter. With the help or some people who were around, he removed the corpse to the mortuary of Ilaro State Hospital where he deposited it.

On the following day- the 14th day of April, 1985 – P.W.5 arrested the accused at Ado-Odo. Later on he was taken to a farm near Alapoti village by P.W.3 where he recovered the taxi driven by the deceased, which was reported missing. On returning to the police station, he charged the accused with the murder of the deceased. He spoke to the accused in Pidgin English. After cautioning the accused, he volunteered to make a statement. Accused spoke to P.W.5 in Pidgin English also. The statement was recorded and was signed by the accused after it was read to him by the witness. The statement was tendered without objection by the accused and it was admitted as “Exh. A-A 1″ at the trial.

P.W.4 Alhaji Jimoh Kolade, testified that he was the full-brother of the deceased. He said that he received information on the 14th day of April, 1985 that the corpse of his brother was discovered. He went to Ilaro State Hospital where he saw the corpse of the deceased in the mortuary. He said that he identified the corpse to a doctor in the hospital.

Dr. Akintunde Oluwadare, a medical practitioner, testified as P.W.8. He said that he performed an autopsy on the body of the deceased on the 16th day of April, 1985. He gave the age of the deceased as 24 years old and said that the corpse was identified to him by Alhaji Jimoh Kolade. P.W.4. He said that at the time of the autopsy the body was decomposed. There were multiple lacerations of the scalp, with fractured skull. In his opinion, the deceased died of cerebral haemorrhage and that he must have died on or about the 12th day of April, 1985.

At the conclusion of the case the appellant opted not to testify as he was entitled to.

In his judgment, the learned trial Judge (Somolu, J.) found the charge against the appellant proved. He accordingly convicted him as charged and passed a sentence of death on him.

Not satisfied with the conviction, the appellant unsuccessfully appealed to the Court of Appeal (Mukhtar, Okunola and Adamu. J.JC.A.). He has now appealed further to this court.

Briefs of argument have been filed by the parties. The appellant has raised 4 issues for determination, namely:

1. Whether or not the Court of Appeal erred on facts and in law when it affirmed the trial court’s decision and held that the circumstantial evidence upon which the appellant was convicted was overwhelming, strong, cogent, irresistible and enough to establish the guilt of the appellant.
2. Whether or not the court below erred in law by its failure to hold specifically that the onus of proof lies on the respondent which onus must be proved beyond reasonable doubt
3. Whether the Court of Appeal was right in affirming the judgment of the trial court inspite of the fact that the learned trial Judge having made a finding that the two investigating police officer failed to investigate the alibi of the accused and therefore failed to prove the alibi wrong, could have rightfully held that the prosecution had proved the case beyond reasonsable doubt.
4. Whether or not the courts misdirected themselves as on the issue of burden of proof and if so, was the appellant’s case prejudiced thereof.

The respondent alluding to the ground of appeal filed by the appellant submitted that the only issues which arose from the grounds of appeal, for determination are:

a. Whether the Court of Appeal erred on facts and in law when it affirmed the trial court’s decision and held that the circumstantial evidence upon which the appellant was convicted was overwhelming, strong, cogent, irresistible and enough to establish the guilt of the appellant.

b. Whether the Court of Appeal was right in failing to hold that the trial court misdirected itself on the issue of burden of proof and if so whether the appellant’s case was prejudiced.”

On the 3 grounds of appeal, filed by counsel on behalf of the appellant, the first complains that the Court of Appeal failed to hold that the circumstantial evidence adduced by the prosecution at the trial court was not sufficient or irresistible to convict the appellant. The second ground contends that the Court of Appeal was in error when it failed to hold that the learned trial Judge acted wrongly in shifting the onus of proof beyond reasonable doubt from the prosecution to the appellant. The third ground alleges that the Court of Appeal failed to hold that the learned trial Judge misdirected himself in shifting the onus of proof to the appellant contrary to section 33 subsections 5 of the 1979 Constitution. From this, it is clear, as stated in the respondent’s brief of argument, that issue No. 3, in the appellant’s brief of argument, on alibi cannot be hinged on any of the grounds of appeal. It does not, therefore, arise. Consequently, I will discountenance appellant’s issue No. 3 – see Western Steel Works v. Iron & Steel Workers Union (1987) 1 NWLR (Pt.49) 284 at p. 304, Egbe v. Alhaji (1990) 1 NWLR (Pt. 128) 546 at p. 590, Agu v. Ikewibe (1991) 3 NWLR (Pt. 313) 516 at pp. 528 and 538.

Arguing issue No. 1, learned counsel for the appellant submitted that the circumstantial evidence upon which the appellant was convicted by the trial court and confirmed by the court below was not cogent, complete and unequivocal. Nor did lead irresistibly to the conclusion that it was the appellant and not anyone else that killed the deceased. The case of Ansha v. The State (1998) 2 NWLR (Pt. 537) 246 at p. 265 was cited in support. Furthermore, it was submitted that the evidence before the trial court merely raised suspicion against the appellant and Taju and suspicion, no matter how strong, cannot, on the authority of the following cases, lead to conviction – Anekwe v. The State (1976) 9-10 S.C. 255 at p. 264, Igboji Abieke & Anor v. The State (1975) 9-11 S.C. 97 at p. 114, Onah v. State (1985) 3 NWLR (Pt. 12) 236 at pp. 243 and 244; Nwaeze v. The State (1996) 2 NWLR (Pt. 428) 1 at pp. 11-12 and 19.

In reply, learned Director of Public Prosecutions conceived that the prosecution relied on circumstantial evidence in the absence of direct evidence. He defined circumstantial evidence as evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with the accuracy of mathematics. He submitted that the circumstances relied upon, in a case based on circumstantial evidence, should point unequivocally, positively, unmistakenly and irresistibly to the fact that the offence charged had been committed and that it was the accused that committed it. He cited the cases of Kalu v. The State (1993) 6 NWLR (Pt. 300) 385 at p. 396 and Lori & Anor. v. The State (1980) 8-11 S.C. 81 at p. 86. He then submitted that this circumstantial evidence upon which the appellant was convicted, and which conviction was affirmed by the Court of Appeal, was cogent and unequivocal. Learned Director of Public Prosecutions argued that the fact that the appellant and Taju were the last persons to see the deceased alive is by itself a strong circumstantial evidence to prove the guilt of the appellant. He cited the following cases in support – Peter Igho v. The State (1978) 1 ALL NLR 88; Sofiu Amusa & Ors. v. The State (1966) 2 NWLR (Pt. 30) 536; Kalu v. State (1993) 6 NWLR (Pt. 300) 385 and Ariche v. State (1993) 6 NWLR (Pt. 302) 752.

Now, it is trite that in a criminal case the burden of proof lies on the prosecution and the standard of such proof is proof beyond reasonable doubt- see section 138 of the Evidence Act, Cap. 112 of the Laws of the Federation of Nigeria, 1990. However, the expression “beyond reasonable doubt” does not mean beyond any shadow or doubt – see Akalezi v. The State (1993) 2 NWLR (Pt.273) 1 at p.13. The provisions of section 149 of the Evidence Act, Cap. 112 enables a court to accept the proof of death by circumstantial evidence. This has been made so because in criminal cases the possibility of always proving the offence charged by direct and positive testimony of eye-witness is rare. It is, therefore, permitted to infer, from the facts proved, other facts necessary to complete the elements of guilt or establish innocence. In Teper v. R. (1952) A.C. 480 It was held by Lord Normand, on p. 489 thereof that circumstantial evidence-

“…must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another… it is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.

See also the case of The Queen v. Ororosukode (1960) SCNLR 501 at 504; 5 FSC 208 at p.21 0 where this dictum was cited by the Federal Supreme Court with approval.

The facts of this case should therefore be viewed with the foregoing warning in mind. The circumstantial evidence in the case which was accepted by the learned trial Judge and considered overwhelming by the Court of Appeal is that the accused together with Taju hired the taxi driven by the deceased to take them to Ado-Odo from Sango Otta Motor Park. The accused and Taju reached Ado-Odo in the taxi but without the deceased. What then had happened to the deceased The prosecution answered this question by producing the evidence that the deceased was found dead the following morning in a gutter at a place different from Sango Otta and Ado-Odo. The inference to be drawn from this is that the deceased was killed so that he could he deprived of his taxi. If this is so, who would have killed him Evidence was adduced that the accused was seen driving the vehicle and he told P.W.7 that the taxi belonged to Taju, which was a lie.

The inference to be drawn from this is that the deceased was killed by the accused and Taju in order for the accused and Taju to steal the taxi. This inference is strengthened by the fact that from the evidence adduced by the prosecution, the accused and Taju stayed together from the 12th day of April. 1985 to the 14th day of April 1985 when the accused was arrested by the police and Taju escaped from the arrest. Although the accused lives in Ado-Odo he avoided staying in his house on the night of the 12th day of April. 1985 by staying with P.W. 3.

Furthermore, the medical evidence produced by the prosecution showed that the deceased suffered a violent death. His head had injuries and his skull was fractured and his body was thrown into a gutter. This goes to support the inference that force was used on him in order that the taxi might be taken away from him.

This is the type of mathematical deduction envisaged by the cases cited above for a conviction based on circumstantial evidence. I cannot see how it can be said that the foregoing facts had been fabricated to implicate the accused. The facts are real. Nor can I find any co-existing circumstances that weaken or destroy the inferences made, except the alibi raised by the accused in his statement to the police, Exh. A-A1. But the facts stated in the statement are not admission or confessional in terms of sections 19 and 28 of Evidence Act, Cap. I12 and so they are not to be taken as proved or true. When the statement was tendered and admitted in evidence by the prosecution, it was to simply prove that the statement was taken from the accused – see Sanusi v. State (1984) 10 S.C. 166 at p. 199 where Oputa. J.S.C. stated thus:

“In Subramanian v. Public Prosecutor (1956) I WLR 965 at p.970 the necessary distinction was drawn between tendering an accused person’s statement as proof of the fact that it was made and tendering same as proof of the truth of its contents. It is my humble view that when the prosecution tenders the statement of an accused person they tender same only as proof (of the fact) that a statement was made, and not as proof of the truth of its contents.”

The accused could have raised the contents of the statement to a higher pedestal had it been he chose to testify at the trial admitting that he made the statement and standing by it, but this the accused did not do.

In my view, the statement does not, therefore, constitute a co-existing circumstance which weakens or destroys the inference that accused and Taju killed the deceased to deprive him of the taxi.

The facts of the case of The Queen v. Ororosokode (supra) are similar to those of the present case though not on all fours. In that case the deceased was a taxi driver, and on the 28th of December he left Onitsha for Warri with two passengers and said that he intended to pick up a third passenger. The two passengers wore dark glasses but were seen by a witness, who was sufficiently near to them to be able to describe the clothes that they were wearing as they sat in the motorcar. This witness was unable to identify the accused as either of the passengers and there was no evidence to show that a third passenger was, in fact, ever picked up or that such passenger was the accused. The deceased had been expected back in Onitsha from the trip to Warri either on the following day or on the 30th December, but he did not return and he was never seen alive again. On the morning of the 29th December, the body of the deceased was found lying on the grass verge of the road to Jesse. He had been brutally murdered, and it was probable that the matchet used for the murder was the deceased’s own matchet, which had been in the motor car, as the scabbard of that matchet was found at the scene of the crime bespattered with blood. The pockets of the clothes which the deceased was wearing had been turned out and any property which had been in them removed. The motorcar was missing and from subsequent events there could be no doubt that it had been stolen either by the murderers or by some person or persons who had found the abandoned car on the road. On the same morning as that on which the body of the driver was found two persons were arraigned at Akuri for the registration of a motor car, which was later identified as the stolen taxi, and the car was registered in the name of one of the persons, who gave his name as S. Oke. On the same day the car was taken to a painter, who altered the colour from black to green. The accused was identified as S. Oke by a clerk in the motor registration office. The accused was also identified by the painter. The car was later used as a taxi in Akuri by a man named Robinson until his death on 22nd February, when the fact that the car was stolen came to light. The engine number was removed. The car appeared to have been used exclusively by Robinson and there was no evidence to show that the accused had any financial or other interest in it after it had been registered and licensed; and the directions given by Robinson shortly before his death tended to show that the accused had no interest in the car at that time.

The accused denied the charge, both in his statement to the police and in his testimony, when he said that he was at a camp collecting food from the 24th to 29th December and that one Mapo had seen him there. Mapo was not called as a witness as the police were unable to find him for the purpose of serving subpoena, which was issued at the instance of the defence. The trial Judge convicted the accused on the circumstantial evidence that the persons who took the car for registration within a few hours of the death of its driver and who took it to the painter to change the colour were the persons who stole it and, having regard to the very short period which elapsed between the killing of the driver and the appearance of the persons before the licensing officer, the trial Judge found that the accused and Robinson stole the car after killing the driver. He convicted the accused.

On appeal to the Federal Supreme Court, that court found that there were two circumstances which weakened the inference of guilt. One was that the accused was not identified as one of the passengers in the deceased’s motor car on its fatal trip to Warri, and in the second the circumstances of the case were consistent with the motor vehicle having been registered by some person other than the murderer. There was also the point that it was strange that there was nothing to show that the accused received any financial benefit from the motorcar, if in fact he stole it for the purposes of gain after murdering the driver.

It is quite clear that the same cannot be said of the accused in the present case. His identity as a passenger in the deceased’s taxi is not in doubt. He retained and drove the taxi even after the deceased was killed.

I, therefore, agree with the finding of the learned trial Judge, confirmed by the Court of Appeal, that the circumstantial evidence adduced by the prosecution was irresistible enough to establish the guilt of the appellant.

Appellant’s issues Nos.2 and 4 which deal with proof beyond reasonable doubt and the onus of proof can be dealt with together. Learned counsel for the appellant contested that the Court of Appeal was in error when it failed to specifically hold that the onus of proof beyond reasonable doubt rested with the respondent. He referred to the judgment of the lower court to show that the learned trial Judge shifted the onus of proof on the appellant by requiring him to prove his innocence. He argued that since the trial Judge misdirected himself in this respect, there was doubt in his mind as to whether the prosecution proved his case beyond reasonable doubt and that the doubt ought to have been resolved in favour of the appellant. That the right to silence, which the appellant exercised by not giving evidence, had been guaranteed by section 33 subsection 11 of the 1979 Constitution. He referred to the cases of Uyo v. A-G of Bendel State (1986) 1 NWLR (Pt.17) 418; Ogbubunjo v. State (1996) 6 NWLR (Pt.452) 78 at p.89 and Alonge v. Inspector General of Police (1959) SCNLR 516; (1959) 4 FSC 2, at 204. He argued further that the learned trial Judge was wrong to rely on the case of Utteh v. State (1992) 2 NWLR (Pt.221) 257 at p. 275 because its facts are distinguishable from those of the present case. Learned counsel submitted that based on the evidence adduced by the prosecution, there was no nexus between the injuries inflicted on the deceased and the appellant because the prosecution failed to prove that the appellant killed the deceased. It is only when this is done by the prosecution that the trial court could call upon the accused to enter his defence. He relied on the case of Onah v. State (1985) 1 NWLR (Pt.12) 216 at p.247. He referred to section 138 (sic 139) of the Evidence Act.

Learned counsel referred to this remark by the learned trial Judge in his judgment:

“‘That the decomposed lifeless body of Saliu Kolade within the ual content of the facts of this case raises quite straight forwardly the legal concept or doctrine of res ipsa loquitur, barring of course suicide or immolation of a type.”

and submitted that by this remark the learned trial Judge meant that the appellant’s involvement in the murder of the deceased speaks for itself and therefore the onus of proof is now on the appellant to show that he did not murder the deceased. Learned counsel submitted that this is wrong and that the trial court based its finding of guilt of the appellant on the wrong principle of law which applies to tort and not criminal law and that the Court of Appeal was in error for not so holding.

In reply, learned counsel to the respondent conceded that it is trite that there is no onus on the accused person to prove his innocence. The onus is on the prosecution to establish the guilt of the accused beyond reasonable doubt. However, he argued, when the evidence adduced by the prosecution conclusively points to the accused as the perpetrator of the crime alleged to have been committed; the onus is on the accused to rebut the presumption of guilt against him. He referred to the case of Khaleel v. State (1997) 8 NWLR (Pt.516) 237 at p.248 where it was stated:

“In other words once circumstantial evidence conclusively points to the accused as the perpetrator of the offence and the same has been adequately scrutinised, believed and accepted by the trial court, the onus shifts to the accused to rebut the presumption of guilt or to cast a reasonable doubt on the prosecution’s case even though by preponderance of probabilities.”

Learned counsel submitted that the prosecution had discharged the onus placed on it by adducing cogent and compelling evidence as held by the trial court. He argued that the trial court did not impose any duty on the appellant to prove his innocence, and that it was only after the court had accepted the case for the prosecution that the trial Judge stated that the appellant failed to avail himself of the opportunity to rebut the presumption of guilt or cast reasonable doubt on the prosecution case. With reference to the doctrine of res ipsa loquitur, counsel submitted that the trial Judge referred to it loosely to show that the deceased was killed by the two persons to have last seen him alive. Since the burden of proof in the case was not predicated on the reference, no miscarriage of justice had been occasioned by the wrongful allusion to the doctrine having regard to the totality of the evidence before the trial court.

In treating the argument advanced in respect of appellant’s issue No.1. I inter alia dealt with the question of standard of proof. It is very clear from the provisions of sections 136, 138 and 139 of the Evidence Act, Cap. 112 that the burden of proving a charge against an accused person is upon the prosecution, the burden may of course shift to the accused person by virtue of the provisions of sections 138 subsection (3), 139, 141 and 143 of the Evidence Act. Cap. 112. There is no doubt that the standard of proof by the prosecution is beyond reasonable doubt as per section 138 of the Evidence Act.

Therefore, when the prosecution in this case adduced circumstantial evidence which showed that the appellant and Taju were guilty of murdering the deceased, the burden of proving that they were or appellant was innocent shifted on him, It was in trying to state this position of the Evidence Act that the learned trial Judge wrongly used the expression res ipsa loquitur which is a doctrine of the law of tort inapplicable to criminal law. The question is; did the reference by the learned trial Judge to the doctrine derogate from the appellant’s right not to prove his innocence In my opinion it does not. Section 33 subsection (11) of the 1979 Constitution which provides:

“(11) No person who is tried for a criminal offence shall be compelled to give evidence at the trial.”

entitled appellant to opt not to testify as he did. However, it may not be desirable to exercise this right where the prosecution in a trial has closed its case and had in the course of that established a strong case against the accused. As to whether the trial court is at liberty to comment about the failure of the accused to testify, it was decided by this court in Sugh v. Tire Stare (1988) 2 NWLR (Pt.77) 475; (1988) 1 NSCC 852 that the provisions of section 33 subsection (11) of the 1979 Constitution does not stop a trial judge from drawing any unfavourable inference against the accused having regard to the evidence adduced in the case by the prosecution.

I am in no doubt that the learned trial Judge in this case misdirected himself in referring to the doctrine of res ipsa loquitur, but this has not occasioned any miscarriage of justice since the appellant opted not to give evidence at the trial and there was sufficient evidence adduced by the prosecution to justify his conviction of the murder charge.

On the whole, I come to the conclusion that this appeal has no merit and that it should be dismissed. Accordingly, it is hereby dismissed and the decision of the Court of Appeal confirming that of the trial court is hereby affirmed.

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SC.22/1998