Osarodion Okoro V. The State (1988)

LawGlobal-Hub Lead Judgment Report

G. KARIBI-WHYTE, J.S.C.

This is an appeal against the judgment of the Court of Appeal Division in Benin City dated 20/1/88 dismissing the appeal of the appellant against his conviction and sentence at the High Court Benin City, by Okungbowa, J. Although the facts of the case as presented by prosecution is revolting, and the conduct attributed to the appellant in the offence alleged so callous, bizarre and unreasonable; nevertheless, I believe in the constitutional provision that the accused remains innocent until the prosecution has discharged the burden of establishing a prima facie case for him to be called upon to answer the allegations made against him. This is a fundamental requirement of our criminal justice administration.

I do not intend in this judgment to state the facts in any great detail. Since my judgment is based entirely on (a) the failure of the prosecution to make a prima facie case against the appellant, and the obligation of the trial Judge to have discharged him of the offence in consequence, and (b) the error in relying on the evidence of the 6th and 7th accused persons, to establish the guilt of the appellant. I intend to state only the facts which relate to these contentions.

The facts briefly stated are that arising from a disagreement among certain youths, a group of them attacked the other group. One Monday Mozea was a victim of this attack and died in consequence. Appellant and six other persons were charged with the murder of the deceased, an offence punishable under S.319 of the Criminal Code. Of the five witnesses called by the prosecution to prove the charge of murder alleged against the seven accused persons, only PW2, Stephen Ozevbogie claimed that he was an eye witness of the assault which resulted in the death of the deceased. He was unable both in examination in chief and cross-examination to identify any of the accused persons as those who participated in the assault. The 3rd PW, Sgt. Barnabas Shagana, who investigated the offence gave evidence that one Osagie Idahosa, who was not called as a witness by the prosecution identified the appellant and stated in the presence of and hearing of the Appellant, that the Appellant was one of those who assaulted the deceased, resulting in his death. PW1, Dr. Ogbemi, gave evidence of the cause of death of the deceased who was identified to him by one Peter Mozea who claimed to be an uncle of the deceased. He concluded his evidence by saying that death was due to severe pains resulting from the injuries received. The injuries he said could have been caused by blows from blunt objects like heavy pieces of wood, planks, metal rods, human fists, heavy shoes, boots or cement blocks.

The 4th and 5th prosecution witnesses were formal witnesses. The 4th PW gave evidence that he was a process server but was unable to serve Uche Mozea, Anthony Mozea, Omoruyi Idahosa and Osagie Idahosa who were witnesses in this case. He gave evidence that on investigation he found that Uche Mozea had died as a result of a motor accident and Anthony Mozea was involved in an armed robbery offence, had been convicted and sentenced to death. Omoruyi Idahosa, and Osagie Idahosa who claimed to be Students of Secondary School were traced to the schools they named without success. PW5, a Principal Registrar in the Magistrate’s Court Benin City, was called to tender the deposition of the 2nd, 3rd and 4th deponents in the preliminary investigation. These are Anthony Mozea, Omoruyi Idahosa and Osagie Idahosa respectively.

This was the case of the prosecution against the accused persons. The trial Judge in his ruling discharged and acquitted the 3rd accused for want of evidence, since no prima facie case was made against her to require her to defend the charge against her. The 1st, 2nd, 4th, 5th, 6th and 7th accused persons were called upon to make their defence. Each of the accused persons gave evidence in his own defence denying the charge. The 2nd accused was discharged and acquitted because the learned Judge found the evidence against him inconclusive. The prosecution did not give a more credible evidence of the participation of the 4th and 5th accused to demolish the defence of alibi raised by them. They were also acquitted and discharged. Although there was evidence that the 6th and 7th accused were present at the locus criminis, the learned Judge held that there was none as to the part they played in the assault of the deceased. They also were acquitted and discharged. The prosecution failed to prove its case beyond reasonable doubt against each of these accused persons.

The learned trial Judge then had only the case of the 1st accused to consider. He found him guilty of the offence as charged. In coming to this conclusion the trial Judge relied on (a) the evidence of the 3rd prosecution witness that he was told by one Osagie Idahosa in the presence of and the hearing of the 1st accused person that the 1st accused person joined other assailants to commit the crime;

(b) the cause of death of the deceased as stated by 1st prosecution witness is consistent with the act of the accused person;

(c) the evidence of the 6th and 7th accused persons that 1st accused beat the deceased with his fist and legs and even refused cold water to be administered to the deceased when the deceased was in great pains and was gasping for breath;

(d) the evidence of the 1st, 2nd, 3rd prosecution witnesses and the 6th and 7th accused persons who very much impressed him as witnesses of truth.

It is pertinent and useful for my purposes in this judgment to analyse the evidence of the 1st, 2nd, and 3rd prosecution witnesses, relied upon by the learned trial Judge in calling on the 1st accused to make his defence. These are the evidence in (a) and (b) above. There seems to me no doubt that the evidence of the 1st prosecution witness, that is, the Medical Doctor had no particular relationship at this stage with any of the accused persons. The 2nd prosecution witness who was an eye witness of the brutal and dastardly assault was unable to and consistently maintained that he could not recognise any of the assailants and could not identify the 1st accused or any of the accused persons as among the assailants of the deceased. The evidence of PW3 that Osagie Idahosa alleged to the hearing and in the presence of the 1st accused that 1st accused was among the assailants of the deceased, was rejected by the trial Judge when he rejected the deposition of Osagie Idahosa. Even if it was admitted, Osagie Idahosa not being a witness in the case it would not have been evidence against the 1st accused. Thus, at the end of the prosecution’s case all that was established beyond doubt was the death of a human being alleged to be Monday Mozea. PW1 has given evidence of death of Monday Mozea. Peter Mozea who it was claimed identified the deceased to PW1 was not called as a witness for the prosecution. Accordingly, the prosecution was unable to give evidence of the nexus between the accused person and the commission of the offence.

It is a constitutional requirement that every person who is charged with a criminal offence will be presumed to be innocent until he is proved guilty. See S.33(5) Constitution 1979. This is the presumption of innocence to which everyone charged with a criminal offence is entitled. It is important to observe also that an accused person is not obliged to say anything. See S.33(11). He will be obliged to make his defence to the charge if his remaining silent will result in his being convicted on the case made against him by the prosecution – See S.137(3) Evidence Act, Cap.62, R v Mohammed Bada & anor. (1944) 10 WACA. 249. Section 137(1) of the Evidence Act provides

“If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.” – See Oteki v Attorney-General Bendel State (1986) 2 NWLR (Pt.24) 648.

This burden remains on the prosecution to the end of the case and never shifts.