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.

It is a general burden to rebut the presumption of innocence constitutionally guaranteed to the citizen. See Alonge v I. G. of Police (1959) 4 FSC 203.

The question then arises how the burden can be discharged The burden on the prosecution is only discharged when the essential ingredients of the offence charged have been established and the accused person is unable to bring himself within the defences or exceptions allowed under the law generally or the statute creating the offence. See Oteki v. A-G. Bendels State (1986) 2 NWLR (Pt.24) 648. Thus in a prosecution for murder, it is essential for the prosecution to prove:

(a) Death of the deceased by a voluntary act of the accused.

(b) With intent to cause such death or cause grievous bodily harm to the deceased.

It is vital to the case of the prosecution to prove that death of the deceased was a direct result of the act of the accused to the exclusion of all probable causes. It is necessary for the body where identification is required to be identified by a person who knew the deceased alive. See R v Laoye & anor (1940) 6 WACA 6.

Thus if at the close of the case for the prosecution the evidence led fails to meet these essential requirements, it seems to me incontestable that the prosecution has not discharged the constitutional burden to establish the guilt of the accused beyond reasonable doubt. Section 33(5) – See Are v Adisa (1967) NMLR 304.

The learned trial Judge in discharging the 3rd accused at the close of the case for the prosecution relied on the provisions of section 286 of the Criminal Procedure Law, which provides –

“If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the defendant sufficiently to require him to make a defence the court shall, as to that particular charge discharge him.” The words in italics are relevant and important in indicating the duty required of the Court. Thus the mere use of the words “if … it appears” does not entitle a judge to say that it does appear, to him, where the prosecution has not made out a case against the accused to answer. Again the case so made out must be ‘sufficient’ to require the accused to make a defence. It is not sufficient that there has been a casual reference to the accused. Therefore, the case of the prosecution ought to be sufficiently cogent to require the accused to further deny the accusation. See Police v Marke (1957) 2 FSC. 5: Nwali v Police (1956) 1 ERNLR 1.

It is only after this requirement has been satisfied that the learned Judge would hold that a prima facie case has been made out for the accused to answer, and call upon him to make his defence – See S.287 Criminal Procedure Law, Cap. 49 Vol. 11 Laws of Bendel State. The learned trial Judge in this case found as a fact (1) that the deceased died from injuries inflicted on him by his assailants; (2) that the cause of death was consistent with the voluntary act of the deceased’s assailants as stated in the evidence of the 2nd prosecution witness; (3) that the assailants intended to kill the deceased or do grievous bodily harm to him; (4) But he did not find at the end of the case of the prosecution that any of the accused was connected with the assault resulting in death of the deceased. It was on this evidence which they gave in their own defence which the learned Judge believed, that the learned Judge discharged and acquitted the 2nd, 4th, 5th, 6th, and 7th accused persons on the ground that the prosecution failed to prove the charge against them beyond reasonable doubt.

Like the 2nd, 4th, 5th, 6th and 7th accused persons, the 1st accused gave evidence in his own defence. But the learned trial Judge convicted him on the evidence of the 3rd prosecution witness and of the 6th and 7th accused persons. The evidence of the 3rd prosecution witness on cross-examination was as follows-

“I arrested the 1st accused person after in the midnight of 10th/11th of December, 1983. Osagie Idahosa had identified him and told me in the presence and to the hearing of the 1st accused was one of those who killed the deceased.” (See p.12 lines 26-30). The evidence of the 6th accused was as follows:

“I saw the 1st accused person from where I was standing outside breaking the door leading to where the deceased had locked himself up. When the 1st accused person succeeded in breaking the door leading to the room where the deceased was I saw the other persons in the 1st accused person company enter into the room.

Shortly afterwards, I saw Theophilus dragging the deceased on the ground by pulling him on the legs. The deceased was then finally dragged outside and placed on a spot about 16 feet away from me. While the deceased was on the floor outside I saw the 1st accused persons, Theophilus and Harrison Ogbevoen beat the deceased with hands and legs. The 7th accused person who also came out with the 1st accused person and Harrison Ogbevoen did not beat the deceased instead he joined me where I was watching the Passat Car. I noticed that the beating was severe and the deceased cried in pains and asked for water to drink. One boy whom I had not known before brought some water to the deceased but the 1st accused person refused that the water should be given to the deceased. The 1st accused threw the water away. While the deceased was still sprawling on the ground the 1st accused person jumped up and hit the deceased hard on the head.

The 7th accused on his part gave evidence in his own defence and stated as follows:

“At the Scene of Crime I joined the others to pursue the deceased. Those of us who pursued the deceased were the 1st accused, Theophilus, Harrison, Godwin and myself in addition to the other boy whose name I cannot remember. The deceased ran into room of a house and locked up himself there. A woman was by the door and pleaded with us that the deceased was not in the room. The 1st accused said that the woman was lying and so the 1st accused person forced the door open and immediately the deceased came out of the room to the parlour. The deceased was seized by Theophilus and 1st accused, Theophilus, Harrison, Godwin and the other boy began to beat the deceased. The deceased was been beaten with fist and legs. When I could not stand what the 1st accused person, Theophilus, Godwin and Harrison were doing and I could not stop them from beating the deceased I came out of the room. I was outside when I saw Theophilus the 1st accused, Harrison and Godwin drag the deceased outside. While the deceased was lying on the floor outside the 1st accused person Theophilus, Godwin, Harrison and the other boy began to beat the deceased by using fist and legs. One old man came, he is the 2nd PW. in this case. The 2nd PW tried to prevent further beating of the deceased the old man was pushed away, he fell, got up and sat at a place close by. I told the 1st accused, Theophilus and Godwin that what they were doing was bad and that they should leave the deceased. I collected water from a nearby well and I poured the water on the deceased. The 1st accused person and Godwin wanted to put the deceased in the boot of the car, but I prevented them. The learned Judge appreciated the status of 6th and 7th accused persons as co-accused of the 1st accused and that they had their own interest to serve and therefore warned himself of the risk of relying on the evidence. However, the learned Judge believed them as truthful witnesses who impressed him in the manner they gave their evidence unshaken during cross-examination. Finally he said:

“I believe the 6th and 7th accused persons that the 1st accused person joined the other assailants to murder the deceased. I do not believe the 1st accused person. He appeared to me as a young man who has no regard for truth. He lied in order to deceive the court. I regard his denial as an afterthought.”

After considering and rejecting the defences of provocation and self-defence, the learned Judge concluded:

From the evidence of the 1st prosecution witness it is not possible to find out whose act of the 1st accused and the other assailants now at large killed the deceased. I find the case of the murder of Monday Mozea against the 1st accused person Osarodion Okoro, proved by the prosecution beyond reasonable doubt and I accordingly find him guilty of the murder of Monday Mozea.”

(See p.54 line 30 to p.55 lines 1-8).

Accused appealed against the conviction and sentence. He filed two grounds of appeal and with the leave of the court two additional grounds of appeal were filed. For the purpose of the appeal, only the two additional grounds of appeal were argued. They are as follows:

“(1) The learned trial Judge erred in law in finding the appellant guilty of the offence of murder, as charged by relying on the evidence of the 6th and 7th accused persons. See page 55 lines 3-6, page 53 line 32, and page 54 lines 1-9.

PARTICULARS

The evidence, at the trial, of the 6th and 7th accused persons was at variance, in material particulars with their statement Exhibit 6 and 7 respectively to the police, so that their evidence was not as reliable as the learned trial Judge found it to be and thus was wrong to rely on the said pieces of evidence to convict the appellant.”

(2) The learned trial Judge erred in law in finding the appellant guilty of the offence of Murder as charged when the prosecution did not prove its case beyond reasonable doubt as required by law.

PARTICULARS

The 6th and 7th accused persons on whose evidence the learned trial Judge relied in convicting the appellant, of the offence of murder as charged, were not witnesses of truth, whose evidence proved the charge of murder beyond any reasonable doubt; in that, “the evidence of the 6th and 7th accused persons on oath was not exactly in line with what they told the police at their earliest opportunity”. See page 54 lines 3-9, page 63-64, page 28 lines 4-25, page 31 line 31-32 and page 32 lines 1 and 2.”

Concisely stated, the grounds relate to the correctness and validity of the conviction which relied on the evidence of the 6th and 7th accused persons, and the claim that the prosecution proved its case beyond reasonable doubt. In considering the correctness of relying on the evidence of the 6th and 7th accused persons for the conviction of the appellant, the Court of Appeal observed that ‘there, is no dispute whatever that without the evidence of 6th and 7th accused appellant could not have been convicted of the murder of Monday Mozea,’ and continued that ‘The evidence that Osagie Idahosa told PW3 in the presence of the appellant, that appellant joined other assailants to kill Monday, may not be sufficient to ground a conviction for murder. But the 6th and 7th accused persons were at the scene and they saw and testified to the role played by the appellant in the commission of the crime. ‘

The Court of Appeal went on to consider whether the learned trial Judge was right in accepting and using the evidence of the co-accused person to convict the appellant. The Court of Appeal relying on Section 177(2) of the Evidence Act, and the decided cases of Ukut & Anor v The State (1965) 1 All NLR 306; Queen v Onuegbe (1957) 2 FSC 10; Adeyeye v State (1968) NMLR 48 among others, held that the learned trial Judge having warned himself about the risk of relying on such evidence was entitled to use the evidence against the appellant even though it is evidence of a co-accused. The Court of Appeal added that the 6th and 7th accused persons corroborated each other’s evidence – See Queen v Asaba & ors. In re Adamu (1961) 1 All NLR.673.

The Court of Appeal considered the issue of material contradictions in the statements to the police and evidence in court of the 6th and 7th accused persons and held that there were no fundamental material inconsistencies between their statements to the police and their evidence at the trial. This is a further appeal to this court. Three original grounds of appeal were filed, and with leave of this court, appellant filed an additional ground.

The following are the original grounds of appeal excluding the particulars:

“1. The Learned Justices of the Court of Appeal erred in law when they held that there were no fundamental and material inconsistencies between the statements of the 6th and 7th accused persons to the Police and their evidence in Court as erroneously held by the Learned Trial Judge.

2. The Learned Trial Judge and the Learned Justices of the Court of Appeal erred in law when they failed to consider the offence of Manslaughter in a case of fight amongst youths on the street/Road.

(a) It was incumbent on the learned Trial Judge and the Justices of the Court of Appeal to consider the offence of Manslaughter whether it was raised by the Defence/Appellant or not. The Learned Trial Judge and the Justices of the Court of Appeal did not also consider the defence of provocation. It is settled Law that such defence ought to have been considered before sending the appellant to the gallows.

3. The Learned Trial Judge and the Justices of the Court of Appeal erred in Law in finding the appellant guilty of murder when the prosecution had failed to prove all the essential ingredients of murder beyond all reasonable doubt.”

The only additional ground of appeal reads:-

The learned trial Judge and the Honourable Justices of the Court of Appeal erred in law to have convicted the accused/appellant of murder, when all the circumstances of the case did not lead with irresistible (sic) force to his guilt or when all the elements of murder were not proved beyond reasonable doubt at the court of trial.”

Counsel filed their briefs of argument which they relied on in the argument. Both counsel formulated issues for determination in the appeal. Counsel for the appellant formulated four issues which are as follows:

Questions For Determination

“(a) whether the trial Judge and Justices of the Court of Appeal were right to have convicted the appellant solely on the uncorroborated evidence of the 6th and 7th accused who were co-accused at the Court of Trial

(b) whether the trial Judge was justified in accepting the depositions of four deponents as Exhibits during the proceedings when there was no foundation laid in accordance with the provisions of Section 34(1) of the Evidence Act

(c) whether the failure to identify the body of the deceased to the medical officer before autopsy by a witness who knew the deceased before his death was not fatal to the case of the prosecution

In the Alternative

(d) whether the death of the deceased was caused by the alleged act of the appellant”

But Respondent’s Counsel formulated only two issues, namely:

“(a) Whether the appellant was rightly convicted and sentenced to death for the offence of murder on the evidence of the 6th and 7th accused persons who were co-accused persons and affirmed by the learned Justices of the Court of Appeal.

(b) Whether the depositions of the four deponents whose names appeared at the back of the information were properly tendered by the prosecution and rightly admitted in evidence by the learned trial Judge.”

This court has advised counsel formulating issues for determination in an appeal to bear constantly in mind that the only issues relevant for determination are those which fall within the grounds of appeal filed and are deducible from the grounds of error alleged. Any issue raised which is not related to any of the grounds of appeal cannot be regarded as an issue which falls for determination.

For instance the second of the appellants’ and respondents’ issue for determination which raised the justification in accepting the depositions of four deponents as exhibits during the proceedings without a foundation having been laid, is not a main issue traceable to any of the three original grounds of appeal or the additional ground of appeal, filed. It is a well known practice that appellant can only argue the grounds of appeal filed and no other except with leave of this Court.

The grounds of appeal filed in this court is not substantially different from the grounds of appeal filed and argued in the court below.

Counsel for the appellant abandoned the second ground but argued the grounds of appeal separately and seriatim.

Counsel submitted that the conviction of appellant by the trial judge and its affirmation by the Court of Appeal were based solely on the evidence of the 6th and 7th accused persons believed by the trial Judge. It was pointed out that it was apparent on the record that at the close of the case of the prosecution, in the words of counsel, ‘there was no iota of evidence against the appellant’. It was submitted that it was the evidence of the 6th and 7th accused in their own defence that incriminated the 1st accused/appellant. Counsel criticised the finding of the trial Judge that the evidence of 6th and 7th accused persons on oath, and to the Police were consistent and made at the earliest opportunity when each of them disappeared after the commission of the offence and were found only after two and three months, respectively of evading arrest to make the statements credited to be consistent. Their statements can therefore not be said rightly to have been made at the earliest opportunity.

Counsel argued that the trial Judge did not find any corroboration of the evidence of the co-accused, and that in the peculiar circumstances it was not sufficient for the Judge merely to say that he had warned himself of the dangers of convicting on such evidence. Since this was the only evidence relied upon by the court it was difficult to hold that the prosecution proved the offence against the accused: See William Idahosa & anor. v The Queen (1965) NMLR. 85; Prater v R. 44 C.A.R. 83; Ukut v The State (1965) 1 All NLR 306 at 311.

It seems to me that the main plank upon which the Court of Appeal rested its decision affirming the judgment of the trial Court was on the evidence of the 6th and 7th accused persons who were charged together with the appellant for committing the offence of murder. As the Court pointed out, ‘there is no dispute whatever that without the evidence of 6th and 7th accused, the appellant could not have been convicted of the murder of Monday Mozea ….’ Thus, the court relied on the evidence of appellant’s co-accused persons for his conviction. The evidence of the 2nd and 3rd prosecution witnesses were regarded as ancillary and probably corroborative.

The Court relied on section 177(2) of the Evidence Act and Badmus v. Police (1948) 12 WACA. 361; R. v. Agwunna (1948)12 WACA. 456; R. v. Asaba (1961) 1 All NLR 673; Ukut & ors v. The State (1965) 1 All NLR 306 to hold that the evidence of a co-accused shall not be regarded as that of an accomplice for the purpose of the statutory warning required by section 177(1) of the Evidence Act. This court so held in Queen v. Onuegbe & 3 ors (1957) 2 FSC. 10. The Court of Appeal relying on The State v. Idahosa (1965) NMLR. 85 and Adeyeye v. The State (1968) NMLR 48 has stated that where a co-accused in a trial gives incriminating evidence the trial Judge should warn himself if acting on such evidence.

It is pertinent to construe the provisions of section 177(2) of the Evidence Act, Cap.62 relied upon, and to consider the cases decided on that section in their application to the case before us. I have already set out the relevant evidence of the 6th and 7th accused persons. Now section 177(2) provides:-

“Where accused persons are tried jointly and any of them gives evidence on his own behalf which incriminates a co-accused the accused who gives such evidence shall not be considered to be an accomplice.”

The words of this section are clear and unambiguous. They provide that a co-accused shall not merely by that fact be regarded as an accomplice. I do not think it should be construed to mean that even where the participation of the accused makes him on the facts in fact an accomplice in the commission of the offence, he ceases to be so merely because he gave evidence in his own behalf incriminating a co-accused in a joint trial. This appears to be the effect of R v Onuegbe (1957) 2 FSC 10. In R v Onuegbe (supra), Ejembi, who gave evidence incriminating the other accused persons was not tried jointly with them and was therefore not a co-accused. Again there was no evidence of a common design among the four accused persons. Ejembi who gave the incriminating evidence was not a co-accused of the other accused persons; although he was in law an accomplice because he went with the others to steal the yams. His evidence required corroboration. The Court was of the opinion that a warning was not necessary in respect of the evidence of the 1st appellant incriminating the 4th appellant. Similarly it was held in I.G. of Police v. Akinbayode (1958) WRNLR 161.

In Ukut & ors v The State (1966) NMLR 18, this Court observed that notwithstanding that neither corroboration nor warning was necessary in relying on the evidence of a co-accused, caution was necessary in relying on the evidence because such a witness has his own interest to serve – See also Badri v Police (1968) NMLR 448. Thus in Ukut & ors v The State (supra) the practice became established that though the evidence of a co-accused is not to be regarded as the evidence of an accomplice it does require corroboration or warning. See Ogundipe & ors v Queen (1954) 14 WACA 458.0bviously, a co-accused is a person who has his own purpose to serve. The evidence of such a witness however must be suspect and regarded with considerable caution. In Idahosa & ors v The Queen (1965) NMLR 85, the 5th and 7th prosecution witnesses were at a stage charged with the appellants for the offence of murder. They gave evidence incriminating the other accused persons. This court held:

“are of the view that in these circumstances the evidence of the 5th and 7th prosecution witnesses ought to be regarded with considerable caution, and the trial court should have been wary in reading a verdict of guilt on the uncorroborated evidence of such witness.”

The court, however, appreciated the risk of an unrestrained admission of the evidence of this category of witnesses who are neither accomplices or non-accomplices whose evidence cannot be totally free from suspicion. They are akin to the tainted witness formulated in R v Omisade & ors (1964) NMLR 67. This Court had occasion to deal with the situation in Ukut & ors v The State (1966) NMLR 18, where Bairamian gave the principles to be followed. He said:

“It is prudent for the trial Judge to remind the jury or himself of the need for caution in regard to any witness, including a defendant who has an interest to serve. Sub-section (2) (of section 177) does not debar the judge from treating a defendant’s evidence as the facts of the case may require. There is no hard and fast rule, but the judge is expected to act with good sense, and the appellate court may think that his lack of caution led to substantial miscarriage of justice in a given case …

The judicial attitude therefore despite the clear words of section 177(2) of the Evidence Act is that although the evidence of a co-accused incriminating another is not to be regarded as the evidence of an accomplice which requires corroboration, to be relied upon it was necessary to find corroboration outside the evidence of the accused person. In Madayi and Sokoto v The State (1968) 1 All NLR 116, where the learned trial Judge before convicting on the evidence of a co-accused found corroboration in two prosecution witnesses, this court said:

“Here the Judge did say that the seventh accused was an innocent man; indeed he found him guilty of the offence for which he was charged on his own confession and convicted him accordingly. What the Judge said was that he was truthful and reliable. Section 177(2) of the Evidence Act provides that his evidence should not be regarded as that of an accomplice for the purpose of the statutory warning and we think that having adopted the cautious approach recommended in Ukut’s case the Judge was right in concluding that the evidence of the seventh accused confirmed that of the second and third prosecution witnesses.”

The court went on to pronounce on the desirability of corroboration and said:

“We will only add that the Judge also believed and accepted the evidence of the second and third prosecution witnesses and that provided he warned himself properly on the question of corroboration which clearly he did, he would have been entitled, as the learned Director of Public Prosecutions has submitted, to convict the appellants on the evidence of these two witnesses.” Here, it could be seen that the court, was in considering s.177(2) speaking of the evidence of a co-accused incriminating an accused being corroborated by the evidence of prosecution witnesses. Counsel to the appellant had rightly pointed out in this appeal that the trial judge did not find any evidence in corroboration of the evidence of the 6th and 7th accused, which standing on its own was not sufficient to support the conviction. The evidence of the 2nd prosecution witness the only other eye witness did not identify the 1st accused as one of those who assaulted Monday Mozea, has not improved upon the burden of proof on the prosecution. Thus the conviction stands only on the evidence of the 6th and 7th accused which independently require corroboration.

It is conceded of course that there is no common law rule of general application that evidence of a witness which is itself suspect for a reason which calls for a warning of the danger of convicting on it unless it is corroborated, is incapable in law of amounting to corroboration of the evidence of another suspect witness whose evidence is also suspect for the same or any other reason which calls for a similar warning – See D.P.P. v Hester (1973) 57 Cr. App. R. 212. This general common law rule does not apply to mutual corroboration. This is because (i) one accomplice cannot corroborate another where each is an accomplice of the accused in the same crime, (ii) the unsworn evidence of a child cannot corroborate the unsworn evidence of another child. In D. P.P. v Kilbourne (1973) 57 Cr.App.R.381, the general principle that accomplices cannot corroborate each other was accepted. The observation as to possible exceptions do not apply to the instant appeal.

-LIn Oyediran v Republic (1967) NMLR.122 at p.117 which concerned a charge of forgery. the 1st and 3rd appellants gave evidence as to the part played by the 5th appellant in the preparation and ‘processing’ of the forged payment voucher on which counts 5.6 and 7 were based. There was no independent evidence of someone else not an accomplice against the 5th appellant in respect of these counts. The Supreme Court relying on Ukut & ors v The State (supra) pointed out that section 177(2) of the Evidence Act will not operate to avoid the necessity of corroboration of the evidence of a self-confessed accomplice. It was also pointed out that the learned trial Judge having failed to consider this aspect of the case, the convictions of the appellants on counts 5, 6, and 7 must be quashed.

The decision of Enitan v. State (1986) 3 NWLR (Pt.30) 604 cited by counsel for the Respondent is only authority for the view that evidence on oath by a co-accused is evidence against another accused it believed. That case emphasized that such evidence is suspect. The issue of corroboration vel non which is the crucial factor in the instant appeal was not discussed. Counsel to the Respondent is therefore in error to assume that corroboration of the evidence of a co-accused incriminating another is never required because s.177(2) of the Evidence Act has stated that he is for that purpose not an accomplice whose evidence requires corroboration. The evidence of the 6th and 7th accused could not corroborate each other.

The learned trial judge in this case was wrong not to have found corroboration. The Court of Appeal was itself also wrong to have supported the conviction of the appellant in the absence of corroboration. Recently in Mbenu v The State (1988) 3 NWLR. (part 84) 615, this court has held per Nnamani J.S.C. at pp.625-626 that the evidence of a tainted witness should be considered with considerable caution and be examined with a tooth comb. It was stated quite clearly that trial courts should be wary in convicting on the evidence of tainted witnesses without some corroboration” See also Isholo v State (1978) 9-10 SC.81, State v Okolo (1974) 2 SC.73, 82. It was added that it is prudent always for the trial judge to warn himself as in the case of an accomplice, before relying on and convicting on the evidence of a co-accused. It is not the evidence per se, but such evidence if believed that should require corroboration.

This ground of appeal therefore succeeds. It is more convenient to consider together the original ground 3 and the additional ground of appeal. The substance of both grounds of appeal is that the prosecution did not prove the charge against the appellant beyond all reasonable doubt. I have already set out these grounds of appeal in this judgment. It is only necessary for me to consider the grounds of appeal. I should point out at once that learned counsel for the appellant sought and was granted leave to abandon particular (a) of the additional ground of appeal. The application was granted and particular was accordingly struck out.

I have stated that the gravamen of these grounds of appeal is the failure of the prosecution to prove the case alleged against the Appellant. This is entirely a ground of law founded on sections 286, 287(1) of the Criminal Procedure Law, and section 33(5) of the Constitution 1979. Although Counsel did not raise these points in argument before us, they are so fundamental to the validity of the trial that an appellate court ought not to ignore it. This is so even if counsel were not invited to argue the point before us. It is a point the court is entitled to take suo motu. – See Oloba v Akereja (1988) 3 NWLR. (Pt.84) 508 Odiose v. Agho (1972) 1 All NLR (Pt.1) 170; Bronik Motors v. Wema Bank Ltd. (1983) 1 SCNLR. 296 Oloriode v. Oyebi (1984) 5 SC.1.

Sections 286 and 287(1) of the Criminal Procedure Law, Cap 49 provide in part, as follows-

“286. If at the close of the evidence in support of the charge it appears to the Court that a case is not made out against the defendant sufficiently to require him to make a defence the Court shall, as to that particular charge discharge him.

287(1) At the close of the evidence in support of the charge if it appears to the Court that a prima facie case is made out against the defendant sufficiently to require him to make a defence the court shall call upon him for his “…The ordinary interpretation of these sections appear to impose on the Court the obligation to apply these provisions where the accused makes a submission that the prosecution has not made out a case for him to answer, or where the court suo motu takes up the point and if it discovers that the prosecution at the close of its case has not proved the essential ingredients of the offence, to discharge the accused – See Ajidagba v I.G.P. (1958) 3 FSC.5.

It is well settled that in addition to failure to prove essential ingredients of the offence, the case of the prosecution may fail and the accused not required to defend himself if the evidence is so manifestly unreliable having been destroyed by cross-examination of the witnesses that no reasonable tribunal will convict on that evidence – See Daboh v State (1977) 5 SC. 197.

In the light of the constitutional provision of the presumption of innocence in section 33(5) it seems to me and this has been held in Mumuni v The State (1975) 6 SC. 79 that these decisions which hold that where a submission of no case to answer is wrongly overruled and the accused subsequently gives evidence in his own defence and supplies the hitherto missing ingredients required for his conviction and is convicted consequently, the conviction will be regarded as valid and not be set aside on appeal; are no longer good law. See R v Ajani (1936) 3 WACA. 3, Eregie v Police (1954) 14 WACA. 453.

In my opinion a submission is wrongly overruled if when the ruling was made calling upon the accused to make his defence to the charge the evidence presented by the prosecution was not sufficient to require the accused to make his defence. It is both the constitutional duty imposed on the Court, and the right conferred on the accused by the constitution to ensure the purity of our criminal justice administration that the presumption of innocence of the accused is maintained inviolate. Accordingly even where the point was not taken by the accused or his counsel, being fundamental to the jurisdiction of the court it should be taken by the Court. – See Oloba v Akereja (supra), Odinse v Agho (supra). It must be pointed out in this case that every proceeding subsequent to the violation of the provisions of s.33(5) of the Constitution is void having been conducted without competence – See Madukolu v. Nkemdilim (1962) 1 All NLR. 587. I have already pointed out and set out in this judgment the provision of s.33(5) which provides for the presumption of innocence. Under our law, it is not for the accused to prove his innocence. The burden is on the prosecution to establish the case against the accused beyond reasonable doubt. These propositions establish that where no case has been made out against the accused at the end of the case of the prosecution, asking him to answer the charge against him is a reversal of the constitutional provision by asking him to establish his innocence – See Mumuni v. the State (1975) 6 SC. 79, Daboh v. The State (supra).

In re Maiduguri (1961) 1 All NLR. 673, Ademola CJF, confronted with the situation declared:

To put the position clearly, if at the close of the case of the prosecution, a submission of no case to answer was wrongly overruled and the case continued resulting in the conviction of the accused, an appeal against the conviction resulting from the proceedings will succeed.”

The learned trial Judge in this instant case discharged the 3rd accused at the close of the case for the prosecution on the ground that the 2nd P. W. said in his evidence that he did not see any female among the assailants of the deceased. The evidence of the 2nd P.W. that he did not see any of the accused persons or could not identify any of them as among the assailants of the deceased remained the only evidence about the assailants and against the accused including appellant till the close of the case of the prosecution. Thus at the end of the case for the prosecution, none of the accused persons was identified as one of the assailants of the deceased. The trial Judge was at this stage under a constitutional duty to discharge all the accused persons: But he did not do that. Rather what he did was to call upon them to make their defence; this was an invitation to them to establish their innocence.

The evidence of the 6th and 7th accused which purported to identify the appellant was given in violation of the constitutional provision of the presumption of innocence and accordingly void. It is therefore not evidence in the case.

In Daboh v The State (supra) Udo Udoma JSC stating the ratio decidendi of Mumuni v The State (supra) said,

“…. There, the decision on the aspect of the case now under consideration was that where there is absolutely no evidence against the prisoner at the end of the prosecution’s case, the court is under a legal obligation to discharge him at that stage, for to do otherwise, would be tantamount to placing upon the prisoner the onus of establishing his innocence…”

This is the position in this case. This Court will be unwittingly departing from several of its earlier decisions without justification if it should come to a contrary decision. The law is now well settled that the protection of the accused presumed to be innocent cannot be curtailed by the strength of the case founded on suspicion however strong. A conviction must be founded on evidence establishing the guilt of an accused beyond reasonable doubt. This ground of appeal also succeeds.

On the whole all the grounds of appeal succeed. The conviction and sentence of death imposed by the High Court, and affirmed by the Court of Appeal Division, Benin City, is hereby set aside. The appellant is acquitted and discharged.

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SC.48/1988