Sule Iyanda Salawu v. The State (1970) SC.219/1969

Supreme Court of Nigeria – Before

ADEMOLA ADETOKUNBO – JSC
CHARLES OLUSOJI MADARIKAN – JSC
UDO UDOMA – JSC

Parties

SULE IYANDA SALAWU – Appellants
AND
THE STATE – Respondents

Reported

– (1970) All N.L.R 107

– (1970) LPELR-SC.219/1969

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UDO UDOMA – JSC [Lead Judgment]

The appellant was tried and convicted of the murder of one Ramotu Abeoby Fakayode, J. in the High Court, Oshogbo on 22nd May, 1969. His appeal to the Western State Court of Appeal was dismissed. He now appeals to this Court on two grounds: namely:
“(i) The appeal court erred by finding that the trial court was right in refusing the application of the appellant to call a witness on the state of his (appellant’s) health. The said lower court having erred by assuming that the evidence sought to be tendered was ‘non-essential to the just decision of this case; and
(ii) by the failure of the court of trial to grant the appellant’s application to call a witness, the appellant was deprived of the opportunity of putting the whole of his defence to the court”.

At the trial the evidence given by the principal witnesses for the prosecution Amingu Oyekanmi (P.W.1), Salawu Oyeleye (P.W.2), Ayisatu Aduke (P.W.3) and Rabiatu Laroyeke (P.W.5) was to the effect that they, the deceased and the appellant all lived in Ogbagba Village and were inmates of the same house each occupying a separate room; that on the fateful night in which the deceased was murdered they all, including the deceased and the appellant, had, after supper, retired to their respective rooms to sleep. In the middle of the night the deceased was heard to cry “Sule killed me”. Attracted by the cry they all came out and saw the deceased lying dead in a pool of blood in the parlour of the house at the door leading into the appellant’s room. The deceased had a wound on her back. The appellant was not in his room then nor was he seen in the parlour. The matter was reported to the police at Ede and later at Oshogbo. The appellant was later seen with the police at the police station, Ede.

The defence of the appellant was an alibi. He testified that he knew nothing concerning the death of the deceased; that he had no previous quarrel with the deceased; that in the night in question he was at Ede and that he had slept not at Ogbagba Village but at Obara compound at Ede with his relative, a carpenter by name Raifu Ayinla; and that he was arrested by the police at Ede.

In answer to a question by the court, the appellant stated that he wanted Raifu Ayinla to be called to give evidence. Thereupon the learned trial judge made the following notes:
“Court: Case adjourned till 9 for defence. Subpoena to issue to Raifu, carpenter of Bara compound, Ede to come and give evidence about the accused’s whereabout on the night of the incident. Accused must be given facility by the prison authorities to act as pointer to police when serving subpoena.
When the trial resumed on Thursday, 10th April, 1969, the notes made by the learned trial judge read as follows:-

“The accused is present. Bakare for the prosecution. Fatoki for the accused.
Court to accused: Is this the man you called Raifu, Carpenter?
Accused: Yes, he is. Witness called by Court:

Whereupon Raifu Ayinla, having been duly sworn, gave evidence as a witness called by the court. He was cross-examined by both the counsel for the prosecution and the counsel for the defence and re-examined by the court. In answer to a question put to him by the counsel for the defence, Raifu Ayinla said:
“The accused was sick before this incident occurred. He had fever.”
Under cross-examination by the court he said:
“The accused did not sleep in Gbara compound, Ede the night of the incident. But he came to Gbara compound early in the morning of the day following. He came nakedly. Then the police came to search for him and took him away.”

On the conclusion of Raifu Ayinla’s evidence, counsel for the appellant immediately applied, under section 200 of the Criminal Procedure Act, to have Salawu Oyeleye (P.W.2), described as the father of the appellant, who had already given evidence for the prosecution, to be recalled for cross examination as to the condition of the health of the appellant at the material time when the crime was alleged to have been committed. The application was opposed by counsel for the respondent and refused by the court.

In rejecting the application the learned trial judge said inter alia:
“I do not know what is meant by good health. Certainly this is not a matter of insanity because the accused gave evidence before me in the most rational manner. Power to recall a witness will be exercised if it is necessary for the ends of justice, e.g. where an important issue crops up unforeseeably.