Alfred Onyemena & Anor V. The State (1974)

LawGlobal-Hub Lead Judgment Report

S. SOWEMIMO, J.S.C. 

The appellants were convicted on the 22nd of December 1971, on a charge of murder after a trial by jury and sentenced to death by Kazeem, J., at the High Court, Ikeja, in the Lagos State. Their appeal against conviction was allowed on the 4th of October, 1973.At the hearing of their appeal, Mr. A. O. Ejiwunmi, learned D.P.P for the Lagos State informed the court that he could not support the verdict of the jury on two grounds:-

(1)   there was no sufficient evidence to support the charge in view of the many inconsistences and discrepancies in the evidence of prosecution witnesses; and

(2)   the identification parade was to say the least not properly conducted, because the appellants were wearing the same dresses  they had on when they were arrested by the Police at the instance of the 1st prosecution witness. The 1st, 2nd and 3rd prosecution witnesses were able to point them out at the time of their arrest by these same dresses.

The case for the prosecution was that, on the material date, which is 21st April, 1970, the appellants were alleged to have entered a bakery at 28 Olumokun Street, Amukoko Village, Ajegunle, at about 3 a.m. There were four people in the bakery at the time and these are the 1st, 2nd and 3rd prosecution witnesses and one Aremu Mufu now deceased. Whilst there it is alleged that the second appellant entered the bakery armed with a knife. He was followed almost immediately by the 1st appellant who was alleged to be in possession of what was described as a shot-gun. The witnesses gave evidence of the dresses worn by the appellants when they entered the bakery, but their descriptions varied in material particulars. There were also inconsistences in the version of what took place that morning when the appellants entered the bakery. They agreed on one point, however, and that was that the 2nd appellant on entering the bakery ordered the three prosecution witnesses and the deceased to put up their hands. According to the 1st prosecution witness, they obeyed the order but they started to shout for one Corporal Awudulaii, who was described as a soldier living in the same compound as the bakery. The appellants took fright at the shoutings and ran out of the bakery. On getting outside the appellants were alleged to have closed certain window shutters. The witnesses all agreed that they then heard a gun-shot fire and noticed that Mufu fell down there shouting that he had been shot. No evidence was led directly or otherwise as to who fired the fatal shot. He later died from his wound. The 1st prosecution witness said that he ran out to see from where the gun-shot fire had come and noticed the two appellants running away; they were never chased.

The 2nd prosecution witness, said that the 2nd appellant, after ordering them to put up their hands, gave order that the 1st appellant should take them out from the bakery one by one and have them shot dead. According to her, the 1st prosecution witness begged and asked the appellants to take away all the bread in the bakery as they had not made any sale that morning. In spite of what the 2nd prosecution witness said that the 2nd appellant ordered the 1st appellant to do, nothing seems to have happened and, when they started to shout in unison for Corporal Awudulaii, the 2nd appellant followed by the 1st appellant ran out. She agreed with her husband that the window of the bakery was shut and that later a gun-shot fire was heard. Unlike her husband, however, when this happened, she ran out and escaped through the fence surrounding the bakery, she did not see the appellants outside the bakery at all.

The next stage of the evidence was that the 1st prosecution witness alleged that, on the day following the incident, he saw some police officers with three men, and that he recognised the 2nd appellant as being one of the two persons who entered the bakery on the morning of the 21st of April, 1970. He further stated that he did not see the 1st appellant at any time after the incident until he was called upon to identify him as the Panti C.I.D.

The evidence of the police constable who arrested the two appellants at different times and in different places was inconsistent with the evidence given by the 1st prosecution witness; first, the 2nd appellant was arrested in a house at a praying meeting which he was conducting with a bible in his hand. The 1st appellant was then arrested along with two others in a room which they alleged they shared together, each carrying on his own trade. The two others were released because, according to the police, they were able to satisfy them that they were in fact carrying on the trades they alleged. As the 1st appellant was unable to give a satisfactory explanation, he was suspected to be one of those who must have visited the bakery on the morning of the 21st of April, 1970. There was no evidence whatsoever to show that the two appellants had knowledge of each other; as a matter of fact, the prosecution impliedly admitted the explanation that the two appellants were complete strangers to each other.

The appellants, in their defence, denied the allegations that they ever visited the bakery as alleged, or that they were ever armed at any time or that they fired any gun.

Curiously enough, throughout the whole case of the proseuction, no knife or shot-gun was ever alleged to have been found either in the possession of the appellants or anywhere else, nor was any knife or shot-gun tendered in evidence.

The learned trial judge, in a very careful summing up directed the jury on the evidence led both for the prosecution and the defence, said:-

“But you have also heard that all the 1st to 4th P.W. have consistently described the 2nd accused as wearing a pair of white shorts or pants and a shirt torn on the shoulders which was not buttoned; and except that he tied his head with a piece of cloth at the time 2nd accused came to their bakery, they said that he was wearing the same dress when he came to the bakery as the one he wore when he was arrested as shown in the photographs of the identification parade which you have already seen.

Apart from the inconsistencies in the descriptions, other inconsistencies and contradictions which were mentioned were:

(i)    that although, 2nd, 3rd and 4th PWs said that the accused persons were told when they came to the bakery that they had no money on them and that the accused person could eat as many loaves of bread as they liked, yet the 1st P.W. himself did not say that during his evidence before you;

(ii)    1st and 2nd P.W. told you that the wound which they saw on Aremu Mufu was on the right side of the ribs, whereas both Corporal Abdulaii (P.W.7) and John Osigwe (P.W.9) said the wound was on the left side and their evidence was corroborated by the Pathologist Report – Exhibit G.

(iii)   Amodu Biu (P.W.8) told you that 2nd accused was identified near the bakery by the 1st P.W. before two other suspects were arrested; but both Corporal Abdulaii and John Osigwe said that it was after two other persons had been arrested with 2nd Accused.

(iv)   1st P.W. told you that he never identified 1st accused near his bakery after his arrest on 22.4.70 but John Osigwe said he did.

Gentlemen of the Jury, you have seen and heard all the prosecution witnesses and you have watched their demeanors. It is for you to consider whether all the inconsistencies and contradictions were substantially material so as to raise any doubt in your mind as to the guilt of the accused persons. Learned counsel for the prosecution have told you that they were immaterial, but it is a matter entirely for you as judges of fact to consider their materiality or immateriality. If after doing that, you do not feel sure that the prosecution has satisfied you as to the guilt you are entitled to hold that the two accused persons are not guilty of the offence of murder.

On the question of the propriety of the identification of the accused persons, there were two identifications mentioned in this case. The first was the informal identification of 2nd accused near the bakery by the 1st P.W. and the second was the identification of the two accused persons at Panti Street, Yaba on 24.4.70. In law, although it is considered improper by the police to show to witnesses who are to be called to identify suspects before hand, it was held in a case of the King v. Adenijimah & Anor. 8 WACA 193 that where the police showed the photographs of the accused persons to a witness prior to an identification parade but the witness had however had ample opportunity of studying and knowing the appellants at an interview with them in broad daylight, it was held that the procedure did not vitiate the evidence of identification as the witness had ample opportunity of identifying the appellants before he was shown the photograph.

It was submitted to you by learned counsel for the accused persons that the informal identification was improper because it was the policeman John Osigwe who called out 1st P.W. to identify 2nd accused near his bakery. They said that pointing an accused person out to an identifying witness is stronger than showing him the photograph of the accused person. But you have heard 1st P.W. himself say that he was sitting near his bakery when he saw 2nd accused being taken away with two others by John Osigwe when he pointed him out as the man who came to his bakery the previous night holding a knife. 1st P.W. even recognised 2nd accused as wearing the same dress on that day as the one he wore when he came to the bakery. It was also submitted to you that the formal Identification Parade at the C.I.D. Office, Panti Street, Yaba, was improper because two persons could be seen in the photographs taken at the parade as sitting or standing behind the window of an office, and that those two persons could have interfered with the conduct of the parade.

I referred to this matter when reviewing the evidence of Gabriel Okedairo (P.W.6) the Sub-Inspector of Police who conducted the identification parade. I told you that the Sub-Inspector agreed that a man was seen in the photograph as sitting in an office behind the identification line; but he told you that he was not aware that the man was there. Again Gentlemen of the Jury, it is for you to consider whether that man or anyone else could have interfered with the conduct of the identification parade.

If after considering the evidence about the identification of the accused persons, you feel sure that the prosecution has satisfied you about their identification, then you are entitled to find “that they were properly identified as the two men who visited the bakery at Olumokun Street, Amukoko village on 20th April, 1970, with a view to rob.

Let me remind you that there is no evidence before you as to who fired the shot that killed Aremu Mufu. All that the prosecution relied upon is circumstantial evidence of 1st and 2nd P.Ws. which I shall now tell you.

You will recall from the evidence you have already heard that it was 1st P.W., Mojidi Sumola, who said that after a gun was fired through the window and Aremu Mufu was hit, and he fell down, he went out immediately and he saw the two accused persons running away. If indeed you believe this piece of evidence, you may want to say that it was one of them that fired the fatal shot into the bakery or you may even go so far as to say that it was the 1st accused who was previously seen inside the bakery with a gun that fired the fatal shot. If you come to that conclusion and you feel sure that the prosecution have established the case against the accused person, then you are entitled to convict the 1st accused for the murder of Aremu Mufu. With respect to the 2nd accused also, you may also want to consider what I had already told you on common purpose and common design to rob the bakery on that fateful night and it would not matter that the 2nd accused did not know or expected the 1st accused to fire the fatal shot. If you come to that conclusion, you will be entitled too to convict the 2nd accused of the charge of murder of Aremu Mufu once you return a similar verdict on the 1st accused.

However, the prosecution have not told you how it was possible for the 1st P.W to identify the two persons he saw running away as 1st and 2nd accused persons if he ever saw anybody running away at all. The prosecution have not also said that there was light outside the bakery as it was inside it, and you must direct your mind to the fact that the place outside the bakery must be dark. If you do not feel sure that the prosecution had established that the two accused persons were sufficiently and properly identified by the 1st P.W as those he saw running away or if you have some doubt that they might not have been the two persons he saw if ever he saw anybody at all, then you must resolve  the doubt in favour of the accused persons and return verdict of Not Guilty of murder of Aremu Mufu against them.
With respect to the 2nd P.W it was she alone who said that she saw the 1st accused go out and close the window before he fired into the bakery a gunshot which killed Aremu Mufu. If you believe her and accept her evidence and you feel sure that the prosecution had established the case against the accused persons in other respects then you will be entitled to convict the 1st accused for the offence of murder for which he stands charged. Also since both accused persons had common design to rob the bakery and the 2nd accused knew that the 1st accused was armed with a gun for that purpose which he used with fatal effect, you will equally be entitled to convict the 2nd accused for the offence of murder for which he stands charged.

But perhaps you may ask yourselves whether it was possible for this witness who obviously was too frightened, to go out at all. She was all the time raising an alarm and calling on the Army Corporal for help. She had not told you that she went out immediately. How then could she be able to see the 1st accused from inside the bakery closing the window outside it before firing the fatal shot If you think that those were possibilities, which as such had raised some doubts in your mind, you must indeed resolve those doubts in favour of the accused persons and return a verdict of Not Guilty of Murder against them.”

The learned trial judge also told members of the jury that they are judges of facts. He warned that the circumstances of this case would create some doubts in their minds as to the guilt of the appellants. The jury, however, returned the verdict of guilty against the appellants. At the hearing of the appeal, we found no difficulty in agreeing with the learned counsel for the appellants and with the learned D.P.P. that the verdict of the jury in this case was definitely perverse.

The Lagos State remains the only territory where the jury trial in case of capital offences still obtains. This system of jury trial is absolutely foreign to Nigeria Customary law. May we at this stage refer to the series of  lectures entitled ‘Trial by Jury’ delivered by the Hon. Sir Patrick Devlin. In dealing with the origin of the jury system he stated as follows:-

“No Seperation of Powers”

“I shall say a little more about this later period of change when I come to consider the extent of the jury’s present function as judges of the facts. Meanwhile in the history of the early period, will you note two things which especially contribute to an understanding of the way the jury works today The first is that judge and jury were never formally created as separate institutions; there was never any separation of powers, never any conscious decision by anyone that questions of law ought to be decided by lawyers and those of fact by laymen. The jury derived all its powers from the judge and from his willingness to accept its verdict; even now, if he were to refuse to do so, he would offend against no statute and his judgment would be good until reversed by a higher court. In theory the jury is still an instrument used by the judge to help him to arrive at a right decision; from the first and, as you will see throughout its development, the judges have kept the jury to that nominally surbordinate role. The verdict has no legal effect until judgment is entered upon it. The jury’s function was always, and still is, simply to answer the question so that judgment may be given. Its place in the trial has become important not because it has been granted or usurped additional powers but simply because the coming of rational methods of proof has given to the task of fact-finding an importance un-recognised by thirteenth-century judges; if they had recognised it, they would probably have kept the task for themselves. We talk nowadays of the province of law and the province of fact almost as if they were separate jurisdictions, and sometimes of judges encroaching on the jury’s province. No doubt the easiest way of explaining the modern relationship between judge and jury is to start from the hypothesis that the law is for one and the facts for the other. But you will find that judges have a good deal to do with the facts and you must not think of them simply as invaders on territory to which they have no title.’

“No Reasons”
“The other point is that the origin of the jury’s verdict explains a unique feature of it that is still of the first importance. Judges give their reasons, either so as to satisfy the parties or because they themselves want to justify their judgments. Even arbitrators detail their findings of fact. The jury just says yes or no. Indeed, it is not allowed to expand upon that and its reasons may not be inquired into. It is the oracle deprived of the right of being ambiguous. The jury was in its origin as oracular as the ordeal: neither was conceived in reason: the verdict, no more than the result of the ordeal, was open to rational criticism. This immunity has been largely retained and is still an essential characteristic of the system.”

Trial by jury has been imposed upon Lagos society. It has not kept pace with developments. The result has been that, in many cases, verdicts have often been given more as a matter of sentiment than of reasoned consideration that should form part of the verdict. In the circumstances, one would suggest that, in a country of 12 States which is deemed to be one country and which permits a system of jury trial in one state and another system in the remaining 11 States, a homogenous system should be introduced for the whole country. That would be a valid reason why this foreign system of trial by jury which is not part of the customary law should be abrogated completely in the Lagos State.

We have dealt with this appeal at great length in order to point out the desirability of removing a system which has out-lived its usefulness if it ever had one, and which has not been accepted by the society as a means of achieving a fair trial.

For the foregoing reasons we allowed the appeal.

Other Citation: (1974) LCN/1967(SC)