Ananaba Ohuka & Ors V. The State (No.2)
LawGlobal-Hub Lead Judgment Report
G. O. AGBAJE, J.S.C.
The appellants, Ananaba Ohuka, Ukachukwu Onyegbule, Boy Ogbuchi, Chika Uwadineke, Enyinnaya Uwadineke, Onuoha Nwosu and Peter Sabi stood trial along with three others in the High Court of Justice of Imo State sitting at Umuahia for the offence of murder contrary to Section 319(1) of the Criminal Code. The particulars of the offence with which the accused persons were charged said that they on or about the 5th day of November 1978 at Umunwanwa Umuopara in the Umuahia Judicial Division murdered one Okebugwu Nwosuagwu.
The case was tried by Ononuju, J. and the trial commenced on 22nd June, 1979. The 1st-7th appellants were the 1st, 3rd, 4th, 5th, 6th, 8th and 10th accused persons respectively at the trial Court, the other accused persons being the 2nd, 7th and 9th accused persons. At the close of the case for the prosecution on 28/10/80, further proceeding was adjourned till the following day 29/10/80. On that day counsel for the accused persons except the 1st accused began a no case submission on their behalf.
The learned trial Judge having listened to all the submissions on behalf of the accused persons and the reply of the learned State Counsel to them gave his ruling on the submissions in two parts. On 6/11/80 at the end of all the submissions he upheld the no case submission on behalf of the 2nd and 7th accused persons, discharged and acquitted them and then reserved ruling on the submissions on behalf of the other accused persons till 8th November, 1980. In his ruling given on the latter date, he overruled the no case submissions made on their behalf and then called on them i.e. the 3rd, 4th, 5th, 6th, 8th, 9th and 10th accused persons to make their defences.
There is no doubt that the learned trial Judge correctly directed himself as to the principles applicable to the consideration of a no case submission when he said as follows in his ruling:-
“In a Practice Directory dated 9th February, 1962 the Queens Bench Divisional Court laid down that “a submission that there is no case to answer may be properly made and upheld –
(a) where there has been no evidence to prove an essential element of the offence charged.
(b) when the evidence adduced by the prosecution has been so discredited as a result of cross examination or is so manifestly unreliable that no reasonable tribunal could safely convict upon if’. The Divisional Court went further to say “apart from these situations a tribunal should not in general be called upon to reach a decision as to conviction or acquittal until the whole evidence which either side wishes to tender has been placed before it.”
A submission of no case means that there is no evidence on which the court could convict even if Court believed the evidence given.
Because of the issue arising for determination in this appeal reference should also be made to the case of Gafari Ajidagba and 4 ors. v. Inspector General of Police 3 F.S.C. 5 at page 6 where it was said in this regard as follows:-
“A decision to discharge an accused person on the ground that a prima facie case has not been made against him must be a decision which, upon a calm view of the whole evidence offered by the prosecution, a rational understanding will suggest;”
Only the 1st accused gave evidence in his own defence. Counsel for the other accused persons indicated that they would rest the case of their clients on the no case submission. Although none of the accused persons went into the witness box to give evidence it can be said that they participated in the proceedings after the no case submissions on their behalf had been overruled for their counsel cross-examined the 1st accused in the witness box on their behalf. However nothing turns on the latter as will hereinafter appear. At the end of the day, the learned trial Judge convicted the 1st, 3rd,4th, 5th, 6th, 8th and 10th accused persons of the offence of murder with which they were charged and they were sentenced to death. He found the 9th accused person not guilty of the offence charged and he was accordingly discharged and acquitted.
The 1st, 3rd. 4th, 5th, 6th, 8th and 10th accused persons appealed unsuccessfully against their convictions and sentences to the Court of Appeal, Enugu Division. They have now appealed further to this court against their convictions and sentences. The preliminary issue in this appeal as to whether the appeal of each of the accused persons to this court was within time or not was resolved in favour of the accused persons. True, the judgment of the Court of Appeal dismissing the appeals of the accused persons was given in their absence on 9th September, 1985. The notice of appeal of each of the accused persons was dated 10th December, 1985, suggesting that the appeal could not have been lodged within the statutory period of 30 days from the date of the judgment prescribed by section 31(2)(b) of the Supreme Court Act 1960 for an appeal against the judgment. Section 31(4) of the Act prohibits an extension of time within which to lodge the appeal in an appeal of this nature. But it transpired that the accused persons did not get notice of the result of their appeal at Port Harcourt prison where they were kept until 9th December 1985. For the notice was sent initially to the wrong address i.e. Owerri Prison and this accounted for its delay in reaching the accused persons before 9th December 1985. So relying on the decision in Ohuka & ors. v. The State (1988) 1 N.W.L. R. Part 72 p.539 it was decided that time within which the accused persons were to appeal against their convictions and sentences would not begin to run against them before 9th December 1985. As notices of their appeal were lodged on 10/12/85, the appeal of each of them was held to be competent.
Having spoken about the preliminary issue raised in this appeal, I can now go on to the consideration of the appeal of each of the appellants on the merits. Mr. F. O. Akinrele S.A.N. who appeared for all the appellants filed a joint brief of arguments on their behalf and Mr. L. M. Amadi, Legal Adviser Public Prosecutions Division, Owerri, Imo State filed a brief for the respondent. The issues calling for determination in this appeal arising from the grounds of appeal in the appeal have been clearly and, in my view, correctly, set down in the appellants’ brief of arguments as follows:-
(a) Was there sufficient evidence before the learned trial Judge to hold that there was a prima facie case against the appellants at the time the prosecution closed its case
(b) If there was none is the subsequent evidence of the 1st appellant admissible against the appellants particularly after they have rested their case on the prosecution case by not further participating (in) the trial
(c) Was there sufficient warning in respect of all matters likely to affect the verdict of the court having regard to the fact that the 1st appellant was in any case an accomplice
Mr. Amadi, Legal Adviser Imo State who appeared for the State has not in the respondent’s brief of arguments qualified in any way the issues arising for determination as identified in the appellant’s brief of arguments. So I will stick to these issues and I don’t consider it even necessary to refer to the grounds of appeal again.
In the light of the issues arising for determination in this appeal it will be expedient to state in some detail the evidence adduced by the prosecution against the appellants at the trial Court. I have stated earlier on in this judgment which accused person each of the appellants was at the trial Court. I will hereinafter in this judgment identify each appellant by reference to which accused person he was at the trial Court.
The evidence led by prosecution at the trial of the accused persons ran as follows. There was a party in the evening of 5th November, 1978 in the house of the 6th accused person to celebrate an addition to his family following the delivery of a baby for him by one of his wives. The 6th accused person invited all the other accused persons accused of the murder of the deceased, Okebugwu Nwosuagwu, including the three accused persons discharged at the trial court to the party. The deceased too was invited to the party. All of them including the deceased attended the party. As regards the deceased, he left his house for the party on a Rudge bicycle at about 5 p.m. that day. There was much merriment which included drinking at the party which went on till well after nightfall when the light at the place went off when the generating set owned by the 6th accused and which illuminated the whole of his premises with electric light ceased suddenly to function and the ‘whole place was thrown into darkness. It was suggested in evidence that the light out was deliberately engineered by the 6th accused.
I will only observe there was no sufficient evidence pointing in this direction and then continue with the evidence I am putting down. As no alternative effective light was produced, after the electric light failure, the guests at the party took the light out as a signal that the party had come to an end even though abruptly. So all those present there that night left the 6th accused person’s house apparently in good physical well being and apparently for their respective houses.
The deceased was among the invited guests who left the 6th accused person’s house under the circumstance and in the condition I have just described. But the deceased alone among all the invited guests did not reach his house that night or again. When his wife 7th P.W. noticed his absence in their house that night and the following morning she became worried and so contacted in his house the 5th P.W. the deceased’s nephew. The latter having heard her complaint they went separately to the 6th accused person in his house and told him what had happened as regards the deceased. 6th accused person told them to continue looking for him and they then left the 6th accused to whom they returned soon after when a pool of blood was seen somewhere in the neighbourhood of the 6th accused’s house by 7th P.W. A report of the incident was subsequently made to the police that day 6/11/78.
Because it was the contention of the prosecution that the main evidence incriminating the accused persons was unearthed by the investigations conducted by the police into the case as a result of which it was established that the deceased was murdered and parts of his dead body and bicycle were discovered in various places, it will be necessary for me to quote the relevant evidence of the material witnesses in this regard in detail in order to appreciate the issues arising for consideration in this appeal in their right perspective. Accordingly, I will set down the following evidence given by the prosecution witnesses referred to.
First:- P. W.5: My name is Ephraim Ochemba Police Sgt. No. 4919 attached to Divisional Crime Branch Umuahia. I took part in the investigation of this case. I know the accused persons. On 7/11/78 Inspector Onojo led a team of Divisional Crime Branch personnel to Umunwanwa on investigation of this case. I was in the team. We executed search warrant in the house and premises of the 6th accused person…
These are the three poultry feed bags, tendered no objection admitted and marked Exhibits “K” – “K2”. The bag in which we recovered the trunk of the deceased was similar to Exhibits “K” – “K2″‘. The second search was conducted in the house and premises of the 5th accused … During the search we recovered a pair of blue trousers, one head of masquerade, an empty carton and leaves of palm fronds….The blue trousers recovered in the room of the 5th accused contained some stains which we suspected to be that of blood. We therefore parceled it in the presence of the 5th accused and sent it to Lagos for analysis. Along with the blue trousers we also parceled to Lagos pieces of cloth recovered from the latrine pit of the 1st accused and pieces of dried leaves collected at the scene of crime. These items were parceled in the presence of the 1st and 5th accused persons. They signed Form D22. This is the form tendered, no objection from the defence, admitted and marked Exhibit “P”. I and constable Edwin Mirikwe carried the parcel by hand to Oshodi Lagos and handed it over to the Senior Pathologist. Later the parcel was returned to us by registered post. We marked the items we parceled to Lagos. The items marked “A” were the pieces of cloth suspected to have contained human blood. Item “B” was the blue trousers suspected to contain human blood. Item “C” were the dry leaves with blood stains. A copy of the report from Lagos was served on the 5th accused. This is the original copy of the report, tendered, no objection admitted’ and marked Exhibit “Q”. The search was conducted in the absence of the 1st accused who was in Police custody at the time and there was nobody in his house. The compound of the 1st accused was fenced with sticks and palm fronds which was broken at the back, through which we entered into the compound.
The house of the 1st accused was also locked when we arrived at his compound. It was the odour and flies that attracted us to the room of the 1st accused. We broke the door of the 1st accused room and entered and we saw a bag similar to Exhibits “K” – “K2” from which some fluid was coming out. We dragged the bag from the 1st accused room to the premises, opened it and saw a human trunk having no legs and head. We also recovered intestines from a pit latrine behind the house of the 1st accused, some clothings from the same pit latrine. The pit latrine had thatched roof with sticks used in fencing it round. The floor of the latrine was dug up newly and full of flies. In one of the houses in the compound of the 1st accused we recovered bicycle parts. These are the bicycle parts -Id-tendered no objection admitted and marked Exhibits “X” – “X2.” These bicycle parts were recovered following an information given to me personally by the 1st accused that Exhibits “X” – “X2″ would be seen in his own ceiling.”
Second: P. W16: “I am an Assistant Superintendent of Police now attached to Force C.I.D. Lagos formerly the Divisional Crime Officer, Police Station Umuahia in 1978 – 1979. I know about this case. On 6/11/78 one Eunice Nwosuagwua P.W.7 came to my office and reported that her husband who left for a party in the house of their councilor 6th accused on 5/11/78 had not returned home. She said she made enquiries before coming to make the report. I caused an entry of his report to be made; and I detailed a team of investigators led by Sgt. Uwasomba to go to Umunwanwa village to conduct preliminary inquiries. The team came back the same day with seven accused including the 6th accused in whose house the party was held and the 1st accused. The seven accused persons were detained on that day on my own instruction while investigation continued. On 10/11/78 the 1st accused was brought to my office by the investigating police officer after the 1st accused had made a confessional statement. The statement was recorded in Ibo language and was brought to me for endorsement. I signed the statement to which the 1st accused affixed his thumb impression.
This is the statement Id.4. On 7/11/78 there was all information about flies and odour coming from different parts of the village. I therefore detailed the investigating team to go to Umunwanwa and I also accompanied them. At the village we searched parts of the village and in the process we stumbled at a pit latrine where with the aid of torchlight we saw something that looked like human intestine we picked it. I understand that the pit latrine is situate at the back of the house of the 1st accused. This discovery heightened our suspicion and the investigating team moved to the compound of the 1st accused. One of the members of the team later brought a bag from the room of the 1st accused in which we saw something resembling parts of human body. I instructed the investigators to carryon and left for the police station.”
Third: P. W.17: “I took part in the investigation of this case. I left Umuahia for Umunwanwa with P.W.11 and Pc. Ikea. When we arrived at the scene at Umunwanwa we were shown the place where the deceased was alleged to have been killed. At the scene I observed some blood stains on the grass around the bush and traces of blood on the ground and some signs of struggle. The nearest house to the scene of the crime is the house of the 6th accused, – about 50 yards away. The next thing I did was to organise the natives for a search. After some search nothing was found…
On 7/11/75. I started taking the statements of those arrested on 16/11/75 (sic) when I received some information from Umunwanwa about some unusual odour in some areas of the village which information I passed to the D.P.O. The D.P.O. detailed myself, P.W.16, Inspector Onoja, Sgt. Ochemba (P.W.8) P.W.11 and some other constables to check on the information. We left for Umunwanwa the same day and saw a crowd of people both men and women gathered. As we got closer to the crowd we perceived the unusual odour. We were shown a pit latrine where there was fresh earth. With the aid of a torch light I looked into the pit latrine and saw something that resembled small intestines. I show it to Inspector Onojo. I used bamboo stick which I constructed in form of hook with which I brought out the thing that looked like small intestines and turn part of polo black spotted shirt, some bicycle seal. This is the shirt Exhibit V identified. We saw flies around a house and still perceived the unusual odour. The room was locked with padlock we suspected the room strongly. When I brought out Exhibit V the son of the deceased shouted that it was his father’s shirt. This aroused our suspicion the more and on the order of Inspector Onojo the locked door was forced open and in the inner room of the house Inspector Onoma and Ojemba brought out a bag resembling salt bag. The bag was opened with a knife and we saw the trunk of a human being without the head and the legs. The trunk appeared to have been boiled. A big iron pot was recovered from the same room which looked oily and small magots in the pot. We suspected that the iron pot must have been used in boiling the trunk…….In the evening of 7/11/78 we took the 1st and 6th accused to Umunwanwa village for execution of search warrant in the house of the 6th accused. After obtaining statements from the accused persons on the 7/11/78 we left for a search in the houses of the 1st and 6th accused. The compound of the 6th accused faces the major road Umuahia Road. Before the Obu of the 6th accused there is a beer parlour and provision store. Both the Obu and the store are facing the road and it is an open place. The Obu has a gate. Beyond the Obu is the compound of the 6th accused. There are houses in the compound of the 6th accused which is walled round and has only one gate through the Obu and another gate at the back which is locked. KD and other Exhibits K-K2 are the birds feed bags which we recovered from the Obu of the 6th accused. Exhibit 21 is of the same length and stuff as Exhibits K – K2.
On 16/11/78 the head of the body was seen in a bush behind Central School Umunwanwa in my presence. It was the 1st accused who gave us the information in the presence of the 4th accused that 4th accused told him in their cell where to get the head of the deceased and his two legs. 4th accused denied giving the said information to the 1st accused. Both the 1st and 4th accused were kept in the same cell in the Police charge office Umuahia. After the information the D. P. O. detailed me and other police officers to check on the information and we drove to the place. From the main road to the place – the bush where we recovered the head and the legs of the deceased is about 300 yards i.e. Umuahia – Umunwanwa Road. The Central School Umunwanwa is in between the main road and the bush. The bush is a palm plantation belonging to the 6th accused and newly brushed. We were informed that the head and legs of the deceased were in an anthill. On arrival we started to look for the said anthill. We were in company of the 1st, 4th and 5th accused. We eventually saw the anthill and the head of the deceased in one of the holes of the old anthill. About 5 yards from the anthill we saw the two legs of the deceased from the legs downwards near the trunk of cut-down palm tree covered with piece of black rubber. We also dug out the head of the deceased from the hole of the anthill. We collected the two legs with the black piece of rubber. This is the black piece of rubber tendered no objection admitted and marked Exhibit 36. The 4th and 5th accused said they did not know anything about the deposits of the head and legs in the bush but the 1st accused person identified the head and the legs as those of the deceased.”
and Fourth: P.W.19:- P.W.19:- “I Joined the Umuahia Police to search for the head and the legs of the deceased. Before then the Umuahia Police had recovered the other parts of the deceased. As nothing was recovered on that day I returned to Umuahia with Umuahia Police and I then left for Owerri. I went to Umuahia and Umunwanwa again on 13/11/78 on investigation but the head and the legs of the deceased could not be discovered. On 15/11/78 I interviewed the 1st accused who was already in the cell. As a result of my interview with the 1st accused I knew where to recover the head and the legs of the deceased. On 16/11/78 the D.P.O. sent for me and when I arrived at his office I saw the 1st accused already there, and from the information he gave to me I took him, the 4th and 5th accused persons to Umunwanwa in company of Sgt. Uwasomba P.W.17th and one Assistant Superintendent of Police Mr. Osukweme. When we got to a School in Umunwanwa village the accused persons asked us to stop. When we stopped our vehicle they took us behind the School and went into the bush about 300 yards from the road. It was in the bush we received some odour of a rotten thing. As we are going about the bush searching we saw an anthill and saw flies coming out from one of the holes of the anthill. Looking into it I saw a human head. I invited the attention of the accused and other police men with me to it. About 5 yards away I saw legs of human being wrapped with black tarpaulin. I left P.W.17, the Assistant Superintendent of Police and the accused at the scene and proceeded to Umuahia to collect a photographer and the Divisional Police Officer. I also collected from the village a shovel and a digger. The Police photographer followed me to the scene. He is P.W.11. We dugout the head collected it as well as the legs and put them in our vehicle. This is the black tarpaulin or rubber used in wrapping the legs – Exhibit 36 identified. During my investigation I noticed a similar tarpaulin or rubber used in wrapping the legs of the deceased in the house of the 6th accused. I collected it also from the house of the 6th accused – in the Obu or out house of the 6th accused. I collected on the scene 16/11/78 I recovered the legs of the deceased which was wrapped with the black tarpaulin or rubber. At the Police station I brought the 6th accused from the cell, showed him the black tarpaulin or rubber which he identified to belong to him. The black tarpaulin or rubber I collected from the ‘Obu’ of the 6th accused was partly cut off, and when compared by me looked similar to the one used in wrapping the legs. When I joined the piece used in wrapping the legs with the remaining piece found in the Obu of the 6th accused both of them coincided in the presence of the 6th accused and police man. This is the piece recovered from the house of the 6th accused. There were two sheets of the black tarpaulin or rubber that were recovered from the Obu of the 6th accused. Tendered no objection admitted and marked Exhibit 38, by Mr. Ikeotuonye …I wrote a report. In my report I did not mention 1st, 4th and 5th accused as accompanying us to Umunwanwa but in fact they accompanied us to the bush in Umunwanwa where the head and the legs of the deceased were recovered by Mr. Mgbaraonye…
I mentioned the discovery of the tarpaulin in my report.”
The result of the laboratory examination of the blue pair of trousers recovered in the room of the 5th accused person and suspected to be stained with blood confirmed it that it was so stained. The report was Exh.Q. The piece of tarpaulin in which the legs of the deceased recovered from the hole of an anthill were wrapped when recovered was Exh.36. And the other piece of tarpaulin which was recovered from the outhouse or Obu of the 6th accused and which was admittedly his own was Exh.38. Exhibits 36 dovetailed with Exh.38 when put together along their ragged sides in such a way as to show convincingly that both of them came from one whole piece.
And lastly the prosecution relied on the statement each of the accused persons made under caution to the Police. The statement of the 1st accused was Exh. 22 English translation version Exh. 22A. In rejecting the no case submission on behalf of the 3rd, 4th, 5th, 6th, 8th and 10th accused persons, the learned trial Judge held as follows:-
“It appears to me from the evidence so far adduced that apart from Exhibits 22 and 22A there are other evidence connecting the 1st, 3rd, 4th, 5th, 6th, 8th, 9th and 10th accused persons with this offence. One thing, there was a celebrating or drinking party in the house of the 6th accused in the evening of 5th November, 1978 in which the accused persons and the deceased took part. It was in this celebration that the deceased was seen last. They all stayed till the electric plant of the 6th accused went off and they started to go. The deceased never reached home. It therefore stands to reason that those who drank with the deceased in the house of the 6th accused and in whose company he was seen last ought to account or give an idea as to his whereabout.”
Consideration of issue (a) raised in the brief of arguments for the accused persons resolved itself into the question whether the trial Judge was right or not in rejecting the no case submission.
It is trite to say that the statement of an accused person to the police is only evidence against him and not evidence against his co-accused persons. So, in the case in hand evidence other than the statement of a co-accused person implicating an accused person directly or inferentially in the commission of the crime in question must be examined before coming to the conclusion That that accused had a case to answer. Evidence that an accused person had the opportunity to commit the offence with which the accused persons were charged without anything more will not suffice in my view to ground a ruling that that accused had a case to answer. It is in this light that I view the pieces of evidence that the accused persons and the deceased were at a party together at the house of the 6th accused person as the host and that all the invited guests including the deceased left the house of the 6th accused person together when the party ended suddenly for their homes which all except the deceased reached. I cannot find anything more than this in the case presented by the prosecution against the 8th and the 10th accused. The evidence would only cast suspicions on them that they were involved in the commission of the offence. But evidence of suspicion however strong hardly suffices in proof of commission of an offence. As I have just said the statement of an accused to the police was not evidence against the other accused persons.
Besides the evidence of the opportunity to commit the offence there was the evidence of the 19th P.W. which I have copied earlier on in this judgment against the 3rd and 4th accused. The evidence if believed showed clearly their complicity in the murder of the deceased. But this witness in cross-examination said that in his report of his investigation he .did not say that the 3rd and 4th accused persons either of them showed them the spot where parts of the dead body of the deceased were recovered. Added to this was the evidence of 17th P.W. on the same point which showed that the 3rd and 4th accused neither of them did that which P.W.19 now attributed to them in his evidence as having been done by them. In effect the evidence of 19th P.W. had been so discredited by the other evidence he gave and so contradicted by the evidence of another witness that no reasonable tribunal would convict on it. There was no other evidence implicating either of the 3rd and the 4th accused persons in the crime in question in this case.
Besides the evidence of opportunity to commit the crime there was the following evidence against 5th accused, namely his blue trousers stained with human blood were recovered from his room.
Besides the evidence of the opportunity to commit the crime there was the following evidence against the 6th accused namely Exh.38, a piece of tarpaulin recovered from his outhouse or Obu, and which admittedly belonged to him and which was the other part of Exh.36 the tarpaulin in which the legs of the deceased found in the hole in an anthill were wrapped. The above pieces of evidence against the 5th and 6th accused in addition to the evidence of the opportunity they had to commit the crime, if believed, showed clearly they were each of them implicated in the offence of the under of the deceased with which they were charged.
Guided by the authorities I have referred to earlier on in this judgment and having regard to the case of the prosecution against the 3rd, 4th, 5th, 6th, 8th and 10th accused persons which I have hitherto examined, I am satisfied that the learned trial Judge was right in overruling the no case submission on behalf of the 5th and 6th accused but was wrong in overruling the no case submission on behalf of the 3rd, 4th, 8th and 10th accused persons. After the ruling on the no case submission and the proceedings in the case continued, the 3rd, 4th, 5th, 6th, 8th and 10th accused took part in these subsequent proceedings although their counsel had earlier on said they were relying on the no case submission and in fact none of them went into the witness box to give evidence. I have come to this conclusion because as I have said earlier on in this judgment their counsel cross-examined the 1st accused person who gave evidence in the witness box.
The 1st accused apart from his confessional statements gave evidence in the witness box virtually admitting the guilt of the offence with which he was charged. In addition he gave evidence very damaging to the 3rd, 4th, 5th, 6th, 8th and 10th accused persons.
The question then is this: What is the effect, if any, of the latter evidence on the case of the prosecution against those accused persons in the circumstances prevailing at the time 1st accused person gave his evidence which circumstances I have indicated above This is what issue (b) in the brief of arguments for the accused persons is about.
In this regard R. v. Ajani 3 W.A.C.A. 3 says at 7:-
“And that is how the law stands today, and it appears to amount to this, that in cases where the prosecution has made out no case against an accused, but in spite of that he is called upon by the Court to enter upon his defence instead of being discharged:
(a) If at the close of the case for the prosecution his Counsel, if he was represented, made no submission he can be properly convicted upon evidence subsequently given, and
(b) If at the close of the case for the prosecution, he, being unrepresented and probably completely ignorant of procedure, made no submission, he can be properly convicted upon evidence subsequently given and
(c) If at the close of the case for prosecution he or his Counsel made a submission which was wrongly overruled then, if either he or his Counsel took any part in the subsequent proceedings, an appeal against a conviction resulting from those proceedings will fail. But
(d) If at the close of the case for the prosecution he or his Counsel made a submission, which was wrongly overruled, and then refused to take any part in the subsequent proceedings, he will be “quite safe,” i.e. apparently certain to get a possible conviction quashed on appeal.
On to the horns of what a dilemma does this cast an accused or a defending Counsel! Should he stay quiet he may meet with unjust conviction on the uncontradicted evidence of a co-accused when one question by way of cross-examination would have demonstrated the falseness of the evidence. Should he put that question he is throwing away certain safety, if his view as to the submission is right.
If this state of the law appears to make it difficult for an accused in England, it seems to amount to a positive hardship in this country where so many of the accused are illiterates, where trials of several accused together are frequent and where Judges owe a special duty to protect their interests. But it is for the legislature and not for this Court to effect an alteration of the law, and we feel bound to give effect to the law as we find it.”
And the recent decision of this court, upon which counsel for the accused persons Mr. F. O. Akinrele S.A.N. relied, Wahabi Mumuni & ors. v. The State (1975) 6 S.C. 79 says at 109:-
“None of the two cases to which we have referred above is authority for the proposition which has been canvassed at length before us that an accused person whose submission of no case to answer has been overruled is entitled, by taking no further part in the proceedings, to exclude the co-accused’s evidence against him even when that submission is rightly overruled. The co-accused’s evidence is lawful and the court may use it as it may deem fit.” “Where, however, there is no case for a co-accused to answer at the dose of the prosecution’s case, he should be acquitted by the trial Judge of the offence charged at that stage of the trial. As Lord Goddard, L.C.J., observed in R. v. Abbot (supra), overruling the submission in those circumstances and calling upon such a co-accused to testify in his defence, the co-accused is, in effect, being asked to prove his innocence. Under our law, it is not for an accused person to prove his innocence. By virtue of the provisions of section 22(4) of the Constitution of the Federation, he is presumed to be innocent of the offence charged until the prosecution have proved beyond reasonable doubt that he is guilty of that offence. In the light of the foregoing, it is our view that R. v. AJANI (supra) is no longer good law.”
In view of the reservations which the old West African Court of Appeal expressed about the pragmatism of its decision as opposed to its legal justification, it is little wonder that it was overruled. So on the authority of Mumuni v. The State (supra) the 3rd, 4th, 8th and 10th accused persons whose no case submissions have in my judgment been wrongly overruled by the learned trial Judge could not have been rightly affected in any event by the damning evidence given against them by the 1st accused person in the witness box. So their appeals each of them to this court are entitled to succeed.
As I have said the no case submissions on behalf of the 5th and 6th accused persons were rightly, in my judgment, overruled by the learned trial Judge. So on the authorities I have just cited, the evidence of the 1st accused person in the witness box incriminating them was legal evidence against them. This is what issue (c) in the brief of arguments for the accused persons is concerned with. However the evidence being evidence of a co-accused it behoved the learned trial Judge to warn himself of the danger of acting on that evidence without corroboration. And in fact he did. He made this abundantly clear in the following passage from his judgment:-
“Even if the 1st accused may be regarded as an accomplice, I have warned myself that it is unsafe to convict upon his evidence in compliance with the provisions of Section 177(1) of the Evidence Law.”
And he even went further to look for corroborative evidence of that of the 1st accused before acting on it to convict the 5th and 6th accused persons. The learned trial Judge correctly directed himself in law and in fact on this point as the following passages from his judgment show:-
First as to the law
“On the question of corroboration of the evidence of an accomplice, Lord Reading C.J. in the case of Rex v. Baskerville (1916) K.B. page 667 stated that “Corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is which confirms in some material particular not only that the crime has been committed, but also that the prisoner committed it.” See also the case of Djan and Another v. The Queen 14 W.A.C.A. page 558.”
Next as to the facts:-
“But the evidence of the 1st accused does not stand alone….
Apart from the direct evidence of the killing of the deceased Okebugwu Nwosuagwu manifested in the 1st accused statement Exhibits 22 – 22A and his evidence in Court, there is the direct evidence and circumstantial evidence of P.W.3, P.W.4, P.W.5, P.W.6, P.W.7, P.W.8, P.W.9, P.W.10, P.W.11; P.W.12, P.W.13, P.W.15, P.W.17 and P.W.19 already set out in this judgment. These evidence, I believe, without any reservations.” And from the analysis of the evidence adduced by the prosecution against the 5th and 6th accused persons which I have done earlier on in this judgment there was in my view, too ample evidence in this case, corroborative of the evidence of the 1st accused person against the 5th and 6th accused persons. The additional evidence in the words of this court in The Queen v. Omisade & 17 others (1964) N.M.L.R. 67 following R. v. Baskerville (supra) rendered it probable that the story of the 1st accused person against the 5th and 6th accused persons was true and that it was safe to act on it.
So the prosecution had proved its case against them, beyond any reasonable doubt. The accused persons both of them did not call any evidence on their behalf. So the burden on them by virtue of section 137(3) of the Evidence Act which says:-
“If the prosecution prove the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the accused.”
cannot be said to have been discharged, the prosecution having proved its case against them beyond reasonable doubt. In the circumstances their convictions in my judgment by the learned trial Judge cannot be faulted. The 1st accused person was a self confessed felon. Apart from his confessions both in his statements to the police and in the witness box, there was overwhelming evidence that he was one of those who murdered the deceased. Small wonder Mr. F.O. Akinrele S.A.N. his counsel could not usefully urge anything in support of his appeal.
In the result the appeal of each of the 3rd, 4th, 8th and 10th accused persons i.e. the 2nd, 3rd, 6th and 7th appellants respectively is allowed by me. Their convictions and sentences each of them are hereby set aside by me. In their place 1 enter an order of discharge and acquittal. The appeal of each of the 1st, 5th and 6th accused persons i.e. the 1st, 4th and 5th appellants respectively is dismissed by me. Their convictions and sentences by the trial court which were confirmed by the Court of Appeal Enugu Division are hereby also affirmed by me.
Other Citation: (1988) LCN/2380(SC)
