Grace Akinfe Vs The State (1988)

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P. NNAEMEKA-AGU, JSC

On the 5th of May, 1988, this Court allowed the appeal of the appellant in this appeal and discharged her. but reserved the reasons for the judgment till today. Before an Akure High Court presided over by Adetosoye, J., the appellant, a married woman, was charged, tried, and convicted of the murder of her senior mate, Mufesola Akinfe (hereinafter called the deceased), at Oke Otunba Isunrin Street, Idanre, in the Akure judicial Division of Ondo State, on the 5th January, 1985. Her appeal to the Court of Appeal, Benin Division, was dismissed. On further appeal to this Court she filed one “omnibus” ground of appeal.

Through her counsel, Shola Rhodes, Esquire, she sought and obtained leave to argue three additional grounds of appeal.   Some of the facts which led to the appeal are important In 1984, the deceased was pregnant. Her husband, Chief Akinfe (p. w .2) caused to be prepared for her two types of native medicines one in a schnappes bottle and the other in form of a soup.

The latter was consumed by the deceased within two days, whereas she continued to consume the one in the schnappes bottle for about 30 days. According to the deceased, on the 30th of December, 1984, after taking part of the medicine in the schnappes bottle she started to vomit. The bottle was, however, not handed to the hospital till 1st January, 1985, and nothing was known about its custody during the period of two days. Also some other persons, who did not testify, were said to have given some medicines to the deceased on 30/12/84, which stopped the vomiting and it is not clear what concoction they administered to her.

On the 1st of January, 1985, the deceased was taken to hospital at Idanre. As her condition worsened she was, on the 4th January, 1985, transferred to the State Hospital, Akure, where she died on the following day. The circumstances of death of the deceased raised a furore from the relations of the deceased led by Rufus Owodoti (p.w.l).

They reported the matter to the police. As a result, the deceased’s husband, Chief Akinfe (who testified as)( p.w.2) and the appellant were arrested by the police. Charged, the appellant made a statement (Exhibits B and B 1 dated 6/1/85) to the police. It was a complete denial of the charge. Post mortem examination was held on the 8th of January, 1985, but the result of this was not before the Court. I should mention that it was the brother of the deceased who took the remnant of the medicine to the police.  

A new twist was introduced into the case on the 11 th of February, 1985. On that date some relations of the deceased, those of the husband and those of the appellant trooped to the house of one Chief Adigun Asoga (P. W .3), a traditional healer in order to, as was Staled by P.W.2 himself, find out which of he himself and the appellant killed the deceased.

According to P.W.3, within 5 minutes of their arrival in his house, the appellant with absolutely no promptings, or torture, or manipulation of any kind knelt down and confessed to her being the murderer and begged him to save her life. She told them that she mixed a weed-killer, Gammalin 20, with the medicine in the schnappes bottle. Appellant and her witness however said they had been tortured for 7 days. P. W.3 said he had administered some cautionary words to her before she made the confession, which he duly recorded in a tape recorder.  

As a result of all these the appellant was taken to the police where she was said to have made another statement, Exh. C and C 1, which ,the prosecution regarded as confessional. An objection to its being tendered during the trial on the ground that it was obtained by duress was, after a trial within a trial, over-ruled. The appellant, however, retracted the so-called confession in court. After full hearing, the appellant was, as I have stated, convicted as charged.

The learned counsel for the appellant admirably set out the issues for determination in the appeal thus: 1. Whether it can be said that the Appellant was tried in an atmosphere in which it was possible for her to feel that she was tried by a Judge whose mind was unbiased by his having assumed the role of the prosecutor and the Judge during the trial.

2. Whether the conviction of the Appellant as confirmed by the Court of Appeal can be said to be safe, on the face of the role played by P.W.3, the traditional healer and diviner in extorting confession from the Appellant in the traditional way.

3. Whether it was safe for the Court of Appeal to have confirmed the conviction of the Appellant, when there was no medical evidence to confirm the outcome of the post-mortem on the deceased that she died as a result of poisoning by Gammalin, when there was evidence that P.W.2, on his own admission with others administered other native medicine to the deceased before she died. Learned counsel on both sides adopted their briefs and also addressed us orally in line with their briefs. The gist of the first complaint of the appellant is that the learned trial Judge abandoned his impartial role as an umpire in the case before him and descended into the arena of the conflict.

So, the Court of Appeal was in error to have held that it was wrong for the learned Judge to jump into the arena and in the same breath that it could not be said that he had shown any bias by his questions or preventing the appellant and her witness from giving evidence in their own ways.  

Learned counsel for the respondent, while not disputing that the learned trial Judge descended into the arena, submitted that the trial Judge had not shown any bias by his questions because the extensive cross-examination by him did not affect the facts established by the witnesses and the confessional statement of the appellant.

These questions, he submitted, were designed to enable the trial Judge to clarify ambiguities. Further, he submitted that judicial intervention which may lead to the quashing of a conviction are: (a) those which make it impossible for counsel to present the case properly; and (b) those which have the effect of preventing the accused from doing, himself justice and telling his story his own way. In support, he cited the case of R. V. Hamilton (1969) C.L.R. 486, also section 222 of the Evidence Act and 200 of the Criminal Procedure Act.

The learned Judge, he submitted, was entitled to express his opinion on the facts of the case by his remarks after passing sentence. Now, there is no dispute as to the fact that the learned trial Judge descended into the arena of the conflict. The Court of Appeal so found and the learned counsel for the respondent conceded the fact. A perusal of the record confirm the spread, constancy, and intensity of the learned trial Judge’s cross-examination of the witnesses, in clouding the star witness for the prosecution (P.W.3) and the only witness for the defence, whose cross- examination by the court runs to nearly two pages.

The cross-examination of the appellant herself by the court runs to well over one page of typescript. Some of the questions are so incisive and destabilizing that it is at once clear that the learned counsel for respondent could not be correct when he said that the learned Judge was merely clearing ambiguities. Significantly, the learned Judge in his judgment freely referred to these far reaching cross-examinations by himself and, indeed, use it as determinants for the credibility of witnesses and for resolution of issues of fact contested before him.

On the above state of the issue, two questions arise, namely: could a trial Judge in a criminal case rightly go as far as the learned trial Judge did in this case, and if the answer is “no”, as I believe it is, what is the effect on the proceedings.? In my opinion the first question brings in its wake a recrudescence of the full implications of our adversary system of administration of justice, in particular the role of a judge in the system.

I shall be content to repeat what I said recently about this in the case of Sunday Okoduwa & Ors. v. The State: (1988) 2 N.W.L.R. (Part76) 333, at pp. 354 -355, where I stated: “There are certain fundamental norms in the system of the adversary system, in contradiction Lo the inquisitorial system. In that adversary system parties, with their counsel, and the judge have their respective roles to play. Basically, it is the role of the judge to hold the case on the evidence brought by both sides and in accordance with the rules of the particular court and the procedure and practice chosen by the parties in accordance with those rules.

Under no circumstances must a judge under the system do anything which can give the impression that he has descended into the arena, as, obviously necessary inference from all the decided cases on the point. See, for example Fallon V. Calvert (1960) 2 Q.B. 201 at p. 204 In re Enoch V. Zaretsky Bock & Co. ‘s Arbitration (1910) 1 K.B. 327. Jones V. National Coal Board (1957) 2 All E.R. 155; Omoregbe v. Lawani (1980) 3 – 4 S.C. 108 at pp. 120 -121. In re Enock’s Case (supra), Fletcher- Moulton, L.J., at p. 627 summarised the underlying principle where he said;

“A judge has nothing to do with the getting up of a case.” See also Uso v Commissioner of Police (1972) 11 S.C. 37, p. 46 It is I believe, from this context that we should consider the views of the Court of Appeal and the Learned Counsel for the respondent in this case   Now the learned Justice of the Court of Appeal, Musdapher. JCA., with whom Ikwechegh and Ajose-Adeogun, JJCA., agreed, said:

“The complaint here is that the Learned trial Judge personally took over the cross-examination of the appellant and her only witness. This, the learned Counsel submits, occasioned a miscarriage of justice. While it is wrong for a trial Judge to jump Into the arena and appear to be eager to help one of the parties to the dispute he is adjudicating, in which case an appeal Court might hold that a miscarriage of justice was occasioned. See USO V. COMMISSIONER OF POLICE (1972) 11 S.C. 37.

In the instant case, I cannot say that the Judge had shown any bias by his questions, nor would it be correct to say that be had asked too many questions. It is not shown or alleged that by the questions the Judge had put to the witnesses, he had made it impossible or difficult for the Counsel to present the case adequately or properly. Nor was it also shown that the questions asked had the effect of preventing the appellant and her witnesses from giving evidence in their own ways?”

Let me say straight away that from what I have said above, it cannot be rightly said that the learned Judge did not ask too many questions. He did. Also, as I have stated, those questions were very probing and searching and were not even confined to facts which the parties themselves has placed before the court.

They were certainly not limited to questions intended and designed to clear ambiguities or to fill up gaps. Secondly, once it is found that the questions went that far, the impression must be created in the minds of right-thinking members of the society who were watching the proceedings that the learned trial Judge had taken sides with the prosecution against the appellant. As it is so, it is no longer a question of whether the learned Judge had, by those questions, made it impossible for counsel for the appellant to present her case or preventing the appellant or her witnesses from giving their evidence their own way.

The decisive question becomes what image of justice has been created? Does justice really seem to have been done? For the only satisfactory standard of justice acceptable in our system is one in which justice is not only done but also manifestly and undoubtedly seems to have been done. As Blackburn, C.J., said in R. V. Rand (1866) L.R. 1 Q.B. 230: “It is not only of some importance, but is also of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.

See also R. V. Sussex Justices, ex p. McCarthy (1924) 1 K.B. 256, per Lord Hewart p. 259. In that context, once it is shown, as in this case, that a trial Judge has turned both a prosecutor and a judge at the same time, the image of even-handed justice is destroyed and real likelihood of bias is established.  It is not necessary, indeed, it is undesirable for the purpose to investigate the s

Other Citation: (1988) LCN/2382(SC)