Salisu Yahaya V. The State (2001)
LawGlobal-Hub Lead Judgment Report
ADAMU, J.C.A.
The appellant was arraigned before the High Court of Justice, Ogun State, holden at Abeokuta, on a charge of murder contrary to section 319(1) of Criminal Code Law Cap. 29 Laws of Ogun State of Nigeria, 1978. He was alleged to have stabbed to death, the deceased by name; Kayode Bereola and thereby, murdered him. The prosecution called six witnesses and tendered some exhibits. The appellant gave evidence in his defence, but did not call any witness to testify for him. At the conclusion of the trial, the learned trial Judge found the appellant guilty for the offence of murder, and convicted him. He was sentenced to death by hanging. Being dissatisfied with the judgment of the trial Court, the appellant lodged an appeal against it, to this Court. The original notice of appeal contained only one ground, but was amended to two (2) grounds with the leave of this Court granted on 14/9/2000.
The parties have in accordance with the rules of this Court, filed their respective briefs of argument, which they mutually adopted at the hearing of the appeal on 14/11/2000. In the appellant’s brief, which was filed on 21/9/2000 the two issues for determination are formulated as follows:-
“3.00 Issue for determination
3.01 The appellant submits that the issues that arise for determination are as follows:
Whether the learned trial Judge was right to have relied on Exhibit ‘D’ in convicting the appellant.
Whether the evidence of PW1, PW2 and PW3 were sufficient to support the conviction of the appellant without further corroboration.”
On its own part, the respondent has in its brief of argument filed on 2/11/2000, adopted the above issues as formulated by the appellant “with slight modification” as the issues arising for determination in the appeal. In view of this adoption of the appellant’s, two issues by the respondent, I will also adopt the said issues as formulated by the appellant in this judgment. It is also pertinent, to note that the appellant’s Counsel has, in the brief, well related the two issues to the two grounds of appeal as per the amended grounds of appeal filed on 21/9/2000 (filed with the leave of this Court).
In arguing the first issue, it is pointed out in the appellant’s brief, that the learned trial Judge heavily relied on Exhibit ‘D’ in convicting the appellant. The said Exhibit ‘D’ was the confessional statement purportedly, made by the appellant at the State Police Headquarters, Eleweran. Reference is made in the brief to page 45 (lines 6-8) of the record, in this regard where the learned trial Judge found as follows:
“From the evidence before me, I am satisfied that Exhibit ‘D’ was made voluntarily by the accused. I am also satisfied that same is true, and has been amply proved and corroborated.”
It is however, pointed out in the brief, that an earlier statement made to the Police by the appellant which was admitted as Exhibit ‘C’ and was also confessional in nature, was expunged by the trial Court on the grounds that, being a statement recorded in Hausa language and interpreted in English language, with the interpreter not being called as a witness it was regarded as a mere hearsay evidence, as observed by the learned trial Judge (at page 42 lines 1-5 of the record). It is argued in the brief, that since Exhibit ‘D’ (relied upon by the Court) was recorded in English, in contradiction with Exhibit ‘C’ recorded in Hausa and translated (or interpreted), and which was expunged by the said Court, the learned trial Judge should have inquired, as to the reason why one statement (Exhibit ‘D’) was made in Hausa, while the other (Exhibit D) was made in English and was thumb-printed, instead of being signed. It is submitted that the Court should have also held Exhibit ‘D’ to be made in Hausa and translated just like Exhibit ‘C’) and to have rejected if for the same reason. It is further submitted in the brief that, if Exhibit ‘D’ is expunged from the record, the judgment of the trial Court would have been different as reliance was expressly made by the said trial Court on the said Exhibit ‘D’, in arriving at its judgment and or in convicting the appellant. We are urged under the first issue to resolve it in favour of the appellant and to consequently, allow his appeal under the said issue.
In the respondent’s brief, reply to the above submissions of the appellant are contained at page 3-6 (paragraphs 4.2-4.12 thereof). The respondent conceded, that the appellant made two statements to the Police in the course of investigation – viz Exhibits ‘C’ and ‘D’. while both statements were confessional in nature, one (Exh. C) was made in Hausa and translated into English, while the other (Exh.D) was made in English. It is pointed out in the brief that Exhibit ‘C’, which was obtained through an interpreter was rightly expunged by the learned trial Judge, as hearsay evidence, since the interpreter was not called as a witness. In the case of Exhibit’ D’ however, the brief points out, it was volunteered in English by the appellant who was duly cautioned. The statement was read over to him and he agreed with its truth, before thumb printing it (see the evidence of PW5 at page 30 of the record). The appellant was also taken to PW6, for endorsement of the confessional statement and its truth and voluntariness, were duly confirmed and endorsed by the said witness. It is argued in the respondent’s brief that, when the confessional statement in Exhibit ‘D’ was tendered, the appellant and his counsel who were present at the trial did not object to its admission or voluntariness. They cannot therefore, be heard to object now at an appellate level. It is pointed out in the brief that if the appellant or his counsel had objected to the admission or voluntariness of the statement in Exibit ‘D’, there would have been a trial within trial by the trial Court to ascertain its voluntariness, It is contended further, that the confession in the said statement has been confirmed or corroborated by the evidence of the appellant himself (which was substantially the same as the contents of Exhibit ‘D), as well as the evidence of other witnesses in the case (i.e. PWs. 1-3).
Another ground showing that Exhibit ‘D’ was actually made by the appellant in English language, as stated in the respondent’s brief, is that his oral evidence before the Court (i.e. his testimony) was made in English language rather than in Hausa language. The learned trial Judge adverted his mind to this point when he stated (at page 42 lines 4 -9 of the record) as follows:-
“the same is not true of Exhibit ‘D’ which was taken down in English language, the accused understanding English. He even testified in English language before me. He understands English very well”
It is submitted in the brief, that a true and voluntary confession of guilt by a prisoner Whether before the Court or extra-judicially made will, if it is direct, positive, duly made and satisfactorily proved, sufficient to grant or warrant a conviction, without the need for any corroborative evidence as long as the Court is satisfied with the truth of the confession. However, it is only desirable (though not necessary to have outside of the accused’s confession to the police some evidence (even if slight) of the circumstances which make it probable, that the confession is true. See Egboghonome v. The State (1993) 7 NWLR (Pt. 306) 383; Edhigere v. The State (1996) 8 NWLR (Pt. 464) 1 at 10. Dawa v. The State (1980) 8 -11 SC 236′ Onuoha v. The State (1987) 4 NWLR (Pt.65) 331, cited in the respondent’s brief in support of the above submissions. The settled law, is reiterated in the brief that where an accused person does not challenge the making of a confessional statement as in the present case, such a statement once legally admitted in evidence will be juxtaposed, with all other evidence in Court (including the defence so as to decide the truth of the said statement and the general merit of the case. See Egboghonome v. The State (supra). It is finally submitted in the brief that in the present case the appellant’s confessional statement in Exhibit ‘D’ is corroborated by his testimony in the Court (amongst other evidence). We are also urged to disregard the appellant’s contention that, the learned trial judge is duty bound, to make an enquiry as to why Exhibit ‘D’ was made in English language while Exhibit ‘C’ was made in the Hausa Language, by the said appellant as the contention is misconceived. Hence, no such duty exists or is imposed by law on the said learned trial Judge, who is only required to be satisfied of the truth of the said confessional statement, which he duly did in the present case (Ss page 44 lines 27-28 and page 44 lines 5 -11 of the record).
After going through the above submissions from the two briefs on the first issue, I think the gravamen of the arguments, is on the reliance of the learned trial judge on Exhibit ‘D’ and on the legal effect of the said Exhibit. The exhibit is a confessional statement of the appellant, which he gave at S.I.I.B. Police Headquarters, Eleweran. He was duly cautioned before he volunteered the statement in English language, which was read over to him after the recording and he confirmed that, it was correct before he thumb-printed on it. He was also taken before a superior police officer, who read it over to him and when he agreed that he made it and it was correctly recorded the superior officer endorsed it as required by law (the Judges rules)- See Exhibit ‘E’. Moreover the said statement, was tendered at the trial Court and was admitted as exhibit ‘D’ without any objection from the appellant or his Counsel. It is pertinent to observe in relation with Exhibit ‘D’, that the appellant’s complaint against it is not on the usual grounds, that it was either not made at all or that it was involuntarily obtained (either by threat or inducement).
Rather, in an unusual manner, the appellant’s argument against the said Exhibit is on whether it was made in English or Hausa. This is in view of an earlier statement, made to the police by the said appellant in Hausa language (Exhibit ‘C’) at a different venue and translated into English language, which was expunged by the said trial Court on the ground that the interpreter (or translator) was not called as a witness and so the statement (i.e. Exhibit ‘C’) amounted only to a hearsay evidence. It is to be noted that the appellant himself, did not deny making the subsequent statement in Exhibit ‘D’ in English language, but even expressly admitted making it in English language (see page 3 paragraph 408 of the appellant’s brief). It is my humble view, that with this admission by the appellant that, he made the statement in Exhibit ‘D’ in English language, as it was recorded and voluntarily too, there being no denial or retraction of it, either at the trial Court or at this Court on the part of the said appellant, there should be no further question or quarrel as to the fact that it was actually made in English or as to its existence or voluntariness. Consequently, the appellant’s suggestion (in the brief) that the learned trial Judge should have compared its contents with Exhibit ‘C’ (which has been expunged by the Court (rightly in my view) is misconceived as that suggestion has no legal basis. So also, is the other suggestion that because exhibit ‘D’ was thumb-printed rather than signed by the appellant, the learned trial Judge should have presumed that it was actually volunteered or recorded in Hausa language, as it is a well known fact that many people, particularly illiterates (like the appellant in the present case), can speak English language without being able to write it. In such cases, the statement can be recorded for them and when read and found to be correct, they can append their sign or right thumb impression (as happened in the present case). In considering the arguments of the appellant (as per his brief), I do not need to ponder into whether or not the statement in Exhibit ‘D’ was voluntarily made. This is, because that, was not an issue at the trial court or even in this Court. Rather, what I will consider is whether the statement was made at all by the appellant in English language as he was recorded, or in Hausa language as he claims (in the brief). In this regard, it is pertinent to point out that the appellant did not also deny making the said statement or his sign (i.e. the thumb impression) on it also both at the trial Court and in this Court. It is however, in accord with principle of fairness and justice, that I consider the circumstances of making the said statement and to confirm the truth or otherwise, of its contents. It is settled law and a well established practice in this country, that where there is a challenge against a confessional statement on the ground that it was not made at all, the question as to whether or not it was made at all or in the manner represented by the prosecution (as in the present case), is a matter to be decided at the conclusion of the case (i.e. the hearing) by the trial Judge. Consequently, whatever objections or arguments raised against such confessional statement would not at that stage affect its admissibility, since the issue of voluntariness of the said confessional statement does not arise, and there will be no need for a trial within trial. Thus, there is a distinction in this regard under our criminal procedure and practice between a confession challenged on the ground, that it was not made at all by the accused (i.e. retracted) and the one challenged on the ground that it was not voluntarily made – See Queen v. Igwe (1960) SCNLR 158, (1960) 5 FSC 55; Godwin Ikpasa v. Bendel State (1981) 9 SC 7 at 28-30; Onochie v. The Republic (1966) NMLR 307; Kanu v. King (1952) 14 WACA 30; Akpan v. The State (1992) 6 NWLR (pt.248) 439 at 460; R. v. Itule (1961) 1 All NLR 462, (1961) 2 SCNLR 183; Ikemson v. State (1989) 3 NWLR (pt.110) 455 at 467, 476.
Thus, a voluntary confession as is in the present case which also complies with the rules governing the method of taking it and tendered, without objection at the trial until it is admitted in evidence is then a good evidence and no amount of subsequent arguments, against it or retraction will vitiate its admissibility as a voluntary statement and its mere denial by the accused, will not be a reason for rejecting it- so held by the Supreme Court in lkemson v. State (supra at p. 476 of the report). See also Ikpasa and Utuk cases (supra)
A confession has been defined as an admission made at any time by a person charged with a crime stating or suggesting that he committed the crime. If voluntarily, made such a confession is considered as a relevant fact against the person who made it- See section 27(1) and (2) of the Evidence Act Cap. 112 Laws of the Federation of Nigeria, 1990, Ikemson v. State (supra) pg 476, of the report and Saidu v. State (1982) 4 SC 41, and Kasa v. The State (1994) 5 NWLR (Pt.344) 269.
The law is trite and very clear as regards the confessional statement, whether it is judicial or extrajudicial. Once it is free and vountary, and it is direct and positive and properly established, it is a sufficient proof of guilt of the accused person and it is enough to sustain a conviction, so long as the Court is satisfied with the right of such a confession – See R. v. Sykes (1913) 8 CAR 233 at 266; R v. Ajayi Omokaro (1914) 7 WACA 146; Philip Kanu & Anor v. King (1952 14 WACA30; Jafiya Kopa v. The State (1971) 1 AH NLR 150; James Obi Achabua v. The State (1976) 12 SC 63 at 68-69; Ikemson v. State (supra) and Ntah v. State (1982) 4 SC 1.
It is however desirable to have outside the confession some corroborative evidence, no matter how slight of some circumstances which make it probable, that the confession is true and correct because the courts are not generally disposed to act on a confession without testing the truth thereof- See Paul Onochie & Ors. v. The Republic (1966) NMLR 307; R. v. Sykes (supra), Ikemson v. State (supra); Kanu v. R. (1952) 14 WACA 30; and Aganmonyi v. A.-G., Bendel State (1987) 1 NWLR (Pt.47) 26 at 35.
Having stated the law as it is, and the principle on confessional statements as above. I found it very easy to apply it to the facts and circumstances of the present case. The appellant’s statement in Exhibit ‘D’ was recorded in pidgin English. It was signed by the appellant and dated on 2/1/92 (see page 22 of the records). The relevant part of Exhibit ‘D’ reads as follows:
“The man Kayode Bereola no gree he go for his house and come with matchet and cut me on my left thumb, and my head. As I know that if I no run away the man will kill me, me self go for my house and come with a matchet to cut him back, on the hand but he bend down and the cutlass cut am for neck by mistake….”
(Italics mine)
After the taking (recording) of Exhibit ‘D’, the appellant was taken to PW.6, one Mr. Francis Sowole A.S.P., who was a Superior Police Officer (S.P.O), and who read over the statement to the said appellant and asked him some questions to confirm that the statement was actually made by the said appellant, before it was duly endorsed by the said SPO. A confessional statement form for that purpose was filled and signed by the said SPO- it was tendered and admitted as Exhibit ‘E’ by the trial court without objection by the defence. The appellant was represented by a counsel throughout the trial. Under the above circumstances, the statement in Exhibit ‘D’ amounts to and is qualified as a confessional statement voluntarily made by the appellant. It is also direct and positive and all the formalities or rules for the purpose of taking or recording a confessional statement, were satisfied or complied with. Consequently, in view of the position of the law on confessions as stated above, it is enough to sustain the conviction of the appellant for the offence of murder, with which he was charged at the trial Court. Also, under the circumstances of the case, I agree with the respondent’s submission and the finding of the learned trial Judge, that the statement in Exhibit ‘D’ was actually recorded in pidgin-in-English rather than in Hausa. This fact is also confirmed by the evidence of PWs. 5 & 6 (see pages 30 – 31 of the record). The appellant did not deny making the said statement, or did not retract from it both at the trial Court or before this Court. See Adamu v. A.-G., Bendel State (1986) 2 NWLR (Pt.22) 284 at 302-303, and Obue v. The State (1976) 2 SC 141. I have also earlier quoted the learned Counsel for the appellant who stated in the appellant’s brief that the said appellant actually made Exhibit ‘D’ in English language. The relevant portion of this admission by appellant’s Counsel is at page 3 paragraph 408 wherein, it is averred as follows:
“4.08 It is submitted that while it is true that Exhibit ‘D’ was obtained in English language, the Court in arriving at justice ought to put itself on an enquiry as to why Exhibit ‘D’ was volunteered in English in contradistinction with Exhibit ‘C’ that was obtained in Hausa language.”
It is my humble view, that the learned trial Judge in the present case has painstakingly and meticulously made efforts to ascertain (as he eventually found), that the statement in Exhibit ‘D’ was actually made in English language rather than in Hausa language, making the complaint of the appellant’s Counsel in the above quoted paragraph of the appellant’s brief as futile and devoid of any merit. Thus, the learned trial Judge found that the appellant could speak both Hausa and pidgin English. Throughout the proceeding at the trial Court (which was in English), the said appellant did not complain that he did not understand English or that he required an interpreter. Moreover, when he chose to give evidence in his own defence, he did so in English language and he did not ask for an interpreter – See page 35 of the record. He was also represented by a Counsel, who did not indicate that his client could not speak or understand English language. In view of all the above circumstances, the learned trial Judge was right in admitting Exhibit ‘D’ and in holding that it was actually made in English language, by the appellant notwithstanding the fact that Exhibit ‘c’ (an earlier statement by the said appellant at a different venue) was made or recorded in Hausa language and interpreted into English. It is also my view that the said Exhibit ‘C’ was rightly expunged by the learned trial Judge, since the interpreter was not called as a witness in the case.
From the above cited authorities on the treatment of a confession made by an accused person by the Court and in view of the circumstances of the present case in relation to Exhibit ‘D’,what the learned trial Judge was required to do, was for him to test the truth of the confession made by the appellant in Exhibit ‘D’ by finding some evidence of circumstances (no matter how slight) which would make it probable that the confession was true. I am of the view that the learned trial Judge also complied with this requirement by making reference to the evidence of some prosecution witnesses, whose evidence was or were in accord with the facts as stated by the appellant in Exhibit ‘c’ – i.e. that he wanted to retaliate an earlier attack by the deceased on his thumb, but he mistakingly stabbed the said deceased on the head (or neck), thereby severing the head from the neck. Reference is also made by the learned trial Judge, to the evidence of the accused himself in which he stated what transpired and led to his “butchering” the deceased on the fateful day, at the gruesome and brutal incident. The account given by the said appellant was exactly the same as what he stated in exhibit ‘D’. I think this is enough to confirm the truth of the confession in the said Exhibit ‘D’ – see page 44-45 of the record.
In view of all my above observation and consideration of the appellant’s first issue, the said issue and its corresponding ground of appeal (ground one), must be resolved against the said appellant. They are accordingly, hereby so resolved.
Under the second issue, the submissions in the appellant’s brief are based on the fact that the three vital or eye-witnesses who gave evidence on what happened at the scene of the crime and led to the murder charge against the appellant, are all related to the deceased. The witnesses involved are PWs 1-3. It is pointed out that PW1 was the nephew of the deceased and PW2 was the deceased’s brother, while the deceased’s wife was PW.3. It is argued that the learned trial Judge believed in and relied heavily on the evidence of these witnesses, who were related to the deceased, either by blood or affinity – see page 45 of the record. It is submitted in the brief that because of their relationship with the deceased, the three witnesses had a special interest to protect or a purpose to serve, which qualify them as “tainted’” or biased” witnesses. Consequently, it is argued in the brief, that their evidence (or testimonies require corroboration by an independent witness or evidence and in the absence of such an independent evidence, the learned trial Judge should have warned himself that it was unsafe to convict the appellant solely on the basis of evidence of his relations, without any corroboration – See Oguonzee v. State (1998) 5 NWLR (Pt.55I) 521 at 577-578; R. v. Omisade (1964) 1 All NLR 133, Ali v. State (1972) 10 SC 87; State v. Okolo (1974) 2 SC 73; Mbenu v. State (1988) 3 NWLR (pt.84) 615; and Onafowokan v. State (1986) 2 NWLR (Pt.23) 496 at 503 cited in the appellant’s brief in support of the submission.
Reference is made in the brief to the testimony of PW3 (at page 27 of the record) where she stated that there were other people at the scene of the crime apart from PWs. 1-3. It is argued that the prosecution should have called such other persons who are not related to the deceased as witnesses in the case and the failure of the prosecution to do so was fatal to their case. The Court should have held that they (i.e. the prosecution) have failed to prove their case against the appellant beyond reasonable doubt. We are urged to hold so – see Rapheal v. C.O.P (1971) NMLR 353 and R. v. Kuree 7 WACA 175 cited in support of the submission. We are finally urged in the appellant’s brief under the second issue (as argued above) to resolve the said issue in favour of the appellant and to allow his appeal under the issue.
In reply to above submissions, the respondent’s brief while conceding that PWs 1 -3 are relations of the deceased, it is however argued in the said brief, that there is nothing in the record and before the trial Court to suggest that they were either tainted witness, accomplices or that they have any interest to protect or purpose to be served in the case. There is no evidence of any hostility or quarrel between the witnesses and the appellant prior to the incident of 25/12/91. An attempt is also made in the respondent’s brief to define the term “tainted witness”- see The State v. Okolo & 4 Ors (1974) 2 SC 73 at 82; Ishola v. The State (1978) 9-10 SC 81 at 100, Adetola v. The State (1992) 4 NWLR (pt.235) 267 at 273; and Mbenu v. The State (1988) 3 NWLR (Pt.84) 615, cited in support of the definition. It is argued that the mere fact that PWs 1 – 3 are relations of the deceased does not make them” tainted witness” with a purpose of their own to serve, unless there is evidence on that before the lower Court and they are duly considered and found to be so. In the instant case, at the trial Court, it is pointed out in the brief, there is no evidence or allegation of prejudice, bias or quarrel between the witnesses and the appellant. Instead the trial Court found their evidence to be direct, unassailable and true – see Oteki v. A.-G., Bendel State (1986) 2 NWLR (Pt.24) 648, Nwambe v. Staste (1995) 3 NWLR (Pt.384) 385; and Opayemi v. The State (1985) 2 NWLR (Pt.5) 101 at 103 cited in the brief in support of the point. It is also the respondent, further submission that the prosecution is not obliged to call all the villagers who were present at the Christmas party as witnesses. Its (i.e. the prosecutions) only duty is to call such number of witnesses as necessary to establish its case and to prove the guilt of the accused person. It is submitted that in the present case, the prosecution has discharged its burden of proof through PWs. 1-3. We are finally urged by the respondent under the second issue to dismiss the appellant’s appeal and to affirm his conviction by the trial Court.
Upon due consideration of the above submissions from the two briefs on the second issue, the real question raised is whether or not the principal or vital witnesses called by the prosecution in the case can or should be treated as tainted witnesses or accomplices or persons, who had interest to defend or a purpose to serve in the case against the appellant. It is a common ground that the witnesses (who are PWs. 1, 2 and 3) are relations of the deceased either by blood or by marriage (i.e. affinity). The first point to be settled under this second issue as argued (in the brief) is therefore, on whether the witness as (i.e. P.W.1-3) are “tainted witness” in the case, before the trial Court. On this point, I agree with the definition of the term “tainted witness” given in both the two briefs that a “tainted witness,” is a witness who has an interest to defend or a purpose to serve in a case in which he is called upon to give evidence as a witness.
I however, find it difficult to agree or accept the submission of the appellant that because of their relations with the deceased, the witnesses involved in this case (i.e. PWs 1-3) have thereby, been rendered as ” tainted witnesses” or incompetent to give evidence. It is to be noted that all the three witnesses concerned, were at the scene of the crime and were eye-witnesses to the killings of the deceased. In my humble view, their competence to give evidence as witnesses should not be affected merely by their blood or marriage relationship with the deceased. For them to be treated as the appellant would want as tainted witnesses, it must be shown that they had an interest to protect or purpose to serve in the case. such proof can be by evidence of an earlier quarrel or even an altercation with the accused (i.e. appellant), in which case they can be said to have” an axe to grind or a score to settle against the said appellant. Thus, where a witness has not been shown to be an accomplice or a tainted witness or has not been shown to have a personal interest or a purpose to serve in the case as in the present case, he is not only competent but his evidence does not require corroboration – see Okosi v. State (1989) 1 NWLR (Pt.100) 642, State v. Okolo (1974) 2 SC 73; Oteki v. State (1986) 2 NWLR (Pt.24) 648; Ishola v. State (1978) 9-10 SC 81 and Theophilus v. State (1996) 1 NWLR (Pt.423)139 at 150. Thus, it is trite that there is no law which prohibits blood relations of a victim from testifying for the prosecution where such relations are eye- witnesses to the commission of the crime, as was the case of PWs. 1-3 in the present case – See Adelumola v. The State (1988) 1 NWLR (Pt.73) 683; Onafowokan v. State (1986) 2 (Pt.23) 496 at 503; Hausa v. State (1994) 6 NWLR (Pt.350) 281 at 308 and Oguonzee v. State (1997) 8 NWLR (Pt. 518) 566 at 582.
However, where the witnesses for the prosecution were relations. wives or friends of the deceased, the court or tribunal in which they testify as witnesses in the case is required to be circumspect and to treat their evidence with caution – see Ishola v. State (1978) 9-10 SC 81 100; Onafowokan v. State (supra) and Oguonzee v. State (supra).
In the present case, like in Oguonzee’s case (supra), I am of the firm view, that the learned trial Judge adverted his mind to this requirement or warning, when he was considering or evaluating the evidence of PWs. 1-3 and he stated in his judgment as follows:-
“I believe the evidence of PWs. 1-3 to the effect that the deceased inflicted no wound or injury on the accused. The learned Counsel for the accused person complained that there was no other eyewitnesses beside the family members of the deceased. I hold the view that the circumstances of the case have made it inevitable in the sense that, it is a member of the family that was celebrating the Christmas festivities. It is more or less family affair and a party to which of necessity and in Christmas mood members of the family, would go at this period of time.”
See page 41 (lines 27-31 of the record).
It is also stated in the judgment that:
“The evidence of P.W.S 1, 2 and 3 remained unshaken during cross-examination and they testified in forthright manner. I therefore, find no reason not to believe and accept their testimonies.” – see page 45 lines 19-21 of the record.
In the circumstances of the present case it is also my view that the evidence of killing the deceased by the appellant as given by PWs. 1, 2 and 3 has been corroborated both by Exhibit ‘D’ (the confessional statement of the said appellant) and by his (i.e… the appellant’s) evidence before the Court during his defence. It was confirmed by the learned trial Judge that in both Exhibit ‘D’ and in his evidence before the trial Court, the appellant confirmed that he killed the deceased with a cutlass or matchet even though it was by mistake or on provocation. Furthermore, the learned trial Judge has given full and due consideration to all the possible defences available or raised by the appellant and found that they did not avail him under the circumstances of the case, as is required to be done under the law- see Ojo v. State (1972) 12 SC 147 at 150; Queen v. Afonja (1955) 15 WACA 26 and Oguonzee v. State (supra). Under the above considerations, I am inclined to agree with and accept the submissions in the respondent’s brief and to hold that the prosecution in the present case was not obliged to call other people, who attended the party or any particular person as a witnesses apart from PWs 1-3 as no particular number of witnesses are required to prove the fact of the killing, in the case. Moreover, the appellant who insisted on calling more witnesses apart from or in substitution of PWs 1-3 by relying on PW3’s testimony that, there were other people at the scene, did not show that the said other persons, were not members of the family or friends of the deceased. He did not also show that such other persons are vital or essential witnesses for the purpose of proving the killing of the deceased – see Ali v. State (1988) 1 NWLR (Pt.68) 1 Opayemi v. The State (1985) 2 NWLR (Pt.5) 101 at 100 at 108; Ogoala v. The State (1991) 2 NWLR (Pt.l75) 509 and The State v. Ajie (2000) 11 NWLR (Pt.678) 434, (2000) 8 WRN 1 at p. 12 at 17-18. In my final consideration of the second issue of the appellant’s brief, the said issue together with its corresponding ground (ground two) have failed and must also be resolved against the appellant.
Having resolved the two issues in this appeal against the appellant, his appeal has consequently failed, and must be dismissed. I hereby accordingly, dismiss the appeal and affirm the conviction of the said appellant, and the sentence imposed on him by the trial Court.
Other Citations: (2001)LCN/0936(CA)
