Sunday Onuoha & Ors. V. The State (1989)

LawGlobal-Hub Lead Judgment Report

OPUTA, J.S.C. 

The four appellants and one Nlemuwa Amaefule were arraigned before Chianakwalam, J. charged with the offence of murder contrary to Section 319(1) of the Criminal Code Cap. 30, Laws of Eastern Nigeria 1963 applicable to Imo State. The Particulars of offence alleged:-

Particulars of Offence Sunday Onuoha, Gabriel Egbunugwu, Okekenwa Kalu, Godwin Egbunugwu, Nlemuwa Amaefule on the 21st day of March, 1981, at Umuoparafor Umunoha, murdered Nwadike Ezealor.

The prosecution called a total of four (4) witnesses and closed its case. Each accused person also gave evidence in his own defence and closed his case. At the close of the defence the learned trial Judge then called two witnesses Nwezesi Onu Ezealor and Joel Iheanacho. After a review of the evidence on both sides and of the two witnesses called by the court suo motu, the learned trial Judge found the 5th accused “Not Guilty” and acquitted and discharged him. He however found the 1st, 2nd, 3rd and 4th accused persons guilty of the offence of murder, convicted them accordingly and sentenced them to death.

The four – the present appellants – dissatisfied and aggrieved by the above judgment of Chianakwalam, J. appealed against same, to the Court of Appeal Enugu Division. In the Court of Appeal the two fundamental issues calling for a decision in this appeal were raised namely:

i. It was argued that at the time of complaint P.W.2 did not mention the name of any particular person even though all the Appellants were very well known to him (p.153 of record)

ii. It was also argued that the evidence of Nwezesi Onu Ezealor and Joel Iheanacho – both witnesses called by the court threw big doubt on the prosecution’s case-

Inspite of these two serious structures the Court of Appeal nonetheless was content with the fact that P.W.2 was believed, in any event, by the trial Judge and that the two witnesses called by the courts were more in support of the defence and that they did not make a case for the prosecution where none had been established.

Ultimately therefore the court below dismissed the appellants’ appeal to it and affirmed both the judgment and sentence of Chianakwalam, J.

The appellants still dissatisfied and aggrieved have now appealed to the Supreme Court of Nigeria, the country’s final Court. A Brief was filed by Chief Akinrinsola for the 1st Appellant while a separate Brief was filed by Mr. Onumajulu for the 2nd, 3rd and 4th Appellants. Chief Akinrinsola’s 4th Issue for Determination was framed as follows:-

(4) Whether on the totality of the evidence before the trial High Court the Respondent discharged the onus of proof beyond reasonable doubt as required by Section 137 of the Evidence Act, Laws of the Federation.

Mr. Onumajulu in his Brief had as his 4th Issue for Determination the question:-

3.4 In the light of the evidence before the trial court, can it be said that the prosecution established with that degree of certainty required in criminal cases the guilt of the Appellants

The two Issues listed above amount to the same thing. Both deal with the Issue of Proof. Now the ways of proving a criminal case are:

(i) By admissions and confessions of the very people accused of crime and/or

(ii) By credible evidence of witnesses.

In the case now on appeal none of the appellants admitted or confessed to committing the murder alleged against them. In fact each denied the murder and pleaded an alibi which simply means- I was not there at the time and place of the murder. I was somewhere else. I could not therefore have committed the crime charged. Whether the Appellants were there at the locus in quo of the crime, and being there, committed the offence alleged are questions of fact pure and simple. It is a question of which side to believe, the prosecution or the defence

The Court of Appeal per Nasir, President, correctly summarised the point now being made, at p.159 lines 1-6 as follows:-

There is in my view a straight-forward contest between the evidence of P.W.2 on the one hand and the evidence of the Appellants on the other hand. It is a simple straight-forward issue of credibility.

So far so good. The court below then continued: (p.159 lines 7-8).As earlier stated the evidence of P.W.2 won the contest. The question now is: – Should that evidence, in all the surrounding circumstances of this case, have won the contest In other words was the belief reposed in the evidence of P.W.2 a proper exercise of the trial Judge’s judicial discretion to believe or disbelieve witnesses it had the singular privilege of seeing, hearing and observing

Could it rightly be said, in this case, that a fair-minded jury looking objectively and dispassionately at the evidence of P.W.2 against the background of its surrounding circumstances would not have had very serious and grave doubts about the veracity and therefore the credibility of P.W.2

Now what were the surrounding circumstances of this case which ought to form the crucial wedges necessary to drive conviction into the mind What were the possibilities and probabilities which ought to induce belief in the testimony of P.W.2 All men stamp as probable or improbable that which they themselves would or would not have said or done under similar circumstances. Things inconsistent with human knowledge and human experience are properly rated as improbable and as Aristotle aptly put it many, many years ago – Probability is never detected bearing a false testimony. Where therefore the facts deposed to by a witness look probable when considered in relation to all the surrounding circumstances, they induce belief. But when they look improbable they should not induce belief and in such a case it will be unsafe to believe. It is also necessary to mention that no event happens in a vacuum, happens without causing or influencing other events or explaining them. The event, its antecedent and its subsequent events, all form the surrounding circumstances of the case. A witnesses testimony to be credible will completely accord with its surrounding circumstances.

It is in the light of the above observation that I will now proceed to examine the testimony of P. W.2 to find out whether it was safe to have believed him or not.

The evidence of P.W.2 (at pp.5 to 10 of the record of proceedings) can be summarised as follows:

1. The deceased Nwadike Ezealor was the father of P.W.2.
2. The said Nwadike Ezealor was shot by Nwagu Onuoha also known as Sunday Onuoha (1st Appellant) on 21/3/81 right inside his house (Ezealor’s house)
3. The shooting took place about 9.45 p.m.
4. P.W.2 heard the report of a gun, he then ran into his father’s room where he heard his father shouting “Nwagwu has killed me, Nwagwu has killed me”.
5. Running into his father’s room P.W.2 encountered Gabriel Egbunugwu, Chukwuemeka Egbunugwu and Okekenwa Kalu (2nd, 4th and 3rd appellants). They pushed him down.
6. At this juncture Sunday Onuoha ran out of his father’s room. He (1st appellant) had a dane gun – “the gun he used in shooting my father.”

At this juncture, it is as clear as crystal that P.W.2 knew when his father died; he also knew that he was shot by 1st appellant who was in the company of 2nd, 3rd and 4th appellants.

Question No. 1 is – what will be expected of P.W.2 who knew that his father was shot and who knew those who shot him The obvious answer is that in his report to the Police he will mention all the appellants by name. He knew them all before and by name. But did he do that The answer will be found in the testimony of P.W.4, Sergeant No. 14880 Lawrence Amaechi to whom a report of the death of Nwadike Ezealor was lodged by P.W.2 on the very night of the alleged murder 21/3/81. At p.14 lines 21 to 23 P.W.4 testified under cross examination:-

“When the complaint was lodged no names were mentioned as the culprits. But the complainant said some people shot the deceased….As a result of the complaint about 10 people were arrested.”

It is either that P.W.2 knew those who shot his father on the night of 21/3/81 or he did not. His failure to mention the 4 appellants by name is very strong circumstantial evidence tending to show that P. W.2 did not know those who shot his father.

Secondly, the arrest of 10 people rather than 4 clearly indicates that the Police were on a sort of wild goose chase for all those who had land disputes with the deceased. The 1st appellant at p.17 lines 14 & 16, confirmed that:-

“I am accused of murdering the deceased by P.W.2 and P.W.3 because they knew I had a land case with their father.”

P.W.2 in his evidence at p.8 lines 27-28 confirmed this land case. Also P. W.3 Edith Igweanyiba the daughter of the deceased confirmed at p.11 lines 18-19 that:-

“All the accused persons in this case had land dispute with my father.”

The very existence of this land dispute between all the Appellants and the deceased (father of P.W.2 and P.W.3) is like a double edged sword. It might be the reason for the shooting of the deceased by the Appellants OR the reason for P. W.2 and P. W.3 falsely accusing the Appellants of shooting their father. Since these two are possibilities a trial court will be duty bound to check these possibilities, against the actual probabilities of this case. And it is here that the evidence of P.W.2 fails woefully. If he saw the 4 Appellants shoot his father and he knew them all before that event, it would have been expected of him to mention their names to the Police. His failure to mention the names of the appellants to the Police I repeat again is a very strong circumstantial evidence that he (P.W.2) did not see them (the appellants) shoot the deceased. And if the evidence that P.W.2 saw the appellants run out of his father’s room on the night of 21/3/81 is discounted (as it should have been) there is then no other evidence direct or circumstantial linking the Appellants with this crime. In Nwabueze & anor v The State (1988) 4 N.W.L.R. (Pt.86) 16, this very point was considered by this Court and there this Court per Kawu, J.S.C. at p.27 held that

“I am of the view that if the learned trial Judge had given proper consideration to the inconsistency in the evidence of P.W.2 and P.W.3 and their previous statements, he would have come to the conclusion that it would have been unsafe to convict them on such evidence. Where, as in this case, there are inconsistencies in the prosecution’s evidence such as to cast reasonable doubt on the guilt of the accused person such accused person should be given the benefit of the doubt.”

The mere fact that P.W.2 who knew all the appellants very well (he and the appellants are all related) did not give their names to the Police (P.W.4) as those who killed the deceased on the night of 21/3/81 should create a doubt about the veracity of his story and the benefit of such a doubt should have been given to the Appellants. This was not done by the two courts below. This appeal will therefore succeed on this ground. This same point of failure to mention the name of any accused to the Police was taken up again in Ngwo Kalu v. The State (1988) 10-11 S.C.N.J.1 at p.9. Learned Legal Adviser L.M. Amadi who appeared for the respondent in the present appeal, and who also appealed in Nwabueze and Ngwo Kalu supra confessed that in view of this Court’s decision in the two cases mentioned above, he has very great difficulty in supporting the convictions in this case.” And he is right.

There is another aspect of the treatment of the evidence of P.W.2 by the Court of Appeal that I will like to comment on. Is an appellate court in a situation of total and complete helplessness simply because the trial court says I believe the P.W.2 At pp. 154/155 the Court of Appeal observed:

I have earlier on stated that the prosecution’s case rested on the evidence of P.W.2.This evidence leaves no room for serious contradiction and none had been offered at the trial. There was also no room for mistaken identity as the witness knew all the appellants very well and from the evidence they were all closely related to him. There are only two possible verdicts on his evidence. It is either true or false The function of assessing the veracity of witnesses is that of the trial Judge. It is the trial Judge who saw and heard the witnesses and who watched their demeanour in the witness box and is therefore in the best position to assess the veracity of the witnesses.

In the present appeal the learned trial Judge concluded as follows in respect of the evidence of P.W.2 (page 55 of Record):

“I believe the evidence of P.W.2”

And at p.156 the learned President of the Court of Appeal concluded:-

“From the above passages it could be seen that the learned trial Judge after very careful consideration of the evidence of P.W.2 and all the surrounding circumstances including the evidence of the Appellants, concluded that P.W.2 was speaking the truth and accepted the said evidence.”

I agree with the propositions of law regarding the guiding principles that it is the function of the trial Judge to believe or disbelieve. No appellate court can ever believe or disbelieve witnesses it never saw or heard and whose bearing and demeanour in the witness box it did not watch. Having said that, one should quickly add that there are many hallowed and time honoured factors to be considered when dealing with the question of veracity and credibility of a witness and prominent among these are:-

1. His knowledge of the facts to which he testifies
2. His disinterestedness
3. His integrity
4. Whether the evidence is contradictory or is contradicted by the surrounding circumstances.

The deceased was the father of P. W.2. The Appellants have had long standing land disputes with the deceased to the knowledge of P. W.2. Just how disinterested would P.W.2 be in his evidence This then imposed on the trial court the obligation to regard and view the evidence of P.W.2 rather critically and satisfy itself that there is no danger in believing it and acting on it. Now when P.W.2 who saw the appellants kill his father went to the Police on the very same fateful night of 21/3/81 to report the death and failed to mention the name of any of the Appellants to P.W4 the Police Sergeant, then there is something wrong somewhere. This failure to charge or accuse the appellants of the murder raises a very serious doubt about the veracity of P.W.2. Did he really see the Appellants that night The parties live close by each other. Why did P.W.2 not raise an alarm to alert the villagers Why did P.W.2 not shout the names of the Appellants around the village All these questions naturally suggest themselves and should have suggested themselves to any trial Judge. There is evidence that all the 10 people arrested (including the Appellants) were those who had land cases with the deceased. Was it then the case that P.W.2 did not see the Appellants kill his father He only suspected them as he did the other 6 because they had land cases with his father. With this analysis it becomes quite obvious that the evidence of P.W.2 is contradicted by the surrounding circumstances of this case as well as by the evidence of P.W.4 and it was quite unsafe to believe it (evidence of P.W.2)

I will now repeat what I have said on many similar occasions. There is no magic in the words ‘I believe’ or ‘I do not believe.” These words will not and cannot turn an apparent falsehood into truth and vice versa. Belief and disbelief should really represent a fair and impartial appraisal of all the facts and surrounding circumstances of any given case. They should represent the court’s reaction not only to facts but also to possibilities and probabilities naturally arising from those facts. If a trial court chooses to believe an impossible or improbable story, an appellate court has a duty to reverse any decision based on such belief see R. v. Frank Rice (1928) 20 CR. App. R. 21 at p.23 See also R. v. Nwabueze and Ngwo Kalu supra.

I will now deal with Issue No.1 as formulated in the Brief of 1st appellant:-

(1) Whether the judgment of the High Court, Owerri, upheld by the Court of Appeal was not perverse in that the trial was unfair so that the verdict of guilty must be regarded as unsafe and unsatisfactory having regard to:

(a) ……………………………

(b) the trial Judge’s calling of two witnesses suo motu

(c) …………………………….

In the Brief filed on behalf of the 2nd, 3rd & 4th appellants, Issue for Determination No. 1 was formulated thus:

“3.1 whether the calling of witnesses (Joel Iheanacho and Nwaegesi Ezealor) by the trial court after the close of the case of both the prosecution and defence, when there was nothing arising “ex improviso” in the case presented by the defence, was proper and did not occasion a miscarriage of justice.”

These two issues deal with the propriety or otherwise of a trial Judge calling witnesses in a case over which he should preside as an impartial arbiter. Under the Adversary System which we operate here in Nigeria, parties alone take issues with one another. The court as the judex cannot and does not. The need to call witnesses arises from the onus on a party to establish its own side of any given issue. Since the court does not take issues with either party, the court has no business calling witnesses except as, and where so provided by any written law.

Is there any such law in criminal cases The answer appears to be yes. Section 200 of the Criminal Procedure Law Cap. 31 of Laws of Eastern Nigeria applicable to Imo State provides:

“200. The court at any stage of any trial, inquiry or other proceedings under this Law may call any person as a witness or recall and re-examine any person already examined and the court shall examine or recall and re-examine any such person if his evidence appears to the court to be essential to the just decision of the case.” (the underlining is mine for emphasis)

The underlined portions of the above Section do appear to confer very wide powers on the court. Certainly at any stage of the trial if it means what it says will include any period after the close of the defence. The only qualification or restraint the Section imposes is that the decision to call or recall witnesses should be taken only to ensure a just decision.

This Section – 200 C.P.L. – has been the subject of very many judicial decisions explaining the need for this judicial interference and also setting the limits thereof as follows:

1. After the close of the case for the defence, the trial Judge can call a witness proprio motu or suo motu if, and only if, the defence has set up a case ex improviso, which no human ingenuity can foresee. But even here it should be made quite clear that the evidence is not such as is only calculated to do an injustice to the accused but one essential to a just decision of the case. R. v. Dora Harris (1928) 20 Cr. App. R 86 at p.89: 28 Cox. C.C. 432 at pp.435/436.

The point being made here is that when the prosecution’s case has been closed the prosecution stand or fall by the evidence it has adduced. If that evidence is successfully contradicted by the defence that will not be a reason for the prosecution or the Judge to resort to Section 200 C.P.L. and call further evidence merely to contradict the defence. In the local case of Rex v. Asuquo Edem & ors. (1943) 9 W.A.C.A. 2S the appellants were charged with murder. It was the prosecution’s case that the motive of the murder was G the belief that the murdered man had caused the death of another person by means of witchcraft. One of the appellants introduced in his defence, fresh matter relating to native custom in cases of suspected witchcraft, which, if true, could have seriously discredited the evidence of the prosecution witnesses. The trial Judge thereupon called a Native Chief, who had been sitting in Court to testify as to his knowledge of this custom raised ex improviso. The West African Court of Appeal held that:

the calling of the witness Umo Iduk was a proper procedure….. in other words that witness was called to clear up a point which had arisen ex improviso on the part of the accused.”

The more important point to note in Asuquo Edem’s case supra is the further observation of the court at p.27, that even if the calling of this witness was irregular yet no substantial miscarriage of justice had actually occurred. The overriding concern of an appellate court in these matters is to see to it that no miscarriage of justice was or had been occasioned by the wrongful use of Section 200 C.P.L. by the trial Judge:-

2. As far as the case now on appeal is concerned, the defence of each of the appellants was an alibi. There is nothing ex improviso about that defence. It is the commonest of defences. It does not require any particular ingenuity but ordinary common sense on the part of the prosecution to conceive that a person accused may come to court to say – I did not do it. I was not at the scene and time of the crime. This is what alibi means and that was the defence of each appellant in this appeal. The setting up of the defence of alibi will, therefore, not be a sufficient reason for the learned trial Judge in this case to call the two witnesses he called proprio motu:- See R. v. Stanley Liddle (1928) 21 CR. App. R.3 at p.13
3. The learned trial Judge commented at p.48 lines 4 to 9 of the record of proceeding as follows:

There being evidence that the first, second, third and fourth accused persons were seen at the scene of the offence at the time the offence was committed, and there being evidence by them that they were not there, a straight issue of credibility arises.

This is so, and so far so good. The learned trial Judge was then bound to resolve this straight forward issue from the evidence before the Court evidence of the prosecution and the defence at the close of the defence. But in this case the learned trial Judge did not do that, instead he called two further witnesses and devoted a total of six pages of his judgment comparing the evidence led by the Appellants in their defence with the evidence he elicited from the two witnesses he himself called and because the two conflicted, he decided to disbelieve the appellants and ended up at p.53 lines 20 to 24 thus:-

“from the observations made above, the reason why the defence was reluctant to call Joel Iheanacho as witness is clear. It is that if he was called, his evidence would be adverse and unfavourable to them. They required him to establish their alibi in the face of the evidence of P.W.2.”

Now the appellants in their Statement to the Police raised this same issue of alibi. There is never an onus on the defence to prove its case beyond reasonable doubt. But there is one on the prosecution.

If the prosecution thought it fit to rebut the alibi of the appellants it was its duty (not that of the learned trial Judge) to have called Joel Iheanacho whose name appeared as one of the witnesses for the prosecution. Since the learned trial Judge used the evidence of Joel Iheanacho to discredit the alibi of the appellants it follows that he used the said evidence to strengthen, prop up and fortify the case of the prosecution against the appellants. This is a very wrong course to take, as the additional evidence called by the learned trial Judge was seriously prejudicial to the appellants and radically altered the position that existed at the close of the defence. This obviously amounted to an injustice against the appellants. It also amounted to an abuse of the power to call witnesses given by Section 200 of the Criminal Procedure Law:- R. v. Egwuatu (1940) 6 W.A.C.A. 79 at pp.81/82

If at the close of the defence the totality of the evidence causes the trial Judge to doubt, the law is that the benefit of such a doubt be given to the accused. It is definitely not our law that a trial Judge should invoke Section 200 C.P.L. and call his own witnesses in order to clear that doubt, see Dickson Ejukolem v. I.G. of Police (1952) 14 W.A.C.A. 161; Horvat v. Police (1952) 20 N.L.R. 52 at p,54, The power to call or recall witnesses after the close of the defence should be used with the greatest caution:- West v. Police (1952) 20 N.L.R. 71 at p.72.

In our Adversary System, the role of the Judge is passive, while that of counsel is rather active. A Judge should not appear to be a participant otherwise, he will not be seen to be holding the scales of justice fairly, evenly and impartially. At p.39 lines 11 to 15 of the record of proceedings the learned trial Judge observed:

“I decided to call Nwege and Joel Iheanacho who featured so much in these proceedings to give evidence because it appeared to me that their evidence was essential to the just decision of the case.”

I agree that Section 200 C.P.L. did use the expression “if his evidence appears to the court to be essential to the just decision of the case.” But a just decision of the case” will be a decision in accord with the many, many authorities and previous decision of our Courts as well as English decisions which our Courts have followed or adopted. A decision that throws all our existing authorities to the wind, will no doubt be an alarming decision, but hardly a just decision. May be what the learned trial Judge did by calling these two witnesses, after the close of the defence, may have favour in an inquisitorial system but definitely not in our adversary system, where the court is not allowed to call its own witnesses simply to strengthen the case of the prosecution: The Queen v. Aderogba (1960) 5 F.S.C. 212 at p.215. Such a course of action work an injustice to the appellants and the discretion given to the court by Section 200 C.P.L. cannot be stretched that far:- Commissioner of Police v. Sanni Olatilewa (1958) W.R.N.L.R. 200 at p.202.

Still on the issue of “a just decision” which Section 200 C.P.L envisaged just how just will proceedings be where a trial Judge cross-examined at length, a witness he himself called asking a total of 13 questions (see pp.27 G to 28 of the record of proceedings).

Where may I ask, did the learned trial Judge get the materials for this long cross-examination In Grace Akinfe v. The State (1988) 3 N.W.L.R. (Pt.85) 729 this Court pointed out the difference between the Adversary and the Inquisitorial systems and stressed the duty of all trial courts to hold an even balance between the parties and condemned in no uncertain terms the tendency of any trial Judge asking too many questions especially where as in the case on appeal, such questions were not designed merely to clear ambiguities but to elicit facts unfavourable to an accused person, When a trial Judge thus descends into the arena of conflict and compromises his impartial posture, his resultant decision cannot be regarded as “a just decision” even if he pretended to be acting under Section 200 C.P.L. It is thus my view and with the greatest respect to the two courts below, that the use the learned trial judge made of Section 200 C.P.L. in calling and cross-examining his 2 witnesses was highly irregular and unjustified.

This appeal will also succeed on this issue. Having thus decided the two major Issues for Determination considered above in favour of the Appellants no useful purpose will be served in considering the other Issues as formulated in the Appellants’ Briefs including the issue of common purpose.

In the final result this appeal succeeds. The conviction and sentence of death passed on each of the Appellants by the trial court are hereby quashed. The judgment of the Court of Appeal affirming the convictions and sentences of the trial court is hereby set aside. The Appellants are each found Not Guilty and accordingly, each is acquitted and discharged.

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SC.55/1987