The State V. Collins Ojo Aibangbee & Anor. (1988)

LawGlobal-Hub Lead Judgment Report

ESO, J.S.C. 

This is an unusual appeal, in the sense that it is the prosecutor, and not the persons accused of the offence in the trial Court, that has appealed to this Court. In the Court of Appeal, the first Respondent herein was the Appellant as he was convicted by the trial Court. The State appealed against the discharge of the 2nd Respondent herein.

It is better to state the facts. And these facts are as contained in the evidence of the 3rd prosecution witness Moses Isumu, a day-watch in the employment of one S. I. O. Giwa-Amu.

On the fateful day, five people (including the driver) drove a blue car a Peugeot 404 Saloon, into the premises of the said Giwa-Amu. One of the occupants of the car came out, (he was Collins Aibangbee) asked Isumu if Giwa-Amu was in the office. Isumu told Aibangbee that Giwa-Amu had not yet been in the office. That man (Aibangbee) looked at his watch and said that Giwa-Amu ought to have been in the office as the time was already about 10 o’clock in the morning.

At that time, Daniel Kayode Giwa-Amu (the deceased) was already in the office. For he opened his office window, and called Aibangbee. Following this call, Aibangbee and another occupant of the car went up to the deceased’s office. The two came back, went into their car, and they drove away with the others. But, again, they came back. This time, they drove into the premises. Four came out of the car, leaving the driver inside. Two entered the office, the other two were outside. Gun shots were heard from inside the office and as Isumu attempted to rush inside to find out what happened, Obasuyi, one of the two outside, held his shirt, pointed a gun at him and threatened to shoot him if he shouted. Aibangbee and the other man, who had entered the office came out. All four entered their car and drove off.

The deceased had been shot on the chest and head, lying on the ground, blood gushing out from his head and chest.

During the police investigation, Isumu told the police he could identify the culprits. An identification parade was eventually mounted, there were ten people on the line but the witness identified 1st and 2nd Respondents.

Isumu was the only eye witness. His evidence would be of the most importance and hence he was rigorously cross-examined by the learned counsel representing both Respondents. The learned trial Judge R. A. I. Ogbobine J. realised that. He called the cross-examination onslaught and said-

“Be that as it may, at the time the assailants came to the premises at about 10a.m. on the fateful day they met the gateman Moses Isumu (P.W.3) who was the principal witness in this case and he testified before me. It does appear to me that the entire prosecution of this case rested very squarely on the statements made by him to the police and the evidence given in court by him. He was thoroughly examined, giving evidence on what he saw and did. I was satisfied that he properly withstood the agony of counsel’s onslaught on him.”

(Italics supplied)

The medical officer who examined the corpse certified the cause of death of the deceased to be due to “fatal head injuries and haemorrhage shock caused by gun shots”. He said,

“At least, two different guns were used. The shots could not have been self-inflicted.”

With regard to this evidence, the learned trial Judge held it corroborated the story of Isumu that the deceased was shot.

The whole case therefore rested on the ability and opportunity of Isumu to identify the culprits who did it. The deceased was shot. Four people came with a driver to the scene prior to the shooting. Two of them went in and shot the deceased. One of the other two held the shirt of the witness and at gun point threatened to kill him if he shouted. Who were the culprits Were the two identified by the witness among the four that perpetrated such a dastardly and inhumane act even during bright day light Let us see the reaction of the two accused.

The evidence of 1st accused (now 1st Respondent) Aibangbee was a complete denial and an alibi. A full time politician, an Assistant to the Commissioner in the Governor’s Office before the Military took over, he was on the fateful day in his office from 7.30a.m. till 12 noon when he left for Eguaeholor except for submitting a Bendel Brewery receipt to one Ogboro between 10 and 10.30a.m. Ogboro was the Cashier in the Governor’s Office premises. On his way to Eguaeholor he stopped at a 1st Circular Road/Sakpoba Road Junction and joined the 2nd accused for a drink before leaving for Eguaholor. He heard of the death of the deceased while drinking at that spot. He said he had known the 3rd prosecution witness Isumu for two years previous and he had political disagreement with him.

There was an identification parade where the first Respondent was identified by the 3rd prosecution witness as one of the culprits. The following was his account of that parade.

The Superintendent of Police asked the 1st and 2nd Respondent to dress properly. That the 2nd Respondent should put on a shirt and trousers as that was how the people who killed the deceased were dressed that day. Though the 2nd Respondent said he was happy with what he wore the Police insisted he should put on a black shirt. In the process, the 2nd Respondent was beaten up. On the parade line only the two Respondents were in black shirt.

The Respondent also testified that he had known the 2nd prosecution witness Isumu for two years previous and they had quarrelled during the election. The Second Respondent, a full time politician also denied the charge. He did not go near the spot of the incident. It was his driver who told him that the deceased had been killed.

From all the evidence before the learned trial Judge, there was no doubt whatsoever that the deceased was fouly murdered. What the court had to do was to determine whether or not the two appellants took part in the vile deed.

Ogbobine J. analysed the facts and said of the 3rd prosecution witness and the two Respondents –

“Finally, I do believe and find as a fact that Moses Isumu (P.W.3) had full and clear opportunity to view and identify the 1st accused when the 1st accused visited his place of work on two occasions that morning of the incident. On the other hand, the opportunity he had to study and know the 2nd accused especially when it happened after the deceased had been shot could not be said to be entirely certain. His emotional condition, unsettled mind and the natural fear induced into his mind, caused by the gun shots in the office and the threat to his life would make it difficult to say conclusively that he actually and properly recognised the man who so held him. Secondly, his earliest description of 2nd accused could fit any number of persons within anytime, and it would not be safe for anyone to conclude without having some doubt in his mind that it was 2nd accused who held him.”

(italics supplied)

He found the first Respondent guilty, convicted him and sentenced him to death while he found the 2nd Respondent not guilty, acquitted and discharged him.

The drama then shifted to the Court of Appeal, and as it would be expected Aibangbee appealed against his conviction, while the State, acting under section 221(1) of the Constitution of the Federal Republic of Nigeria, appealed against the discharge and acquittal of Obasuyi. An application for leave to appeal had to be and was accordingly made by the State in regard to their appeal against this acquittal of Obasuyi, the application first came before Akpovi, J. who ruled. –

“I think from the showing of the applicant, the State is entitled to a right of appeal in this case.”

it finally landed before Ogbobine, J. who originally tried the case and on 31st May 1985 the learned trial Judge granted leave to appeal against the discharge and acquittal of Obasuyi.

In the Court of Appeal (Agbaje, Musdapher and Wallace Macaulay J.C.A.) the two appeals were thoroughly argued and the Court as per Agbaje, J.C.A., as he then was, having set down the facts and arguments both in the Briefs and oral submissions before him went on and considered the passage in the judgment of the learned trial Judge which I have earlier set down. He said, and I have to crave the indulgence of your Lordships to quote the learned Justice in extenso having regard to the fact that his reasoning which I would deal with presently, is contained therein. He said-

“As I have said earlier on in this judgment, the complaint of counsel for both parties in this case is about the use the learned trial Judge made of the identification evidence of P.W.3 when considering the case against the 1st and 2nd accused persons. I must therefore now go on to state the views of the learned trial Judge on the evidence of P.W.3 First, I refer the following passage:-

“Be that as it may, at the time the assailants came to the premises at about 10.00 a.m. on the fateful day, they met the gateman Moses Isumu (P.W.3) who was the principal witness in this case and he testified before me. It does appear to me that the entire prosecution of this case rested very squarely on the statements made by him to the Police and the evidence given in court by him. He was thoroughly examined, giving evidence on what he saw and did. I was satisfied that he properly withstood the agony of counsel’s onslaught on him.”

(italics supplied)

It is clear from this passage from the judgment of the learned trial Judge that the trial Judge appreciated it that P.W. 3 was the star witness for the prosecution and that the entire case for the prosecution rested on the evidence of this witness. Because the learned trial Judge said in the above passage from his judgment:

“I was satisfied that he (P.W. 3) properly withstood the agony of counsel’s onslaught on him.”

counsel for the State Mr. M. I. Edokpayi, has asked us to hold that in this passage from the judgment of the learned trial Judge, the latter has accepted the whole of the evidence of P. W.3 touching the two accused persons. I am afraid, I do not share that view. The following sentence from the judgment of the learned trial Judge immediately following the one I have just quoted will show that at that stage in his judgment, the learned trial Judge had not formed any concluded views on the evidence given by P.W.3 The sentence is as follows:-

“We shall now discuss the case which the prosecution put forward against each of the two accused persons.”

In the passage upon which learned counsel for the State was relying for his submission that the learned trial Judge had accepted the evidence of P.W.3 against both accused persons, the learned trial Judge was, in my view, saying no more or less than that P.W.3 stood his ground under cross-examination. In that passage, the learned Judge had not, in my view, expressed any opinion on the evidence P. W. 3 gave against both accused persons. (italics supplied)

Further down in the judgment the learned J.C.A. again reproduced a portion from page 81 of Best on evidence (10 Edition) wherein it was stated:-

“There is a strong and marked difference as to the effect of evidence in civil and criminal proceedings. In the former, a mere preponderance of probability, due regard being had to the burden of proof, is a sufficient basis of decision; but in the latter, especially when the offence charged amounts to treason or felony, a much higher degree of assurance is required. The serious consequences of an erroneous condemnation both to the accused and society, the immeasurable greater evils which flows from it than from an erroneous acquittal, have induced the laws of every wise and civilized nation to lay down the principle, though often lost sight of in practice, that the persuasion of guilt ought to amount to a moral certainty; or, as an eminent Judge expressed it, ‘such a moral certainty as convinces the minds of the tribunal; as reasonable men beyond all reasonable doubts.”

Regrettably, this consideration cannot be extended to 1st accused in view of the fact that the circumstances of his own case are separate and distinct from that of 2nd accused.”

The core of this long dissertation is-

1. In regard to both accused persons the satisfaction of the trial Judge that Isumu properly withstood the “agony of counsel’s onslaught on him” was not indicative that the Judge had accepted the whole of the evidence of Isumu touching the two accused persons.
2. The statement by the Judge that he would “now discuss the case the prosecution put forward against each of the two accused” showed that the Judge had not “formed any concluded views on the evidence” of Isumu. He, the Judge had not expressed any opinion on the evidence of Isumu against both accused persons.
3. The passage where the Judge held – “I do believe and find as a fact that Moses Isumu (P.W.3) had full and clear opportunity to view and identify the first accused….. on two occasions” was where he expressed his view implicating first accused.
4. In regard to second accused, it is the same passage, where he said further that the opportunity Isumu had to study and know that accused, especially when it happened after the deceased had been shot, that could be applied to the second accused (Obasuyi).
5. The reason for the trial Judge’s conclusion on 2nd accused was the “emotional condition, unsettled mind,” which were caused by “the gunshots in the office”. There was also a threat to Isumu’s life and that would make it difficult to say conclusively that Isumu actually and properly recognised the man who so held him.
6. The Judge further added to this reasoning the earliest description of 2nd accused which was capable of fitting any number of persons within anytime.

As a result of this dissertation the learned Justice of the Court of Appeal was of the opinion –

1. That the circumstances surrounding the identification evidence which Isumu gave could not be separated in regard to the two accused persons.
2. That the trial Judge having held the inseparateness of the identification evidence and that he was not free from doubt as regards 2nd accused he should have held “at least for purpose of consistency that the same evidence is not free from doubt as regards the case against the first accused.”

Then the learned Justice concluded, upon this aforesaid logical reasoning –

“But the situation now as we know it is that the learned trial Judge had not done what I have just said he should have done for the purposes of consistency. The conclusion I reach therefore, is that the learned trial Judge in so far as he held that the identification evidence of P.W.3 which we are all agreed is the same as far as the opportunity he had of identifying the accused persons is concerned on the fateful day, is reliable in so far as It touches the other accused person, but unreliable in so far as it touches the other accused person, had made two inconsistent findings.”

And he said his problem was to resolve this inconsistency. How did he resolve it For that is the interesting point relevant to the appeal now before us. Agbaje, J.C.A. (as he then was) said-

“That is to say, is it by striking down the acquittal of the 2nd accused, thereby upholding the appeal of the State and thus being left with the finding that the identification evidence P.W.3 gave was reliable or is it by allowing the appeal of the 1st accused on the ground that the identification evidence P. W.3 gave was unreliable as the learned trial Judge had found in the case of the 2nd accused. There is no doubt that both the 1st accused and the State are in this case, exercising their constitutional rights by bringing this appeal to this court. I have earlier on said in this judgment that the points taken by both counsel for the 1st accused – appellant, and counsel for the State, are well taken. But the fact remains that in this case, the 1st accused was the one facing the prosecution by the State in the lower Court and it is my view that in a situation like this, where we have two inconsistent findings by the trial Judge, the one more favourable to the accused should be taken by the Appellate Court.”

But with utmost respect, it would appear the learned Justice of the Court of Appeal was not fully settled in his mind by the wisdom of the conclusion he had reached for he went on –

“On the evidence P. W.3 gave, the learned trial Judge could, with legal justification, come to the conclusion, regard being had to the impression the evidence made on him, that the evidence was either reliable or unreliable. I should say a bit more on what I have just said. As I have said earlier on in the judgment, the learned trial Judge said that the P.W.3 was not shaken in cross-examination. If he had gone on to say further that he was satisfied that he had a full and clear opportunity of identifying the accused persons on the day in question, then he could at that moment say that the identification evidence he gave touching both accused was reliable.”

This, as it would seem to appear to me is now dwelling on semantics. The learned Justice is saying in other words if the trial Court had used certain words (but yet the same situation) he could have concluded that the evidence of Isumu on both accused persons was “reliable”.

But the learned Justice did not stop at that. He quickly took a step backwards when he said –

“That does not mean that he could at that stage say he was going to convict the accused persons of the offences with which they are charged.”

Let us stop here for a moment. We have got to a stage where everyone had agreed that Isumu’s evidence was inseparable in regard to both accused persons. The learned Justice had further indicated that the learned trial Judge, if he had couched his statement one way could have concluded that Isumu’s evidence was reliable. We now have to see how a conviction could not be registered on reliable evidence which of course gave a picture of thorough involvement of the accused in the perpetration of this foul murder.

For be it noted, a court of law is a court of cold facts and law and not a court of fiction. Fiction belongs to Alice in Wonderland. Facts belong to the court where the Judge, almost visibly, sees in his mind, a scale – hence it is called an imaginary scale. He feeds facts into either scale, depending on which side gives the evidence. In a criminal case, until the prosecution weighs right down, the Judge does not convict. In a civil case the Judge measures the delicacy of the tilting scale at the time he assesses the evidence. The tilt may be slight yet he gives judgment for the side to whom it tilts. If there is no evidence fed into one of the scales, then it is for whom the bell tolls – It tolls for the empty scale, for eminently, the slightly fed scale wins against the empty scale.

I go back to the reasoning of Agbaje, J.C.A. (as he then was). The learned Justice had said that notwithstanding the reliability of Isumu’s evidence, if so found –

“That does not mean that he (the Judge) could at that stage say he was going to convict the accused persons of the offence.”

And so what next

Agbaje, J.C.A. (as he then was) said-

“But that finding of his would allow him to go further on and try to find if the evidence of P.W.3 which he has held, was reliable, was corroborated by any other evidence before him.”

So now we are on corroboration! But he went on-

“However, if the learned trial Judge, on the impression the evidence of P.W.3 made on him, thought the evidence was suspect and not free from doubt and therefore, unreliable, that would be the end of the matter. The question of finding out whether the evidence was corroborated or not would not arise again.”

Having thus reasoned, the learned Justice was landed with only one conclusion and that was –

“In my view, he could only go either way with legal justification; he could not, in my view, go both ways with legal justification.”

This then was the reasoning of the learned Justice of the Court of Appeal and he concluded. –

“Having held that in a case of inconsistent findings, as we have them here, the course open to the Appellate Court is to take the one most favourable to the accused person, I therefore stick to the finding of the learned trial Judge that the identification evidence given by P.W.3 is suspect and unreliable because the opportunity he had of identifying the accused person was not good enough,. Accordingly, it would not be safe to convict on such evidence.

Having held that the evidence of P.W.3 was unreliable on the finding of the trial Judge which this Court must choose, it follows that the question of finding out whether the evidence was corroborated or whether the alibi of the accused persons is good or bad no longer arise. See R. v. Omisade (Supra). In the result, the appeal of the appellant – Collins Ojo Aibangbee is hereby allowed by me. His conviction and sentence are hereby set aside by me; in their place, I hereby enter an order of discharge and acquittal. I dismiss the appeal by the State.”

The other Justices of the Court agreed.

As both accused persons had now been discharged, the State appealed to this Court against the discharge and acquittal of Aibangbee and the dismissal of the appeal by the State against the discharge and acquittal of Obasuyi. There were nine grounds of appeal filed with the notice. Briefs were filed, Chief G.O.K. Ajayi S.A.N. represented the State (the Appellant) while Mr. Asemota S.A.N. represented the 1st Respondent (Aibangbee) and Urowayino of counsel represented the 2nd Respondent (Obasuyi). The Respondents, though represented were not in court. Having regard to the curious nature of the appeal, (the State being appellant) the severity of the offence, this Court considered it necessary to secure the attendance of the Respondents and we made an order accordingly under section 4(5) of the Judicial etc. Offices & Appeals by Prosecution Act 1963 No.10. Throughout the hearing of this appeal, neither Respondent was in court.

This aspect of the case, I will deal with at the end of this judgment. However, the Briefs filed on behalf of the Appellant by firstly Mr. Alufohai, Senior State Counsel on the original grounds of appeal and later, Chief G.O.K. Ajayi, S.A.N. on the additional grounds of appeal are as follows:-(First, that of Mr. Alufohai) –

A. First Respondent

1. That there was ample evidence given by the 3rd prosecution witness, in regard to the involvement of 1st respondent whom the witness saw three times

(a) when he came to inquire about Giwa-Amu. At that time the 1st Respondent looked at his own watch to determine the time.

(b) 1st Respondent and another man went to the deceased’s office, came out from that office and later drove off.

(c) 1st Respondent came back and entered deceased’s room with another man and shots rang out.

2. In regard to this Respondent, the witness identified him at the Parade ground, and in the Court.
3. That the identity of the first Respondent was not in doubt.
4. The Trial Court so held.
5. The acquittal of the 2nd Respondent should not necessarily mean that the first Respondent should also be acquitted as the circumstances of the identification of the second Respondent were different from that of the first Respondent.
6. The only time the 3rd prosecution witness came in contact with the 2nd Respondent was when he the witness was about to rush inside at the sound of gun shots, that Respondent held 3rd prosecution witness by his shirt, pointed a gun at him, warned him that he would shoot if he shouted.
7. The logic that if one was acquitted the other must necessarily be acquitted also is unacceptable. Second Respondent.
8. As regards 2nd Respondent, the 3rd prosecution witness said he was one of two people “nearest” to him.
9. The speculation and presumption made by the trial Court when he talked about “emotional conduct, unsettled mind and natural fear” inducing the mind of the star witness was without legal evidence.
10. That a Court of Law, while it has duty to consider all evidence has no business to “scrounge for evidence” or indeed should never manufacture evidence.
11. That the Court of Appeal failed to gloss over the trial Courts finding that –

(a) the Judge was satisfied the witness withstood the agony of Counsel’s onslaught on him;

(b) the witness asserted at the first opportunity that he could identify the culprits,

(c) the witness opportunity to study the features of the culprits when they asked questions of him at the scene;

(d) the witness’ description that 1st Respondent had tribal marks and “the other” had bush hair;

(e) the witness’s assertion that he saw the tribal marks when first Respondent was talking to him.

12. The rejection of the story of the 2nd Respondent in its entirety whose evidence was inconsistent with that of his witness.

Chief G.O.K. Ajayi filed grounds of appeal additional to those filed by Mr. Alufohai. The grounds are as follows-

“ADDITIONAL GROUNDS OF APPEAL

1. Error in Law

The Court of Appeal erred in law by altering the finding of fact that P.W. 3 had full and clear opportunity to view and identify the 1st Accused when there was sufficient credible evidence in support of the finding.

2. Error in Law

The Court of Appeal erred in law by failing to hold that the acquittal of the 2nd Accused in the circumstances of this case does not necessarily mean that the 1st Accused was also entitled to acquittal and that the findings of the learned trial Judge were not necessarily inconsistent.

3. Error in Law

The learned Judges of the Court of Appeal erred in law by ignoring the evidence given by the P.W.3 under cross-examination and by misinterpreting the evidence-in-chief of the witness thereby coming to a wrong decision that the identification evidence given by the 3rd P.W. was not separate and distinct in relation to the 1st and 2nd Accused.

4. Error in Law

The Court of Appeal failed to direct its mind to the fact that the learned trial Judge had erroneously allowed his own speculations and presumptions which were not supported by any evidence nor justifiable under the Evidence Act to create doubt in his mind regarding competence of the 3rd P.W. to properly recognise the 2nd Accused at the scene of the crime.

Particulars

(i) There was no evidence as to the “emotional condition, unsettled mind and natural fear in his mind.”

5. Error in Law

The Court of Appeal failed to properly direct itself as to the weight to be attached to the evidence of the 3rd P. W. relating to the 2nd Accused and thereby came to a wrong conclusion.

Particulars

(i) The Court of Appeal glossed over the earlier findings of the learned trial Judge to the following effect:-

“I was satisfied that he properly withstood the agony of counsel’s onslaught on him.”

(ii) The Court of Appeal also overlooked the fact that the 3rd P.W. made prompt and accurate identification of the accused person.

(iii) The Court of Appeal overlooked the fact that the 3rd P.W. had more than ample opportunity to see the faces of the Accused and to identify them at the scene of the crime.

(iv) The learned trial Judge had in effect rejected the defence of alibi put up by the accused persons.

6. Error in Law

The Court of Appeal failed to direct itself to the evidence and to hold that the decision of the learned trial Judge was erroneous in fact and in law, in that the same be tainted by inconsistencies and contradictions.

Particulars

(i) The learned trial Judge held that the 2nd Accused tried to explain his movements from 7.30 a.m. when he left home up to 12.30p.m. when they disappeared in the store of Miss Aideyan when the trial Judge had in fact rejected the supportive evidence of Patrick Enneh D.W.1 in its entirety and had stated that the evidence of the 2nd Accused might not be entirely true.

(ii) The learned trial Judge had decided to acquit the 2nd Accused notwithstanding the fact that he had rejected the evidence of alibi set up to contradict the unchallenged testimony of the 3rd P.W.

7. The decision of the Court of Appeal is unreasonable, unwarranted and cannot be supported having regard to the evidence.”

He argued the additional Brief which followed the filing of the additional grounds of appeal –

1. The learned trial Court never at any time disbelieved any part of the evidence given by the 3rd prosecution witness, Isumu, even in respect of the 2nd Respondent.
2. The three times the 3rd prosecution witness saw the 1st Respondent did not entail seeing the 2nd Respondent.
3. The occasion when the witness saw the 2nd Respondent was after he had heard the gun shots.
4. The Court of Appeal was clearly wrong to have held that the circumstances of identification were so much the same that what went for the 2nd Respondent went also for the 1st Respondent.
5. The learned trial Judge never based his doubt on credibility but on the fact that the 3rd prosecution witness had just heard gun shots inside the house. And the Judge never said that

(a) the witness had no opportunity of seeing the face of the 2nd Respondent but accepted the evidence that 2nd Respondent threatened the 3rd P.W. with a gun in broad day light:

(b) the 3rd P.W. was a particularly timid man or a man without reasonable firmness.

6. A night watchman is a man who in the ordinary course of human affairs, is suffered to be a brave man who would defend the property of the deceased at night and day.
7. The trial Judge volunteered a ludicrous reason for the discharge of the 2nd Respondent.
8. The evidence led in support of alibi by both Respondents was rejected by the learned trial Judge.

In addition to the written Briefs this Court heard oral arguments from learned counsel. Chief Ajayi submitted that it is not true as the Court of Appeal held that-

“Counsel for both sides submitted that the evidence of this witness (sic): third prosecution witness) in so far as it related to the circumstances surrounding the identification evidence he gave is virtually the same with respect to the case presented by the prosecution against both accused persons.”

and that counsel for the State never so submitted and the interpretation placed by the Court of Appeal that

“In other words, counsel for both sides are saying that so far as the opportunity P. W. 3 had on the day in question of identifying 1st and 2nd accused persons is concerned, one cannot say the opportunity is different in one case from that in the other case:”

is an interpretation placed upon an inaccurate statement.

The learned Justice of the Court of Appeal used the erroneous statement of the alleged concessions in the submission of counsel on both sides as his formula for discharging first Respondent if 2nd Respondent was discharged.

Chief Ajayi then referred us to the finding of the trial Court that “regrettably” the consideration of not being satisfied beyond reasonable doubt could not be extended to the 1st Respondent and submitted that the Court of Appeal had no business in interfering with this finding of fact based on credibility.

As regards the 2nd Respondent there was no basis for the conclusion of the trial Court on the so called emotional bearing of the witness. The Judge did not dwell, in regard to the evidence of the witness on this Respondent, on credibility but on an inference not supported by facts.

Mr. Asemota S.A.N. learned Counsel representing the 1st Respondent put up a gallant fight in regard to the identification parade and he described it as faulty. Again it was the submission of learned Counsel that no policeman could arrest the accused persons on the description given by the 3rd P.W.

Mr. Asemota sought leave, and this was granted, to argue what he referred to as additional points. These points were mainly on the identification parade which he again described as faulty. Counsel then submitted that the trial Court had doubt about 2nd Respondent and the whole case should be viewed in that light.

Now to a question by this Court Mr. Asemota conceded that the witness had opportunity of observing the 2nd Respondent and that it was not in the record that he indicated his state of mind.

For his part, Mr. Urowayino, relied on his brief. I think, wisely too, for the case which Mr. Asemota lustily put for the 1st Respondent depended on the success of the 2nd Respondent and Mr. Asemota spent quite some time and a good deal of his submissions upon this.

I have stated the facts and the submissions of learned counsel both in their Briefs and orally in full to give a full picture of this most delicate matter. Three issues came out very clearly and upon this the success or failure of the Appeal lies. They are:-

1. ALIBI: It is most illuminating to recount how the learned trial Judge himself treated this issue. He said, and again I must crave the indulgence of your Lordships to quote in extensor-

“As previously stated the two accused persons denied the charge and severally set up the defence of alibi. The 1st accused in his statement said he was in the Governor’s office, having been taken there earlier in the morning by his driver. In his statement Exhibit ‘K’ he said-

“On the 30th of December, 1983 my driver came to collect me as usual and I reported for my normal duties in the office. I wore a white French suit which was pressed or ironed by my wife. I can remember that there were suppose to be a party in honour of all Commissioners in Orhionmwon L.G.A. at Eguaholor. On that day, before I left I can remember that I submitted one receipt from Bendel Brewery Benin to one Mr. Ogbore who is the Cashier in the Governor’s Office. On the same 30th of December 1983 at about 12 – 12.30p.m. I left the office in company of Mr. Roland Owie in my own car to Eguaholor to attend the party organized in honour of the Commissioners and the Majority Leader of the House of Assembly…..”

That was the part of a statement that was relevant to his defence and the only vital witness mentioned by him was Mr. Roland Owie who gave evidence that he left the office around 7.30a.m. or so and that he neither travelled in 1st accused’s car nor did 1st accused travel in his own car. The other person mentioned by him was Mr. Ogboro a cashier in the Governor’s Office to who he said he gave the receipt between 10- 10.30 a.m. on that day. That hour of the day was certainly not in issue as the event about the death of the deceased had occurred. Further, there could be no two interpretations to the portion of the statement in which he said he left the office in company of Mr. Roland Owie and traveled to Eguaholor for the party. It only meant what it said that he and Mr. Roland Owie travelled in his own vehicle to Eguaholor for the party. If that sentence or statement had been susceptible to two interpretations the duty of the court would have been to hold to the one that was most favourable to the accused. With respect I cannot see what particulars of the alibi put forward by the 1st accused which should have been further considered by the Court because the appearance of the 1st accused at the store of Miss Clara Aideyan (P. W.11) was an event which occurred well after the death of the deceased had taken place because all those who were involved gave the time of their meeting in that store as between 12-12.30 p.m.

Although Miss Clara Aideyan (P.W.11) said that it was not on the date of the death of the deceased that the 1st and 2nd accused with Mr. Dediare met in her store, I am satisfied that no useful purpose would be gained by trying to determine who spoke the truth as at the time of the meeting the deceased had been killed.

If however, one were to make a finding of fact on that issue I believe the evidence of the 1st and 2nd accused persons together with that of Mr. Dediare that it was on 30th December, 1983 that they met in Miss Clara Aideyan’s store at about 12 -12.30 p. m. and that was after the deceased had been killed more than two hours earlier and there was sufficient opportunity for those who killed the deceased to go about freely as infact, they were known to do after killing the deceased. Now in his supplementary statement in which he mentioned a few names, the 1st accused did not specifically say what part those people played in his life. The alibi does not impress me and I do not believe that the police left out what they should have done because nothing specific was mentioned about those people with whom he worked in his office.”

(italics supplied)

This is a most thorough consideration of the defence of Alibi of the 1st Respondent which the Judge rejected and reasonably too. With regard to the alibi put up by the 2nd Respondent the Judge’s consideration goes thus-

“With regard to the 2nd accused he traced his movement right from the morning and starting from his house to No.3, Commercial Avenue where he carried out his contract work. He also called two witnesses, his former driver Patrick Inneh (D.W.1) and Mr. Ebiyon Dediare (D.W.2). Mr. Patrick Inneh was himself a suspect in the case but after the identification parade he was released as he was not identified. He went into the witness box to testify for the 2nd accused and his performance in the witness box was grossly poor and most unimpressive. By the time he finished his evidence, 2nd accused must have been convinced that the witness cut a poor image of himself as a witness in the case.

One would however, overlook the usual fear which is experienced by all witnesses in cases of this magnitude. All I have to say is that he never impressed me and I rejected his evidence in its entirety. There is an aspect of the evidence regarding Mr. Inneh which must also not be forgotten. He was not asked and did not volunteer any evidence with regard to the movement of 2nd accused between the time he left to buy paint and when he returned and as such his evidence could be a secure cover-up for 2nd accused. Now coming to the evidence of Mr. Ebiyon Dediare, I again say that it went to no issue because Mr. Dediare said –

“On 30th December, 1983 I arrived Benin from Warri between 10 – 11 a.m. and headed straight for a premises along Commercial Avenue as I had been given a description of the place by 2nd accused over the telephone.”

As the court was properly reminded by the D.P.P. the operative period for this offence was 9 -10a.m. Mr. Dediare was not sure of the actual hour he arrived Benin City but surely by the time he got to Commercial Avenue the operative hour must have passed and by 11.30 a.m. the crime had been committed and so his evidence with regard to an alibi for 2nd accused holds no water and I reject it.”

(again, italics supplied)

The Court of Appeal said nothing about this and in my view that finding of the learned trial Judge on alibi remains there unchallenged and no complaint can justifiably be made against it.

2. IDENTIFICATION PARADE

Again it is illuminating to set out what the trial Court found in regard to the Parade. in respects of the 1st Respondent and the identification parade the trial Court said –

“The 1st accused did not complain that anything unusual happened to him at the identification parade, except that he and 2nd accused were the only persons who wore black shirts, and that those placed on the parade line with them were younger and neater than they were in their dresses

having been brought from the cells. That could have been so, but it did not make the identification parade either irregular or void, especially as the evidence by both accused persons that they were the only persons on the line who wore black shirts did not convince me at all especially – (i) after looking at the photographs (ii) hearing the evidence of the police officers who conducted it and (iii) these issues were not contained in the statements made by the accused persons after the parade.”

And with regard to the 2nd Respondent the Judge said-

“He said he knew the 2nd accused by his stature and bushy hair. Both accused persons said it was easy to identify them for many reasons –

1. They were compelled to wear black shirts and that as a matter of fact they were the only two persons on the identification parade that wore black shirts.
2. They were much older than the other people introduced into the parade line.
3. They were filthy having been produced from the cells while the others were young men who were neatly dressed, preparatory to an interview for recruitment into the Police Force, and for these reasons the line up was irregular and unsatisfactory.

In the case of the 2nd accused he gave evidence with regard to his brutal treatment by the police which caused him half of a tooth. As was again pointed out by the D.P.P. none of these issues were raised in the subsequent statements made by the accused persons after the parade was regularly conducted but one does not feel happy that the 2nd accused should have the tooth broken in order to compel him to wear a dress especially for the parade. I think that was high-handed and unfair to him.”

No heavy weather was really made of the identification parade apart from the censure passed upon the police by the Judge in regard to the 2nd Respondent. But then, the Court of Appeal, apart from recounting the evidence of the 3rd P.W. about the parade, said nothing about this issue of identification parade, in the consideration of the determination of guilt or non-guilt of the Respondents, and, with respect, as sight must never be lost that this is an appeal from the decision of the Court of Appeal, there is nothing left for this Court to do in regard thereto. This is not trial at first instance. I say this with utmost respect to Mr. Asemota, either from anxiety for his client or from the unusualness of an appeal by the State against discharged Respondents he tended to turn the appeal before us to trial at first instance while addressing us on the issues especially of alibi and identification parade as a court sitting nisi prius. This is regrettable but to be over-looked only having regard to the possibility of a person already acquitted of murder being made to face the sentence of death.

The Brief and supplementary Brief filed by Mr. Asemota raised the issues in the appeal as –

(i) Are the facts and circumstances of the identification of the 1st Respondent the same as that of the 2nd Respondent so that what goes for the 2nd Respondent goes for the first

(ii) Whether this is a case in which the Supreme Court should depart from its practice of not disturbing concurrent findings of facts by the two lower Courts

(iii) Issues 1 and 2 notwithstanding, is there anything on the record of appeal that would make it possible for the Supreme Court to confirm the concurrent finding of fact of the lower Courts.

In other words are there “such defence or defences not specifically put forward but derived from the totality of the evidence on both sides” in favour of the Appellants as provided for in the case of Nwazeke v. The State (1988) 1 NWLR (Pt. 72) P.529″

Nothing could be held to relate to “identification parade” as even in that supplementary as “issues” but, to the identification of the Respondents by the star witness on the scene of the incident, yet learned Senior Advocate argued therein –

“When therefore the two Respondents were arrested on 12/1/84 on “information” it became necessary to conduct an identification parade to test the ability of P.W. 3 to pick out from a group the persons, if they were present whom P.W. 3 said he had seen previously i.e. on 30/12/83. This identification parade took place on 18/1/84. What therefore are the circumstances of identification We must turn to the records. The account of identification was given by the Respondents, in their evidence on oath in Court, corroborated by exhibits, and the trial Judge made findings on the evidence.”…

“9. On the identification parade itself the Judge said:

“Both accused persons said it was easy to identify them for many reasons.

1. They were compelled to wear black shirts and as a matter of fact they were the only two persons on the identification parade that wore black shirts.
2. They were much older than other people introduced into the parade line.
3. They were filthy having been produced from the cells while the others were young men who were neatly dressed, preparatory to an interview for recruitment into the Police Force and for these reasons the line up was irregular and unsatisfactory.”

Can it be said under the circumstance, that the ability of P.W.3 to recognise the man he saw on 30/12/83 was properly tested, the answer is No. In the Instruction to Police Recruits at Police College on Identification parade, Recruits are taught what the composition of an Identification parade should be:

“Composition of Parade: The parade will consist of eight or more persons who are as nearly as possible of

(i) similar height

(ii) similar age.

(iii) similar general appearance and

(iv) similar class or status in life of the accused person. If he accused has any particular peculiarity e.g. a moustache, spectacles, plaster or bandage, other members of the parade must be equipped likewise.” See Instruction Notes Vol. I.

The only conclusion one can draw from these facts is that the case against Respondents is that the Police aided P.W. 3 in the identification parade. The procedure and method of the Respondents identification was most improper.”

Now the appeal is from the decision of the Court of Appeal which said nothing about the fairness vel non, or the regularity vel non of the identification parade in the exercise of arriving at a decision of the star witness’s ability to identify on the spot of crime the culprit. Though Mr. Asemota in his Brief to the Court of Appeal raised the issue of identification parade as a ground of appeal, and the Court of Appeal said nothing about the parade in its decision, Mr. Asemota never filed any application before this Court to have the decision of the Court of Appeal which went in his favour affirmed on grounds of identification parade that is other than the grounds relied upon by that Court. It was in the Supplementary Brief of learned Counsel which we allowed him to put in during the argument that he put in arguments of identification parade though, as I said, the issues which he submitted arose in the Appeal never included this.

But as I have said, we allowed in this argument, and in my respectful view, what is of utmost importance is whether or not, on the evidence before the learned trial Judge, the 3rd prosecution witness credibility of identifying the Respondents as the culprits was shaken, non acceptable or tainted. So this takes me to the 3rd issue.

3. IDENTIFICATION BY 3RD P.W. OF CULPRITS AT THE SCENE OF MURDER.

Agbaje, J.C.A. (as he then was) was fully aware of this issue as being of grand importance in the appeal. He stated it with admirable clarity – The evidence of 3rd prosecution witness-

“I do not think it is necessary for me to set down, in detail, the grounds of appeal of either the 1st accused Collins Ojo Aibangbee or the prosecution. For the purposes of this appeal, it is enough for me to say that both appellants are agreed that the evidence touching the accused persons in this case is that of the 3rd witness for the prosecution. It is the use which the learned trial Judge made of this evidence when considering the case against the two accused persons in this case that is the subject of attack in both appeals now before us.”

He said he had to reproduce in full the evidence in chief of the witness to bring out the pith of the submissions of counsel. And which part of the evidence did the learned Justice of the Court of Appeal consider as material in full It was the evidence of Isumu as to what happened at the scene of the foul murder. Right from the first arrival at the scene of the five people in their Peugeot 404 to his identifying the culprits at the identification parade.

And so the credibility of Isumu must be of the utmost importance to the case. The trial Judge had said himself, and rightly too, that the failure of alibi, does not absolve the prosecution from proving the guilt of the accused beyond all reasonable doubt. Of Isumu, he said –

1. There was no contradiction between the statement he made to the police and his evidence in Court.
2. That he was a stark illiterate but after considering all the lapses in Isumu’s evidence, and watching him in the witness box (that is what a trial Court is there for) he was firmly (not just lightly) of the opinion that Isumu had full and sufficient opportunity to identify 1st Respondent and that Isumu actually recognised him.
3. That he firmly believed (again, not lightly) his evidence with regard to 1st Respondent’s participation in the death of the deceased.

Now this finding, was never faulted in any manner whatsoever by the Court of Appeal. It was for the Judge who said Isumu withstood what he himself referred to as the rigour of cross-examination for three days, who saw Isumu unshaken but, credible, to make this finding. And the finding he made is not perverse having regard to the evidence that Isumu had three clear opportunities of observing this Respondent. He said he did on three occasions. With respect, no where did the Court of Appeal suggest that the finding of the trial Court was perverse. What the Court of Appeal did was to introduce some logic which, with unadulterated respect, is, in the realm of logic, a non sequitur. And I will show this illogically in the reasoning of the learned Justice of Appeal presently, when I deal with the case of the 2nd Respondent. It is now pertinent to go through that logic of the learned Justice of Appeal. He found it clear from the judgment of the trial Court that that Court appreciated the fact that Isumu was the star witness and that the entire case for the prosecution rested upon his evidence. Where the State Prosecutor submitted to the Court of Appeal that the trial Court accepted the whole of the evidence of Isumu touching the two accused persons, Agbaje, J.C.A. as he then was) refused to share that view, because of one sentence by the trial Court. The sentence was –

“We shall now discuss the case which the prosecution put forward against each of the two accused persons.”

And the following is the passage this sentence followed –

“Be that as it may, at the time the assailants came to the premises at about 10.00 a.m. on the fateful day, they met the gateman Moses Isumu (P.W.3) who was the principal witness in this case and he testified before me. It does appear to me that the entire prosecution of this case rested very squarely on the statements made by him to the police and the evidence given in court by him. He was thoroughly examined, giving evidence on what he saw and did. I was satisfied that he properly withstood the agony of counsel’s onslaught on him.”

As a result of the sentence aforesaid, following that passage Agbaje, J.C.A. (as he then was) was of the opinion that the passage I have quoted above meant no more or less than Isumu stood his ground under cross-examination. He added –

“In that passage, the learned trial Judge had not, in my view, expressed any opinion on the evidence which P.W.3 gave against both accused persons.”

But had he not I think, with respect, this was the beginning of the series of misdirection that pervaded the decision of the Court of Appeal. A trial Judge had said (analysing the passage in question)-

(a) the assailants met the witness, Isumu, at the premises at 10.00a.m.

(b) Isumu testified before the Judge as the principal witness.

(c) The entire prosecution case rested squarely on the statements made by Isumu to the Police and the evidence he gave in court.

(d) Isumu was thoroughly examined (that is in Court)

(e) Isumu gave evidence on (and this is important) –

(i) what he saw; and

(ii) what he did.

The Judge, whose duty was to watch the demeanour of Isumu and find on his credibility, concluded that Isumu withstood very well the agony of counsel’s onslaught (that is – cross-examination of counsel) on him.

I start to wonder what else the Judge should have said for the Court of Appeal to appreciate and conclude that the trial Court, which had said all the above, had already formed concluded views on the evidence of Isumu. And the Court of Appeal said it had not formed this view because the trial Judge proceeded to discuss the prosecution case of each of the two accused persons.

It is to be noted that this passage about the case against each accused occurred after the learned trial Judge had set down in full detail the entire case for and against the two accused persons. But let us even go along with the learned Justice of the Court of Appeal and examine each case that is, all, he admissible (but only admissible) evidence, which will be the only legal evidence, in this case against each accused person. I have already dealt with his consideration of the case against the 1st accused which was that the Judge accepted his evidence with regard to the participation of 1st accused.

Now the second accused (that is, the second Respondent herein). The Judge said-

“The opportunity he (Isumu) had to study and know the 2nd accused, especially when it happened after the deceased had been shot could not be said to be entirely certain”

Why

only because, as the Judge said, of-

(a) The witness’ emotional condition;

(b) The witness’ unsettled mind;

(c) The natural fear induced into the witness’ mind caused by gun shots in the office;

(d) The threat to the witness’ life.

All these, he said, would make it difficult to say he actually and properly recognized the man who so held him.

Before I come back to this in regard to the 2nd Respondent how would all these introductions to the case, assuming there is evidence, affect the case of the 1st Respondent Agbaje, J.C.A. (as he then was) said that counsel on both sides, that must be prosecution and defence had submitted that the evidence of Isumu in regard to identification of the accused persons at the scene of incidence was virtually (whatever that means) the same with respect to the case presented by the prosecution against both accused persons.

Well let us go to these alleged submissions of counsel on both sides before the Court of Appeal to see whether or not the learned Justice was right or again there was another misdirection.

In his oral submission to the Court of Appeal, the record put Mr. Asemota S.A.N. as follows-

“Submits that the circumstance surrounding the identification evidence are the same”

…

“Submits that the circumstance of the case against the accused are not separate and distance from those of the 2nd accused”

The record in regard to the State Counsel’s submissions reads-

Counsel submits that the identification evidence given by P.W.3 and P.W.2 (sic) submit on the issues. Submit that the Judge was saying that the circumstance that separate the defendant. Submit that the trial Judge should not have first doubted having regard to his findings at page 66 lines 23 – 25.

Those lines in the record are –

“It does appear to me that the entire prosecution of this case rested very squarely on the statement made by him (Isumu) to the Police and the evidence given in Court by him.”

Urowayino for 2nd Accused/Respondent was recorded as follows-

Submits that the trial Judge should not believe the evidence of P.W.3 in respect of 2nd accused…”

I cannot find support for the statement of Agbaje, J .C.A. (as he then was) to the effect that the prosecution also submitted that the evidence given by Isumu in regard to 1st Respondent is virtually the same as the case presented by the prosecution against the 2nd Respondent. Asemota said so, but not any other counsel and certainly not the prosecution. And so again, the learned Justice misdirected himself. But even suppose all the counsel said so, what the Court of Appeal was called upon to examine by the learned counsel for the Prosecution is contained in that learned counsel’s Brief. And this takes me back to the consideration of the case against the 2nd Respondent.

The Brief says –

“It is submitted that the learned Judge was clearly in error when he allowed his own speculation and presumptions not supported by any legal evidence or the Law of Evidence to create doubt in his mind regarding the competence of PW3 to recognise the 2nd Accused/Respondent at the scene of crime. There was no evidence as to the emotional condition, unsettled mind and natural fear induced in his mind which made it difficult for the learned trial Judge to say conclusively that PW3 actually and properly recognized the man, who so held him as to give the 2nd Accused/Respondent the benefit of doubt.

It is submitted that it is not the duty of any court to speculate upon any possible defences open to accused persons and although it is the duty of the court in a case of murder to consider all the defences fairly raised on the evidence before the court, it is not the business of the court to scrounge for evidence which may have the effect of raising one type of defence or the other in answer to the charge.”

(italics supplied).

Nowhere in the judgment of the Court of Appeal was there any reference to these most pertinent submissions! And instead of going on an illogical excursion of “if the trial Judge exculpated 2nd accused, he should exculpate 1st accused as the evidence is virtually the same with the respect to the case presented by the prosecution against both accused persons,” the enquiry should have been whether the evidence upon which the trial Court acted in respect of 2nd accused which learned State Counsel described to the Court of Appeal as no legal evidence but a discovery by a Judge who “scrounged” for evidence – that is the so called –

emotional condition; unsettled mind; and natural fear induced in his mind was in existence.

Rather, the learned Justice of the Court of Appeal went on that indefensible logic for the ludicrousness of the logic would easily surface if one looks at it from the other angle –

If the Judge found 1st accused guilty why should he not find the 2nd accused guilty upon the same evidence

It is, with respect, the hollowness in such “logic” which indeed, is no logic, that should have set the learned Justice on the correct enquiry of whether or not there was legal and not imaginary evidence before the learned trial Judge, upon which he came to that conclusion of emotion, unsettled and natural fear at the time of commission of the crime! Simply put, who gave such evidence before the Judge Who made submissions to that effect to the Judge Obviously the trial Judge discovered it on his own voyage. Also, the Court of Appeal bit it!!

I have examined and re-examined the record, most especially the almost savage, but thorough cross-examination of the 3rd prosecution witness by learned Counsel for both accused Respondents, no where was any suggestion, indeed remotest suggestion of this imported state of mind of 3rd prosecution witness Isumu, who was cross-examined for three clear days, indeed, not even consecutive days.

There was nothing either in the submission of learned Counsel for the two accused persons (they had joint defence) during his address to the Court of Trial. All learned Counsel of the 2nd accused said in his address was-

“The evidence touching on how 2nd accused was seen was of bad quality – he only saw him in a split second. He did not know the accused persons before that day. That opportunity was not sufficient for him to identify 2nd accused. In his first statement he gave no description which fitted 2nd accused. There was real danger in a Court proceeding to rely on that evidence to convict the 2nd accused. Refers to the Queen v. Turnbull (1976) 3 A.E.R. 549, at pages 551-553. Outside prosecution witness 3, there is no other evidence to support the charge against 2nd accused.”

And so, I ask again, where did the trial Court find that piece of evidence on emotion, mind and fear It is a question that must determine this appeal. And the answer is, as learned Counsel for the State submitted to the Court of Appeal, the case of a Judge making-

“his own speculation and presumptions not supported by any legal evidence or the Law of Evidence.”

It is a case of a speculator upon –

“possible defences open to accused persons” Our law does not permit of such speculation/Judges! It is the case of a Judge who made it his business” to scrounge for evidence which may have the effect of raising one type of defence or the other in answer to the charge.”

It is unknown to the law. A Judge of first instance decides on evidence led by the parties to a case before him. He does not, with respect, concort evidence. He does not imagine evidence. He interprets a situation as per the cold facts before him, not as per what he would have preferred the facts to be. It is unfortunate that the trial Judge in this case went on that voyage, even unsolicited by the defence. It is more unfortunate that a Court of Appeal should permit such fancy to thrive!

In his brief, Mr. G.O.K. Ajayi, S.A.N., said that the trial Court obviously volunteered a “ludicrous” reason for the discharge of the 2nd accused and I am, respectfully, in complete agreement. It is most unfortunate that Agbaje, J.C.A. (as he then was), who is well noted to be a most careful Judge should, as per this decision herein, have fallen into the same error as the trial Court. But that is what the Supreme Court exists to correct.

There is no iota of doubt whatsoever upon the evidence before the trial Court that the two Respondents should have been found guilty by that Court of this dastardy. They should have been convicted of murder and should have been sentenced to death. Their act was too callous for words. They should not live in a decent society.

I will allow the appeal. I hereby make the following order-

1. The appeal of the State is allowed in respect of both Respondents.
2. The judgment and all the orders made by the Court of Appeal are hereby set aside.
3. That part of the decision of the trial Court acquitting and discharging the 2nd Respondent is set aside.
4. Both Respondents –

i. COLLINS OJO AIBANGBEE

ii. MICHAEL OSAGIE OBASUYI

are hereby found guilty and convicted of the murder of Daniel Kayode Giwa-Amu.

5. Collins Ojo Aibangbee is hereby sentenced to death.
6. The sentence of the Court upon Collins Ojo Aibangbee is that he shall be hanged by the neck until he is dead and may the Lord have mercy on his soul.
7. Michael Osagie Obasuyi is hereby sentenced to death.
8. The sentence of the Court upon Michael Osagie Obasuyi is that he shall be hanged by the neck until he is dead and may the Lord have mercy on his soul.

Now, as this is an appeal by the State, the Respondents were not, to start with, obliged to be present in Court once they were represented by counsel. But we did make order for their appearance and ordered bench warrant when they failed to appear, to issue for their production here. The first Respondent was arrested and released on bail by the High Court on our order. He jumped bail and his surety is in custody.

The arrest of both convicts shall be secured by the Police by every conceivable means. They shall be declared wanted persons all over the country and shall be arrested either by the Police or any citizen any where. If they are out of the country assistance of Interpol shall be enlisted to secure their arrest, brought to the country and detained. They shall be detained immediately upon arrest and the sentence of death as pronounced shall lawfully be carried out on them.

I will now dwell on how the administration of Justice has been so seriously scandalised in Bendel State with the active connivance of some officials of the State High Court Registry. Following our order to arrest and produce the Respondents we also gave order that they could be admitted to Bail upon arrest. First Respondent was arrested and given bail by the High Court Benin City (Obi, J.) Bail was in the sum of N10,000.00 and one surety.

The surety was Daniel Ojo Aibangbee. The 1st Respondent jumped bail and we invited the surety Daniel Ojo Aibangbee, the Assistant Chief Registrar, High Court Benin City G. E. Onohwakpor, the clerk of the Court that granted the bail – Emmanuel Okolie, the Messenger F. N. Aikpanyi. All these people in the High Court handled the file dealing with the grant of Bail and the Bail bond signed by Daniel Ojo Aibangbee as surety for Collins Ojo Aibangbee, the 1st Respondent. We were informed by all these people from the High Court that the file had disappeared from the High Court Registry. The disappearance of the file was simultaneously with the disappearance of 1st Respondent after he had signed the Bail Bond.

I think it is most disgraceful that the administration of justice in this country should be clogged in any manner. It is my order that Daniel Ojo Aibangbee, now in custody shall be taken before Obi, J. to answer, in law, to the disappearance of Collins Ojo Aibangbee for whom he stood surety. Our order detaining him shall expire upon his appearance before Obi, J. who shall thenceforth take charge of the issue of suretyship.

I also order that the lapse in the High Court Registry shall be brought to the notice of the Judge Obi, J. and that of the Chief Judge of Bendel State J.A.P. Oki C.J. for whatever action they deem necessary in the circumstance.

One last matter, on 26th November 1987, when Chief G.O.K. Ajayi S.A.N. appeared for the State in this case, Mr. Asemota, S.A.N. raised an objection to his appearance. We had submissions on the matter and Chief Ajayi referred us to the decision of this Court in State v. Gwonto (1983) 3 S.C. 62. There a similar objection was raised to the representation of the same Chief G.O.K. Ajayi, S.A.N. who appeared for the State. The attention of learned counsel in that case who raised the objection, Mr. G. Brown Peterside, S.A.N., was drawn to the decision of the Federal Supreme Court in D.P.P. v. Akozor (1962) 1 All N.L.R. 235 and Nafiu Rabiu v. The State (1980) 8 – 11 S.C. 130. Mr. Peterside abandoned his objection. The matter of representation of the State by a private practitioner, having been fully dealt with in Akozor’s Case and the Nafiu Rabiu Case. I do not think any useful purpose will be served by repeating the reasons the Federal Supreme Court and this Court gave in both cases respectively.

However, as Mr. Asemota, S.A.N. did not withdraw his objections, I hereby rule, as this Court had had occasion to rule before, that “instituting and undertaking” a criminal prosecution within the meaning of s. 191 of the Constitution of the Federal Republic 1979 mean the Attorney-General and his staff can commence and make themselves responsible for criminal prosecutions, and not that they cannot brief private practitioners to appear on behalf of the Attorney-General either alone or together with a member of the Attorney-General staff.

Mr. Asemota’s objection is over-ruled.

---

SC.239/1985