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Clement Oguonzee v The State (1998) – SC

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➥ CASE SUMMARY OF:
Clement Oguonzee v The State (1998) – SC

by Branham-Paul C. Chima

➥ COURT:
Supreme Court – SC.131/97

➥ JUDGEMENT DELIVERED ON:
Friday, the 24th day of April, 1998

➥ AREA(S) OF LAW
Accidental discharge.
Murder.
Expert evidence.

➥ PRINCIPLES OF LAW
⦿ TRIAL JUDGE HAS THE PRIMARY FUNCTION OF EVALUATING EVIDENCE
It is a basic principle of law that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a court of trial which saw, heard and assessed the witnesses while they testified before it. The trial court has the exclusive jurisdiction on matters of appraising evidence and ascribing probative value to the evidence of witnesses whom it had the opportunity of seeing, hearing and observing while in the witness box. Where a court of trial unquestionably evaluates the evidence and justifiably appraises the facts and arrives at a conclusion on the credible evidence, the appellate court will not interfere with such findings of fact nor is it the business of such appellate court to substitute its own views of the facts for those of the trial court. What the appellate court ought to do is to scrutinise the record carefully and find out whether there is evidence on which the trial court could have acted. Once there is such evidence on record from which the trial court arrived at its findings of fact, the appellate court cannot interfere with such findings. See: Mufutau Bakare v. The State (1987) 1 NWLR (Pt.52) 579: Ogundiyan  v. The State (1991) 3NWLR (Pt. 181) 519: Akpagbue v. Ogu (1976) 6 SC 63; Odofin  v. Ayoola (1984) 11 SC 72: Amadi v. Nwosu (1992) 5 NWLR (Pt. 241) 273 at 280 etc. — Iguh, JSC.

⦿ EXCEPT FINDINGS OF FACT ARE PERVERSE, APPEAL COURT WILL NOT INTERFERE IN SUCH FINDINGS
Before I turn to the treatment of the above findings of fact by the Court of Appeal, I think I need re-emphasize that where facts in issue, whether in a criminal or civil proceedings are accepted or believed by the trial court and no question of misdirection arises, an appellate court, will not ordinarily interfere with such findings of fact made by a trial Judge which are supported by evidence simply because there is some other evidence in contradiction of the finding or that if the same facts were before the appellate court, it would not have come to the same decision as the trial Judge. See: Ike v. Ugboaja (1993) 6 NWLR (Pt.301) 539;Odofin v. Ayoola, supra; Ogbero Egri v. Uperi (1974) 1 NMLR  22; Ogundulu & Ors. v. Phillips & Ors. (1973) NMLR 267 etc. This, as already stated, is because findings of fact made by a trial court are matters peculiarly within its exclusive jurisdiction and they are presumed to be correct unless and until an appellant satisfactorily proves that they are wrong. Such trial courts saw the witnesses and heard them testify and unless the findings are perverse or unsupported by credible evidence, the Court of Appeal will not interfere with them. See: Adelumola v. The State (1988) 1 NWLR (Pt.73) 683. An appellate court may however interfere with such findings in circumstances such as where the trial court did not make a proper use of the opportunity of seeing and hearing the witnesses at the trial or where it drew wrong conclusions from accepted credible evidence or took an erroneous view of the evidence adduced before it or its findings of fact are perverse in the sense that they did not flow from the evidence accepted by it. See: Okpiri v. Jonah (1961) 1SCNLR 174; (1961) 1 All NLR 102 at 104-5; Maja v. Stocco (1968) 1 All NLR 141 at 149; Woluchem v. Gudi (1981) 5 SC 291 at 295-6 and 326-9. — Iguh, JSC.

⦿ QUALITY OF EVIDENCE IS MORE RELEVANT THAN THE QUANTITY
The first point that must be made is that a court of law needs not take into account the number of witnesses for each side to a dispute as a relevant factor in deciding which side to succeed. What is primarily relevant is the quality of the evidence adduced before the court. In this regard, Section 179(1) of the Evidence Act provides as follows:- “179(1) Except as provided in this section, no particular number of witnesses shall in any case be required for the proof of any fact.” — Iguh, JSC.

⦿ PROSECUTION MUST NOT CALL ALL WITNESSES, SUFFICIENT WITNESSES ARE ENOUGH
Secondly, it is a well established principle of law that it is not necessary for a person on whom the onus of proof lies, even in criminal cases, to call every available piece of evidence in order to discharge that burden. It is enough if evidence is tendered sufficient to discharge the onus which the law lays upon the prosecution. See: Francis Odili v. The State (1977) 4SC 1 or (1977) 11 NSCC 154 at 158 and Joshua Alonge v.I.G. of Police (1959) SCNLR 516; (1959) 4 FSC 203 or (1959) 1 NSCC 169. In the Francis Odili case, the appellant was convicted and sentenced to death. Following his arrest, the appellant was identified at an identification parade by one of the two Rev. Sisters they violently robbed with arms. At the trial, he pleaded alibi. The learned counsel contended inter alia that the evidence of identification was unreliable and that the prosecution failed to call two other eye witnesses to the incident. On appeal, this court per Alexander C.J.N. stated as follows:- “Counsel’s last submission was that the 2 night guards should have been called as witnesses as they were present throughout………………..The tribunal, in its judgment, pointed out that the defence had an equal opportunity to call the night guards if they considered that the evidence of the night, guards would be favourable to them. The tribunal found no merit in this submission  and we unhesitatingly agree. The prosecution is not required to call very available piece of evidence to prove its case. It is enough if sufficient evidence is called to discharge the onus of proof beyond reasonable doubt.” — Iguh, JSC.

⦿ COURT OF LAW CAN CONVICT ON THE EVIDENCE OF ONE WITNESS
Accordingly, in arriving at a conviction in criminal cases, the court is concerned with whether or not there is sufficient credible evidence of probative value and not the number of witnesses called on an issue. See: Commissioner of Police v. Daniel Kwashie (1953) 14 WACA 319. Where a single witness called by the prosecution is neither an accomplice nor a tainted witness, a court of law is entitled to convict mainly on his credible evidence where his testimony did not by law require corroboration. Once the court is satisfied with the cogency, high quality and credibility of the evidence of a witness and accepts it, conviction based on such evidence should not be interfered with unless such evidence by law requires corroboration. So, in the Daniel Kwashie case, the learned magistrate convicted the appellant on the evidence of one witness. On appeal to the High Court, the learned Judge found that although, corroboration was not required by law, a court was generally reluctant to convict on the evidence of a single witness and proceeded to allow the appeal. On further appeal to the West African Court of Appeal, the appellate judge was reversed and his decision was set aside on the ground that there was sufficient evidence before the learned magistrate on which he based his conviction. It was further held that since the learned magistrate believed the witness and there was no imputation that the sole witness was an accomplice or a tainted witness, it was an error to reverse his decision and the conviction was restored. — Iguh, JSC.

⦿ NOT CALLING VITAL WITNESSES VS NOT CALLING A PARTICULAR WITNESS
The first point that needs be emphasised is that the presumption under section 149(d) of the Evidence Act will only apply against whom it is sought that it should operate where that party has infact withheld the particular piece of evidence in issue and if he did not call any evidence on the point. It only applies when the party does not call any evidence on the issue in controversy and not because he fails to call a particular witness. See: Bello v. Kassim (1969) NSCC 228 at 233; Okunzua v. Amosu (1992) 6 NWLR (Pt. 248) 416 at 435. The section deals with the failure to call evidence on the issue in controversy and not because he fails to call a particular witness. See: Bello v. Kassim (1969) NSCC 228 at 233; Okunzua v. Amosu (1992) 6 NWLR (Pt. 248) 416 at 435. The section deals with the failure to call evidence and not the failure to call a particular witness as a party is not bound to call a particular witness if he thinks he can prove his case otherwise. See: Francis Odili v. The State (1977) 4 SC 1 at 8; Alonge v. inspector-General of Police (1959) SCNLR 516; (1959) 4 FSC 203 etc. Mere failure to produce the evidence in issue would not necessarily amount to withholding such evidence. See: Ganiyu Tewogbade v. Arasi Akande (1968) (Pt. 2) NMLR 404 at 408. So, in Francis Odili v. The State supra, learned defence counsel’s submission was that only one of the two Rev. Sisters robbed with violence was called to identify and to testify against the appellant and that the second Rev. Sister and the two night guards who were present during the robbery should have been called as witnesses particularly as the appellant’s defence was that of alibi. This court as already pointed out dismissed this contention as misconceived as the prosecution was not required to call a host of witnesses to prove a particular issue. — Iguh, JSC.

⦿ WHO IS A TAINTED WITNESS?
A tainted witness has been classified as one who is either an accomplice or by the evidence he gives, whether as a witness for the prosecution or defence, may and could be regarded as having some purpose of his own to serve. See: Ishola v. The  State (1978) NSCC 499 at 509. — Iguh, JSC.

⦿ RELATIONSHIP BY BLOOD CANNOT DISQUALIFY A WITNESS AS BEING A TAINTED WITNESS
The fact that he (PW 4) is a brother to the deceased with but more, cannot in my view make or turn him into a tainted or biased witness. He was not shown to have been an accomplice in the commission of the offence nor that he had any interest or purpose of his own to serve as such witness. Relationship by blood without any more cannot tantamount to a disqualification from being a prosecution witness, and I am not aware of any of our laws which provide as such. Consequently, the evidence of PW 4 in my view requires no corroboration. Ishola v. The State (1978) 9 & 10 SC81; Onafowokan v. The State (1986) 2 NWLR (Pt. 23) 496; Arehia & Anor v. The State (1982) 4SC7 8; Hausa v. The State (1992) 1 NWLR (Pc 219) 600. — Kutigi, JSC.

⦿ PROSECUTION HAS DISCRETION TO CALL ITS IMPORTANT WITNESSES
It is trite law that there is no rule which imposes an obligation on the prosecution to call a host of witnesses; all the prosecution need do is to call enough material witnesses to prove its case, and in so doing it has a discretion in the matter. See: Samuel Adaje v. The State (1979) 6-9 SC 18 at 28. Bako Bahor v. Yaburi NA Police (1970) NMLR 107 at 112; E.O. Okonofua & Anor v. The State (1981) 6-7 SC  1 at 18. See also section 179(1) of the Evidence Act. What is more it is the law that if a witness is not called by the prosecution, the defence is at liberty to do so. — Onu JSC.

➥ LEAD JUDGEMENT DELIVERED BY:
Iguh, J.S.C.

➥ APPEARANCES
⦿ FOR THE APPELLANT
Chief E.L. Akpofure.

⦿ FOR THE RESPONDENT
Mrs. D. Ojo, DPP., Edo State.

➥ CASE FACT/HISTORY
The appellant, Clement Oguonzee, an Assistant Superintendent of Police, was arraigned before the High Court of Justice. Edo State, holden at Benin City, charged with the offence of murder punishable under Section 319(1) of the Criminal Code, Cap. 48. Vol. 11 Laws of Bendel State of Nigeria, 1976 applicable in Edo State. The particulars of the offence charged are as follows:- “Clement Oguonzee (m) on or about the 18th August, 1994 at Oluku Junction, along Benin Lagos Expressway within the Benin Judicial Division shot and murdered one Remigious Mekoba.” The accused pleaded not guilty to the charge and the prosecution called four witnesses at the trial. The accused also testified in his own defence but called no witnesses.

The substance of the charge as presented by the prosecution was that on the 18th day of August, 1994 the deceased, one Remigious Mekoba, and PW 4 his junior brother, were travelling from Lagos to Awomoma in Imo State in a Volvo car driven by the deceased. According to PW 4, the principal witness for the prosecution, at a road check-point between Ugbowo and Oluku near Benin City, along the Benin-Lagos Road, a team of policemen signalled to them to stop. This was at about 9 am in the morning. As they were on speed, the deceased did not see the policemen in time. The deceased after he had slightly driven past the policemen, stopped his car, engaged his reverse gear and drove backwards to the checkpoint In answer to question by one of the policemen as to why he failed to stop, the deceased replied that he had eventually stopped. At that stage, the appellant who was heading the team of policemen walked to their car, flung the driver’s door open. dragged the deceased out of the car and slapped him. When the deceased received the slap, he held his jaw and laid his head in pains on the bonnet of their car. The appellant, next asked the deceased a question which PW 4 did not hear as PW 4 was still inside the car. As the deceased was about to answer the question, the appellant drew backwards to a distance of about seven feet, pointed his gun at the deceased and shot him on the left side of his chest. The deceased immediately held his left chest with both hands and shouted saying “Vincent, I am dying, I am dying, I am dying.” At that stage, PW 4 rushed out of the car to assist his injured brother but they both fell on the ground. When P.W.4 got up, the appellant faced him by pointing the same gun at him but one of the policemen in the team stopped him by shouting “No, no, no” whereupon the appellant abandoned his aim. PW 4 and about four policemen at the scene conveyed the deceased into a waiting police pick-up van but after about three minutes, transferred him into the Volvo car. One of the policemen in company of some of his mates drove the deceased with PW 4 to the University Teaching Hospital, Benin City where the deceased, on arrival, was certified dead. It was at this stage that the policemen melted away and PW 4 had to travel back to Lagos to report the incident.

Available:  Deacon J.K. Oshatoba & Anor v. Chief Johnson Olujitan & Anor (2000)

The case for the appellant was that he and his men were on anti-crime patrol when he received an information that robbers were operating along the Benin- Lagos Road. They proceeded to the scene of crime where he ordered his men to stop and search all private cars. Presently, a Volvo car drove in from the Lagos direction. The deceased was its driver. He drove past the checkpoint but eventually stopped. A policeman then went to him and demanded for the particulars of his vehicle. The appellant stated that there was argument between the deceased and the policeman as a result of which he personally went to the deceased and asked for his ignition key and particulars. The deceased refused and the appellant insisted on taking the ignition key from him. The deceased at this stage gripped the appellant’s pistol. The appellant claimed that he struggled to recover possession of his pistol from the deceased. It was in this exercise that the pistol exploded and the bullet hit the deceased accidentally. He claimed that the incident was one of accidental discharge.

At the conclusion of hearing, the learned trial Judge, Edokpayi, J after an exhaustive review of the evidence on the 1st day of March, 1996 found the appellant guilty as charged and accordingly sentenced him to death. Dissatisfied with this decision of the trial court, the appellant lodged an appeal against his conviction and sentence to the Court of Appeal, Benin City Division. The Court of Appeal in a unanimous judgment dismissed the appeal on the 11th day of July, 1997 and affirmed the decision of the learned trial Judge. It is against this judgment of the court below that the appellant has further appealed to this court.

➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]

I. Whether the holding by the learned Justices of the Appeal Court that ‘it is my candid view that the learned trial Judge’s findings in this case can just not be faulted, and I do not intend to interfere with them’ was perverse having regard to the evidence before the trial court?

RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE SHOOTING OF THE DECEASED WAS NOT ACCIDENTAL
In this regard the learned trial Judge after a most careful evaluation of the evidence found as follows:- “From the evidence of the prosecution and the defence, it is established beyond reasonable doubt that Remigous Mekoba died on the 18th of August. 1994 along the Benin/Lagos Express Road in Benin City and that he died of gunshot wounds. It is established that he did not die a natural death but that he died a violent death. It is also established that the missile which killed him came from the gun (pistol) which the accused person took to the road on official assignment that day. The only difference between the case of the prosecution and that of the defence is that while the defence contends that the gun exploded and hit the deceased accidentally as the accused person and the deceased were struggling for the possession of the pistol, the prosecution’s case is that the accused person who had opened the front door of the deceased’s car and dragged the deceased out of the car and slapped him, moved backwards from the deceased at whom he aimed with his pistol and fired and thereby intentionally killed him.” A little later in his judgment, the learned trial Judge went on:- “From the evidence of the 2nd and 4th prosecution  witnesses which I believe. I hold that the gun  (pistol) which the accused person held on 18th April 1994 did not accidentally explode or discharge. I do not believe the accused person  when he testified that the pistol exploded while  the deceased and himself were struggling for the possession of the pistol. I believe the 2nd (sic) prosecution witness when he testified that the accused person moved backwards for a distance of about seven feet before he took his aim with the pistol and fired at the deceased…….. There is no evidence that the  deceased or any one in his car on that day was armed. Even if l was to believe that the deceased had any scuffle with the accused, which fact and piece of evidence I do not  believe,  the accused will not be entitled, either under the defence of self defence or provocation, to use a deadly weapon like the pistol in gunning down the deceased  who was not shown to be armed or shown to be on the run as a criminal. Even if the deceased has attacked the accused person with bear hands or has a scuffle with the accused person, which evidence of attack or scuffle I do not  believe, the mode of resentment as instanced by the weapon used, did not bear reasonable proportion to the alleged provocation…… . From the evidence of the 4th prosecution witness which I believe, and which evidence as to distance and cause of death is corroborated by the evidence of the 2nd prosecution witness, the shooting of the deceased was premeditated and therefore not sudden or accidental. The accused person has not testified that he was in any danger of his life or that he had to shoot the deceased down to save his (accused’s) life. The defence of self defence therefore does nor avail him. I have said earlier that I do not believe that the deceased gripped the pistol of the accused person or that the pistol accidentally fired or accidentally exploded during any struggle for the possession or repossession of the pistol. I do not believe that the deceased attacked the accused person.”

The above findings were endorsed by the Court of Appeal Justice.

B. THAT THE CONVICTION OF THE APPELLANT IS A CONCURRENT FINDING
“It is clear from the above findings of the Court of Appeal that this is a clear case of concurrent findings of fact by both the trial court and the Court of Appeal. In this regard, the law is well settled that where there are concurrent findings of fact by both the trial court and the Court of Appeal, again whether in a civil or criminal proceedings, then unless those findings are:- (1) found to be perverse: or (2) not supported by the evidence: or (3) reached as a result of a wrong approach to a wrong application of principle of substantive law or procedure: this court, even if disposed to come to a different conclusion upon the printed evidence, cannot do so. See: Enang  v. Adu (1981) 11-12 SC 25 at 42; Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718; Igwego v. Ezeugo (1992) 6 NWLR (Pt. 249) 561 etc. Accordingly, this court will not disturb concurrent findings of fact of both the High Court and the Court of Appeal unless a substantial error apparent on the face of the record of proceedings is shown or where an appellant establishes a special circumstance to warrant the reversal of such concurrent findings. See: too Sobakin v. The State (1981) 5 SC  75; Ige v. Olunloyo (1984) 1 SCNLR 158; Eholor v. Osayande (1992) 6 NWLR (Pt.249) 524 at 548.”
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II. Whether the learned trial Judge and the learned Justices of the Court of Appeal were right in holding that the evidence of PW 2 and PW 4 corroborated each other? & Whether the learned Justices of the Court of Appeal were right by holding that a case of accidental discharge was not made out by the appellant?

RULING:
A. ON IF THE APPELLANT INTENTIONALLY SHOT THE DECEASED [IN RESPONDENT’S FAVOUR.]
“On the concurrent findings of both courts below which, as I have already observed, are fully supported by the evidence on record and have not been faulted in any manner, it is crystal clear that the medical evidence of PW 2 amply corroborated the evidence of P.W.4 on, at least, two vital areas. These are in respect of the cause of death and the approximate range from which the gun was fired. In the first place, both witnesses were ad idem on the cause of the deceased’s death. This, on their evidence, was as a result of bullet injuries fired from a gun which hit and devastated the deceased’s left chest and from which injuries he died moments later. In the second place it was the evidence of PW 4 that the appellant, after slapping the deceased, paced backwards to a distance of” about 7 feet”, pointed this pistol at the deceased and shot him through the left chest. I find it of great importance to re-emphasize that this vital piece of evidence of P.W.4 was specifically accepted and believed by the learned trial Judge who had the singular opportunity of watching and observing the witness as he testified before the court. The same finding of the trial court was affirmed by the Court of Appeal thus raising its status to that of a concurrent finding of fact by both the trial court and the Court of Appeal. On this finding alone, which has not been faulted in any way, it cannot be contended seriously that a case of deliberate and intentional shooting of the deceased by the appellant was not established by the prosecution or that the appellant made out a case of accidental discharge on the accepted evidence before the court.”

“There is one more vital point on this issue of whether or not the prosecution established a case of deliberate and intentional shooting against the appellant. This revolves on yet another material evidence of PW 4 to the effect that as soon as the appellant shot the deceased, he, PW 4, rushed out from their car and held his wounded brother. Both the deceased and P.W.4 then fell down but P.W.4 got up and the appellant next faced him, pointed the same pistol at him but one of the  policemen around had to shout “no, no, no” before the appellant lowered his aim and kept the pistol. This vital piece of evidence was accepted and believed by both courts below. I agree entirely that this immediate subsequent behaviour of the appellant in facing PW 4 with the same pistol immediately after he had shot down the deceased pointed to the fact that the shooting of the deceased was intentional and not accidental.”

“It must however be stressed that the evidence of PW4 on the issue of the range from which the fatal shot was fired clearly required no corroboration in law. The result is that the evidence of PW 4, an eye witness to the incident, if believed, as indeed it was, firmly resolved the issue. In such circumstance, the opinion evidence of PW 2 on the same point, even if it were to be inadmissible, and I do not so hold, became unnecessary and a surplusage. It seems to me plain on the evidence of PW 4 which both courts below accepted as true that it was a case of premeditated and intentional shooting of the deceased by the appellant that was established by the prosecution and that a case of accidental discharge was not made out by the appellant.”

Available:  F. O. Ajibowo and Co. Ltd v. Western textiles Mills Ltd (1976)

“Learned counsel for the appellant finally submitted that when the deceased held his jaw in pain with his head on the bonnet, he must have been “backing his assailant”. He therefore contended that it was not possible for him to have been shot through the upper left chest as testified to by PW 2 and PW 4. I need only observe that learned counsel’s conclusion was based entirely on speculation and conjecture as there was no evidence as to whether the deceased was facing or backing the appellant or as to the position of the appellant, namely whether he was standing infront or by the side of or behind the deceased the moment the deceased was shot. There was also no evidence as to the angle the fatal shot was fired from, having regard to the position of the appellant qua the deceased. I therefore find it difficult in the absence of evidence to conjecture whether the deceased backed, faced, half backed or half-faced the appellant at the time the latter mowed him down with his pistol. It suffices to state that on the evidence, which both courts below accepted as true, the appellant shot the deceased through the upper left chest and the deceased died as a result of the injuries he sustained in this attack.”

B. ON THE EXPERTISE OF THE MEDICAL DOCTOR [IN RESPONDENT’S FAVOUR.]
“But learned counsel for the appellant did submit that PW 2, not being an eye witness to the shooting incident, was not competent to give evidence relating to the distance or range from where the gun was fired. With the greatest respect to the learned counsel, it ought to be stressed that at no time during the cross-examination of PW 2 was it suggested to him that he was not competent to testify on the issue. If he was so questioned, the issue of his knowledge on the subject would have come into focus. Without doubt, PW 2 testified before the court as an expert witness. He is a medical doctor attached to the Department of Pathology of the University of Benin Teaching Hospital and it is a matter of common knowledge that to qualify as a medical doctor, one must undergo a study in forensic medicine, the extent and scope of which the witness would have clarified were his competence challenged while he testified in the witness box. A close study of the evidence of PW2 reveals that the expert opinion he gave on the issue of distance or range from where the shot was fired was based entirely on deductions from the nature and extent of the injuries he found on the deceased in the course of his post-mortem examination. In my view, a medical doctor does not need to be an eye witness or a ballistics expert to be able to give an expert opinion on the issue of the range or distance from which a particular missile, whether gunshot or otherwise, was launched, having regard lathe resultant injuries to the victim, particularly where, as in the present case, he gave factual basis for the opinion he arrived at. Indeed it does not seem to me that a ballistics expert would be of any use on the particular facts of the present case. This is because a ballistics expert is apparently not trained in human anatomy, pathology, forensic medicine or to relate the nature. extent or quantum of injuries to the human body to a particular weapon or weapons likely to be responsible for such injuries. He may also not be in a position to give an expert evidence as to the amount of force used in the commission of an assault and whether or not the resultant injuries could be self-inflicted or otherwise. These, in my opinion, are matters which concern medical doctors and not ballistics experts. I think both courts below were right in accepting the corroborative evidence of PW 2 to the effect that the gun which produced the injuries he saw on the body of the deceased would have been shot from about 7 to 10 feet from the person of the deceased and that the injuries could not have been self inflicted.”

C. ON SECTION 149(d) EVIDENCE ACT [IN RESPONDENT’S FAVOUR.]
“In the present case, the issues of fact that the policemen in issue would have given evidence of, had infact been testified upon by PW 4 and no question of withholding evidence on the part of the prosecution therefore arose. The prosecution called PW 4 as its witness and the witness testified before the court and narrated all that happened at the scene of crime. As I have already indicated. Section 149(d) of the Evidence Act deals with the failure to call evidence and not the failure to call a particular witness. With respect to learned counsel. I find it difficult to accept that Section 149(d) of the Evidence Act has any application to the facts of the present case.”

D. ON THE RELIABILITY OF PW4 WITNESSING THE EVENT [IN RESPONDENT’S FAVOUR.]
“Again, with profound respect to learned counsel, there is clearly nothing, either in the evidence of PW 4 before the court or in his statement, Exhibit B which is inconsistent with each other. According to the witness, he was with the deceased in the car when they were stopped. This was after they overshot the checkpoint by a few yards and had to reverse the car back. The appellant then came to them and asked the deceased, with whom he was in the car, why he did not stop in time. There was no evidence that PW 4 was deaf. He was therefore bound to hear the question particularly when he was inside the car at the same time with the deceased at the material time. The appellant next opened the driver’s door, pulled the deceased out of the car and slapped him. At this stage, only PW 4 remained inside the car as the deceased had been pulled out. There was no evidence as to whether the opened door subsequently closed or whether the glasses were or were not wounded up. PW 4, however, stated that after the deceased had been pulled out of the car and slapped, the appellant asked the deceased some questions which PW 4 did not hear. He gave a reason for not hearing this second question. This, PW 4 said, was because he was then inside the car. At no other time did he claim that he heard what this second question was. The evidence of PW 4 was so clear and straight forward that no conflict conceivably arose from his account of the incident whether from Exhibit B or from his viva voce evidence in court. This evidence of PW 4 was believed by the trial court and affirmed by the court below and I have no reason to interfere  with these findings. I find no basis in counsel’s submission that PW 4 was unreliable and hereby dismiss the same as entirely misconceived and totally unjustifiable.”

E. ON PW4 BEING THE BROTHER OF THE DECEASED & A TAINTED WITNESS
“Again. I cannot, with respect, subscribe to this aspect of counsel’s submissions. PW 4 without doubt, was the brother of the deceased but that fact did not by itself connote that he was not competent to testify for the prosecution or that he was a tainted witness. A tainted witness has been classified as one who is either an accomplice or by the evidence he gives, whether as a witness for the prosecution or defence, may and could be regarded as having some purpose of his own to serve. See: Ishola v. The  State (1978) NSCC 499 at 509. PW 4 is neither an accomplice to the offence charged nor was it shown that he had any purpose of his own to serve or that he was in any way biased in his testimony before the court and I am unable to accept that the mere fact that he was the brother of the deceased without more rendered his evidence unacceptable without corroboration or weakened the same or rendered him incompetent as a witness in a case where he was clearly an eye witness. So in Christopher Arehia and Anor v. The State (1982) NSCC 91, the learned defence counsel contended that the prosecution witnesses who gave evidence as eye witnesses were blood relations of the deceased’s family and that the learned Justices of the Court of Appeal should have warned themselves against the danger of relying on the evidence of the relations of the deceased before convicting the appellant. He argued that this they failed to do. He therefore urged that the appellant’s conviction and sentence be set aside. This court in answer to these submissions observed as follows:- “It is true that the prosecution witnesses in question were related in one way or the other to the deceased and the learned Justices of the Federal Court of Appeal did not advert to that fact. However the fact that the witnesses were related to the deceased does not mean that they were not competent to testify for the prosecution. Learned counsel for the appellant has not shown them to be biased………………. ” I think the credible evidence of PW 4 was rightly accepted by both courts below in the present case and I can find no reason to disturb the same.”
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✓ DECISION:
“In the final result, this appeal fails and it is accordingly dismissed. The conviction and death sentence passed on the appellant by the trial court and affirmed by the Court of Appeal are hereby further affirmed.”

➥ MISCELLANEOUS POINTS
***DISSENTING
**Belgore, JSC:
A. ON THE DECEASED STATEMENT
“Thus, in his first statement he alleged that when the policemen asked them to stop, they stopped. In his statement on oath testifying in court, he alleged that they did not stop because they did not see the policemen. He put it this way: “As we got to Benin City policemen stopped us. We did not see the policemen in time as we were on speed. We passed the policemen and my brother Remigious Mekoba stopped the car and he reversed the car back. One of the policemen came to us and asked him why we did not stop and my brother replied that he has now stopped.”‘ In his statement to the police copied above on 30th August, 1994, this witness clearly stated he never heard the altercation between his brother and the policemen. Whereas in that statement Exhibit B he specifically stated that the deceased stopped as they were stopped, in his evidence in Court he stated that “they” (meaning himself and the deceased) never saw the policemen and thus never stopped when ordered to stop and that he heard all the altercations between the deceased and the appellant and other policemen. Whereas in his evidence in court he stated clearly and graphically that the appellant slapped the deceased whereat the deceased slumped on the car bonnet and the appellant then stepped about seven feet back, aimed and shot at the deceased.”

B. ON THE EVIDENCE OF THE MEDICAL DOCTOR
“His evidence. according to the law, is relevant as to his opinion on medicine and pathology and nothing more. He never claimed to be a ballistician and if a ballistician, he would give evidence as to the velocity and impact of a projectile, he must see the weapon and assess its capability. This witness Jonathan Aligbe gave his qualification only as follows: “I…………………am a medical practitioner. I am attached to the Department of Pathology in the University of Benin Teaching Hospital” This of course does not mean he is a pathologist neither was his experience in evidence. He saw the corpse on 24th August, 1994 when it was identified to him by PW 3. Is he a pathologist of morbid anatomy His being attached to the Pathology Department is not enough. Is he a registrar or a house officer When did he qualify as a medical practitioner registered to practise in Nigeria All these are essential primary duties of the prosecution to elicit for the witness to be regarded as an expert whose opinion will be relevant though not necessarily conclusive under the Evidence Act Section 57. It is always necessary, so as to establish a witness as an expert, to have evidence of his qualification and experience and it will be wrong to blandly call a person an expert when his qualifications are not put in evidence Azu v. The State (1993) 6 NWLR (Pt.299) 303, 305, 306. There is no doubt the death of the deceased was due to gun shot wound from the pistol held by the appellant. In that case, without evidence of PW 2 the cause of death is known. However, in this case the learned trial Judge made use of the evidence of PW 2 on a matter outside his expertise, that is to say, his evidence of capability of a gun he never saw and field of ballistics totally not in his claimed discipline as a medical officer. He claimed the gun must have been fired between seven and ten feet from the deceased. How did he arrive at this opinion He claimed he never saw evidence of a struggle on the corpse of the deceased. Then how will this evidence of a struggle manifest on the corpse He never explained. He was taken up on this evidence in cross-examination. The learned Judge used this part of the evidence as corroboration of the evidence of PW 4, the younger brother of the deceased. PW 4 was not the only eye witness at the scene, there were at least four others including Sgt. Wilfred Asemota who was not called. I shall advert to these witnesses not called later.”

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“The evidence of PW 2. Medical Officer under which the trial Judge sought refuge for corroboration of the PW 4’s evidence on the shooting is totally irrelevant as this medical practitioner was neither at the scene nor was he an expert in ballistics and his evidence could not be better than those police officers at the scene of the incident who no doubt must have seen what took place. The Court of Appeal therefore fell into the same error as the trial Court in making big issue out of the opinion of PW 2, albeit unprofessional one at that. Without the evidence of PW 2, the cause of death is fully established as penetration of a projectile like a bullet into the deceased chest whereby the bullet gained exit out of this body after rupturing his heart and left lung with attendant haemorrhage thereby causing shock. The evidence as to absence of struggle is a conjecture and the evidence of distance is a guesswork. How could he, being not a ballistician, not seeing the weapon to know its calibre and capability. and not being at the scene as a witness of the unfortunate incident, give evidence of distance of firing of a projectile from the gun from an estimated distance His evidence on this all important aspect goes to irrelevancy and cannot under any circumstance be used as corroboration or PW 4 ‘s evidence. The prosecution, for their own reason, not shown to court, decided not to call the other eye witnesses of the event and must be presumed caught under the provisions of Section 149(d) of Evidence Act.”

C. ON THE EVIDENCE OF THE PW4 (DECEASED) BROTHER
“In this case, the Exhibit B made by PW 4 at the first opportunity only mentioned the opening of the Volvo car door, the deceased dragged out and shot immediately point blank on being asked a question and before he could answer. PW 4 said he never heard the question the deceased was asked by “one policeman and before the other policeman shot him” because he was inside the car. In court. however. he claimed he heard and saw all that happened. Upon all these contradictions it would have helped the prosecution’s case to call at least one other eye witness e.g. Sgt. Asemota. It is remarkable that no reason was advanced for not calling any of these eye witnesses to testify. What could be the reasons for the contradictions in PW 4’s evidence None. The contradictions are material and could only be cured by an eye witness and not by the opinion of a non-ballistician like PW 2. The prosecution has a duty to call all material witnesses for its case, whether those witnesses support or are against its stand, because as an officer of the court, a duty is owed to lead the court to arrive at a just conclusion; this is more so in a criminal case where the Onus probandi for the prosecution is to prove beyond reasonable doubt. Opayemi v. The State (1985) 2 NWLR (Pt. 5) 101,102,103. The PW 4, in giving new twist to his previous statement to the police when he testified on oath had perhaps reason to make sure the death of his brother is paid for by somebody; this possibility under the circumstance of this case, is always there and should not be treated lightly. It is for this other evidence on how the bullet was fired was necessary especially when there were other eye witnesses at the scene. The prosecution decided not to call any of them and no reason was ever advanced for this lapse. The only reason presumed under the law is that if those witnesses were called their evidence would not support the case for the prosecution. The evidence of any other witness at the scene seeing what transpired is better than non-expert evidence of Dr. Aligbe, PW 4. [See S.149(d) Evidence Act]. The PW 4, on his performance was inconsistent and he was the only eye witness of the discharge of the bullet that killed his brother that the prosecution chose to call; the others ought to be called and it is not a luxury but a necessity to call them. Mande Ali v. The State. See SC 114/1972 and (1972) 10 SC 87; (1972) NSCC (Vol. 7) 620, 621.”

“A witness whose evidence in Court indicated he was also threatened with the gun, never mentioned this, in his statement to the police. The deceased saying: I am dying, I am dying” is replaced with “he called my name twice”. It is the duty of the prosecution to call all the witnesses necessary to prove its case beyond reasonable doubt Sugh v. State (1988) 2NWLR (Pt.77) 475: 0gbodu v. State (1979) 6-9 SC; Chukwu v. State (1992) 1 NWLR (Pt. 217) 255, 258.”

D. ON THE NEED FOR CORROBORATION BEFORE SENTENCING THE DECEASED
“In the instant case, the evidence of PW 4 is not cogent enough, it contains unexplained contradictions and it is the only eye-witness account tendered before the trial court whereas other eye witnesses were there. The prosecution chose not to call any other eye witness; the learned trial Judge sought for corroboration and the only evidence he found in that regard is the opinion evidence of a medical practitioner on ballistics who was never at the scene. Criminal responsibility is a serious thing and it must not be treated with levity when it comes to burden of proof. Once the judge at the trial thought corroboration of the evidence of PW 4 of how the bullet was fired was necessary, it stands to reason that only an eye-witness account was required. Prosecution decided not to bring any other eye witness leaving the Court to rely only on the evidence of PW 4 which I earlier explained; whereas there was a glut of eye-witnesses whose evidence were necessary. The very fact that the trial Judge sought refuge in the evidence of PW 2, the medical practitioner, to resolve PW 4’s evidence on how the pistol was fired, manifests doubt in his mind. As PW 2’s evidence on this aspect is no more than an opinion of non-expert, his evidence goes to nowhere in law. The trial Judge never adverted to the danger of relying on uncorroborated evidence of PW 4 and the evidence he regarded as corroboration is not relevant in law as PW 2 is not a ballistician. This case is very different from that of Arehia & Anor v. State (1982) 4 SC 78. 92 and 93 where a host of eye-witnesses were relations of the victim of the crime wherefore their evidence was overwhelming, in this case only PW 4 gave evidence on this crucial aspect of the firing of the pistol and the other independent witnesses available were not called. PW 4. on his conflicting evidence alone and as a brother of the deceased, must probably have his own interest to serve in seeing somebody is criminally held responsible for his brother’s death.”
.
.
**Wali JSC:
A. ON PW4 (DECEASED BROTHER) BEING A TAINTED WITNESS
“The conduct by the learned trial Judge in looking for corroboration of the evidence of PW 4 which he said he found in the evidence of PW 2 has left me in no doubt to conclude that he regarded PW 4 as a tainted witness and on whose evidence alone he found he could not or ought not rely to convict the appellant. So the issue that PW 4 is a tainted witness was settled in the affirmative by the learned trial Judge himself and requires no further comment by me.”

“For a witness to be perfectly credible. he must not be in the slightest degree partial or biased in his evidence to one party or the other. Although a brother is a competent witness for his other brother, the interest arising from the relationship detracts proportionately from the credit of such a witness. And when Exhibit B is read along with viva voce evidence of PW 4, partiality or bias towards his deceased’s brother is easily discernible. Such evidence needs to be corroborated by rule of practice. See: Adekunle v. The State (1989) 5 NWLR (Pt. 123) 505;  (1989) All NLR 754 and Doka & Ors. v.  The State (1967) All NLR 334.”

B. ON THE EVIDENCE OF THE MEDICAL DOCTOR
“In matters of science or trade, an expert, or person intimately acquainted with it, may be called upon to give his opinion on the probable result or consequence from certain facts already proved. PW 2 is an expert witness called to give evidence in his own field as a medical doctor in order to ascertain the cause of death. He is not an expert to give evidence on the distance from where the gun was fired, as he docs not possess with the reference to the particular point, by reason of education or specialized experience, superior knowledge not acquired by ordinary persons; nor has he, by habits of life and business, peculiar skill in forming opinion on the subject. PW 2 was not an eye witness to the incident and all that he had said on the issue is nothing but speculation and goes to no issue.”

C. ON THE DISPROVE OF ACCIDENTAL DISCHARGE
“Where a defence of accidental discharge is raised by the defence, the prosecution has a duty to disprove it. See: Sholuade v. The Republic (1966) 1 All NLR 134. The test under section 24 of the Criminal Code is whether the prohibited act was or was not done accidentally or independently of the exercise of the will of the accused person. See: Wedgee Shire Council v. Bonney (1907) 4 CLR 977 in which similar provision with Section 24 CC was interpreted. Also in Sweet v. Parsley (1970) AC 132; (1969) 1 All ER 347; (1969) Cr. App R. 221 at 225, 226 Lord Reed made the following exposition on the law:- ‘To make a man liable to imprisonment for an offence which he does not know he is committing and is unable to prevent is repugnant to the ordinary man’s conception of justice and brings the law to contempt.” It was held by this court in Ironmantu v. The State (1964) 1 All NLR 311 that:” “Where a person discharges a firearm unintentionally and without attendant criminal malice or negligence he will be exempt from criminal responsibility both for, the firing and for its consequences.””

➥ REFERENCED (STATUTE)
⦿ IF THE WITNESS IS NOT AN ACCOMPLICE, COURT CAN CONVICT ON HIS SOLE TESTIMONY
More recently in Oteki v. Attorney-General of Bendel State (1986) 2 NWLR (Pt. 24) 648 at 664 this court laid it down as follows:- “I think the learned trial Judge applied the correct principles in determining whether or not to rely on the evidence of P.W.1 for the conviction of the appellant. It is now established that a court can convict upon the evidence of one witness without more, if the witness is not an accomplice in the commission of the offence, and his evidence is sufficiently probative of the offence with which the accused has been charged.” See too Sunday Emiator v. The State (1975) 9-11 SC 107 at 112; Anthony Igbo v. The State (1975)9-11 SC 129 at 134: Joshua Alonge v. inspector-General of Police (1959) SCNLR 516;(1959)4 FSC 203.

⦿ NO OBLIGATION TO CALL A HOST OF WITNESSES BY THE PROSECUTION
Okonofua & Anor v. The State (1981) 6-7 SC 1 at 18 where this court per Bello, J.S.C., as he then was, dealing with the same subject put the matter thus:- “The correct state of the law relating to the duty of the prosecution to call witnesses, whether their names appear on the back of the information or not, has been recently stated by this court in these terms: ‘The law imposes no obligation on the prosecution to call a host of witnesses. All the prosecution need do is to call enough material witnesses in order to prove its case; and in so doing, it has a discretion in the matter.’ ” See also Samuel Adaje v. The State (1979) 6-9 SC 18 at 28.

➥ REFERENCED (CASE)

➥ REFERENCED (OTHERS)

End

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