ALHAJI RAUPH O. GAJI (APPELLANT)
v.
THE STATE (RESPONDENT)
(1975) All N.L.R. 268
Division: Supreme Court
Date of Judgment: 23rd May, 1975
Case Number:
Before: Coker, Ibekwe and Irikefe, JJ.S.C.
APPEAL from the High Court, Kaduna.
The appellant, a legal practitioner was tried in the Kaduna High Court and convicted of culpable homicide in causing the death of one Cordelia Ejiofor. At the trial, he did not testify himself, nor call witnesses as to his defence. Learned Counsel for the appellant established that some or all the prosecution witnesses made statements to the police before the application to the judge to institute criminal proceedings without the holding of a preliminary investigation.
The defence applied for the production of statements made to the police by prosecution witnesses but the applications were opposed by the prosecution contending that no foundation was laid for the compulsory production of those statements, furthermore their production is forbidden by the provisions of S. 122 Criminal Procedure Code.
The learned trial Judge refused the applications because S. 122 Criminal Procedure Code prohibits the production, but he did not deal with the objection as to the absence of foundation. On an appeal to the Supreme Court,
HELD:
(1) that the trial Court has a discretionary power to order the production of any documents including such statement, if such production is necessary in the interest of justice, but it has not so ordered here and it is not a case in which the court should have so ordered.
(2) that where compulsory production is required S. 122 C.P.C. must be complied with, and the section contains conditions and circumstances under which such statements must be produced.
(3) that no foundation was laid for compelling the production of the statements as required under the Evidence Law, and trial Judge should have refused the applications on that ground.
(4) that the test of a fair trial must rest on the fair view of a dispassionate visitor to the court who had watched the entire proceedings, and it is impossible in this case to say that such a visitor would or could have taken the view that appellant's trial was anything but fair.
Appeal dismissed:
Cases referred to:
Alhaji Okabichi & ors v. The State (1975) 3 S.C. 135 at 150
Alhaji Ladan v. Police. (1970) N.N.L.R. 49
Saka Layonu & ors v. The State (1967) N.M.L.R. 411
The State v. Jimoh Sanni N.C.H./13c/72
Ashard Case (1963) N.N.L.R. 80
Regina v. Smith reported in London
Times Wednesday April 30, 1975
Statutes referred to:
Penal Code SS 220 (b), 221, 222, 225
Criminal Procedure Code, Cap 30, 1963 Laws of Northern Nigeria, SS. 122, 124, 144, 185 (b), 188 and 217
Judicial Offices and Appeals by Prosecutors Act 1963
Evidence Law Cap. 40 Laws of Northern Nigeria 1963, SS: 198, 209
Supreme Court Act 1960, S. 26 (1)
APPEAL from the High Court, Kaduna.
SUIT NO. S.C. 330/73
Chief G.K.J. Amachree (with him Mr C. N. Okoli) for the Appellant.
Alhaji M. Nassir Attorney-General North-Central State for the Respondent.
COKER J.S.C. (Delivering the Judgment of the court)-The present appellant, Alhaji Rauph Omobolaji Gaji, is a legal practitioner of many years standing and the appeal before us is sequel to the unfortunate circumstances which led to his trial and conviction by the High Court, Kaduna, on a charge of culpable homicide. Before the High court he had been charged as follows:-
"That you RAUPH OMOBOLAJI GAJI on or about the 3rd day of December, 1972, at Kaduna, in the North-Central Judicial Division did commit culpable homicide punishable with death in that you caused the death of Cordelia Ego Ejiofor by beating and kicking her with your fists and legs with the knowledge that her death would be the probable consequence of your act and thereby committed an offence punishable under section 221 of the Penal Code and triable by the High Court."
On arraignment before the learned trial Judge, he was asked to plead and the court so ordered. He refused to plead however and it is regrettable that learned Counsel appearing for him was responsible for advising him not to plead even though the court had so ordered him to plead. This episode is however of trifling importance and clearly has no significance on the case and trial of the appellant, for section 188 of the Criminal Procedure Code, cap. 30 (Laws of Northern Nigeria) provides as follows:-
"188. If the accused pleads not guilty or makes no plea or refuses to plead or if the judge enters a plea of not guilty on behalf of the accused, the court shall proceed to try the case."
The section obviously takes the position in hand for in the events that happened, the court proceeded to try the case of the appellant. Learned Senior State Counsel, who appeared for the prosecution, then began to open his case in the usual way when learned Counsel for the appellant observed:-
"AMACHREE: We will challenge the statements of Gladys Wey, Friday Igwegbu, Solomon Iyedoh, Isaac Oshonoike, any statement made to police by the accused, so state Counsel should not refer to their evidence in his opening address."
We shall refer later on in this judgment to this objection of learned Counsel for the appellant for the case of the appellant himself evinced only precious little of its facts and the defence in substance is massively built around the aforesaid objection of learned Counsel.
Evidence was called by the prosecution, which the learned trial Judge accepted, that on the 3rd day of December, 1972, at his residence in Kaduna, the appellant did beat up one Miss Cordelia Ego Ejiofor so severely that she eventually died thereof; that thereafter the appellant threw her corpse into the side of the road some ten miles away from Kaduna on the Kachia Road where pieces of the remains were subsequently discovered and retrieved by the police and that indeed it was the appellant himself who had taken the police to the spot where the remains of Miss Ejiofor were unearthed. The evidence was all one way as the appellant gave no evidence at all nor called any witnesses of his own. Seventeen witnesses were called by the prosecution and at the end of the case for the prosecution, the learned trial Judge made the following notes:-
"Nasir A. G.: That is the case for the prosecution.
Court: Has the defence any witness other than the accused person or a witness to character only?
Amachree: No, I am not making a no-case submission, but we will rest our case on the prosecution evidence.
Court: Explains section 236 (1) C.P.C. explained to accused.
Accused: I do not wish to give evidence."
Learned Counsel on both sides then addressed the court at length and the learned trial Judge reserved judgment to a named date.
The learned trial Judge eventually in the course of a reserved judgment extensively reviewed the facts of the case including the evidence of the star witness, one Mrs Gladys Ibidun Wey, a client of the appellant who had the misfortune of being in his residence at the time when all these events happened. She had testified to the traumatic beating given Cordelia by the appellant and also the decision of the appellant to take her out for medical attention on account of her physical condition after the beating. She had testified, inter alia, as follows:-
"I came out from the room again. This girl was still like that in that condition. Then Gaji said 'Ah ! Mrs Wey, I think I had better take her to the hospital'. The girl was so bad she could not get up. I helped Gaji get her into the car which was just outside the gate of the sitting room. I also entered the car and held the girl on the back seat. As we were going, Gaji said he was going to Kakuri Hospital. As we were going he stopped the car near a place with many lights and got out. When he came back I said, 'Gaji, this girl has died'. He said, 'Ha-a' and jumped inside the car and said, 'Mrs Wey, I will take you back home. I will take you back home'. He turned the car, but we did not reach the house. He dropped me at Queen's Club near Abuja Street. Then he turned the car full speed to where we had been coming. I found his house and sat in my room and slept."
As it were, the body of Cordelia was never found intact, although some human remains dug out the of the bush along the Kachia Road were suspected to be her own. Concerning this point, the learned trial Judge had observed in the course of his judgment thus:-
"This is a case in which there is no corpus delicti. Cordelia has disappeared. Some human remains have been found which might or might not have been hers. There can in the circumstances be no post mortem report. The circumstances that she was brutally beaten up and that she is now nowhere to be found suggest strongly that she is dead. Mrs Wey said that she died in her arms. Mrs Wey has had experience in hospital of people dying. She is more able than most to know when a person is dead. It is significant that accused's actions which I shall shortly related showed that he agreed with Mrs Wey. There is no doubt in my mind that Mrs Wey was right and that Cordelia was dead. Thus, I have no doubt that she died from the beating which the accused gave her. There is no evidence that Cordelia was ill or had any physical abnormality which would have caused her death apart from the beating.
It would be both perverse and illogical not to hold that she died from the beating."
The learned trial Judge then dealt with the evidence concerning the disposal of the body of Cordelia and the eventual exhumation of human remains. He was at pains to consider the genesis of the report about the spot where the corpse was jettisoned and on this he remarked:-
"There has been evidence that it was the accused who took the police to that spot. This evidence is vague and unconfirmed and not sufficient weight. If it were true it would strengthen the case of the prosecution in a different way and would prove at least the truth of the content of Mrs Wey's report about the disposal of the body. If it is true then the police must have acted entirely on the information given them by Mrs Wey and this shows that she did in fact give them this information. Since she did go I believe it to be correct information. I cannot think that Mrs Wey made it up. Whether that is in fact what the accused did with the body, I do not know for certain. It is probable. He did dispose of it, but it may have been elsewhere. There is other evidence of the finding of the human remains by P.W. 9 and P.W.10."
The learned trial Judge considered the statements of the appellant which had been admitted in evidence, i.e. Exhibits 2, 7 and 8, and pointed out that they were parsimonious of any facts which would help the case one way or the other but, without equivocation, he found and decided that it was the act of the appellant that caused the death of the girl Cordelia. He observed thus on this issue:-
"I find it proved that the accused brutally and mercilessly and in a fit of what must have been a complete loss of temper, beat Cordelia Ejiofor and that she died from that beating. It remains for me to consider whether the nature of the beating was such that her death was probable rather than merely likely and whether given the background and intelligence of the accused he must be taken to have known that her death would be the probable consequence of his act. I have not yet had recourse to any case law. I do not think any was necessary. It is trite law that on a charge such as this death must be proved and also it must be proved that the act of the accused caused the death. It is both good law and common sense that while expert medical evidence is the best evidence as to the fact and the cause of death, it is not essential."
But the learned trial Judge was not oblivious of the heavy onus on the prosecution of proving the charge laid as it was under the provisions of section 221 of the Penal Code. That was still there to be considered and following the charge against the appellant, the learned trial Judge had to decide whether what he found and described as the "violence and mercilessness of the assault and its continuance for a long time" was intended to kill Cordelia or merely to beat her into a state of unconsciousness without thinking or recklessly uncaring that death would probably result therefrom. If the intention was always to kill her the offence would without doubt be culpable homicide punishable with death under section 221 of the Penal Code. Otherwise, it is not and the provisions of section 217 of the Criminal Procedure Code empower the learned trial Judge to convict of the offence proved even if not charged provided the facts of the case found justified a charge of that offence. See the observations of this Court in Alhaji Okabichi & ors. v. The State (1975) 3 S.C. 135 at page 150 et seq. In concluding his judgment in the present case, the learned trial Judge directed himself thus:-
"In short, I have to decide that I agree with Chief Amachree that I cannot be certain with the degree of certainty demanded by a criminal charge of such seriousness either that death was the probable result of this beating or that the accused had reason to know it to be probable. On the other hand, that it was likely there can be no doubt at all. It is not proved or charged that accused intended death. None of the subsections of section 222 Penal Code apply, but the offence proved is greater than that in section 225 Penal Code because death was a likely consequence of accused's acts and in all the circumstances I cannot doubt that a man of accused's intellect and background must have known it. I find the accused not guilty of the offence charged but guilty of the offence of culpable homicide under section 220 (b) Penal Code punishable under section 224 Penal Code."
Thus, the learned trial Judge convicted the appellant of an offence under section 220 (b) of the Penal Code and made it clear that he had already taken into consideration the provisions of section 222 of the Penal code and excluded the involvement of section 225 of the same Code and sentenced the appellant to 12 years imprisonment.
This appeal is from that conviction. We point out that the learned Attorney-General had himself filed a Notice of Appeal intending to contend that on the findings of fact of the learned trial Judge in this case and the law applicable, a conviction under section 221 of the Penal Code was inescapable and that that should be substituted for the verdict of the court. The appeal of the learned Attorney-General was however struck out as it was filed some 28 or 29 days after the conviction and in disregard of the provisions of section 4 of the Judicial, etc., Offices and Appeals by prosecutors Act 1963, No. 10 of 1963, which prescribes as follows:-
"4 (1) Where an appeal to the Supreme Court from a decision of the High Court of a territory sitting at first instance is brought in any criminal proceedings by any person or authority (other than the accused person) in pursuance of the provisions of section one hundred and ten of the Constitution of the Federation and of any relevant law of that territory, the Supreme Court shall, as it considers just, either-
(a) dismiss the appeal; or
(b) remit the case to the High Court with a direction to decide the case in accordance with the ruling of the Supreme Court on the questions involved in the grounds of the appeal; or
(c) quash the decision and either-
(i) order a new trial of the case by the High Court; or
(ii) itself determine the case;
and for the purposes of sub-paragraph (ii) above the Supreme Court may exercise, in addition to any powers exercisable by that court apart from this section, any of the powers of the High Court from which the appeal was brought.
(3) The period within which notice of appeal or of an application for leave to appeal to the Supreme Court must be given by a person or authority other than the accused person in a case which involves or could involve sentence of death or a verdict of guilty of manslaughter or culpable homicide shall be seven days from the date of the decision in question and the Supreme Court shall not have power to extend that period."
Before us, it was argued on behalf of the appellant, and as we pointed out before, that the appellant was denied a fair trial in that he was not supplied with proofs of the evidence proposed to be given by the prosecution witnesses nor were those statements made available to him at the trial for the purpose of challenging the veracity of the prosecution witnesses. The learned Attorney-General countered these arguments, and whilst conceding that the statements were not produced at the times stated, he submitted that they were refused because no foundation was laid, as it should be laid, for ordering their production.
There was no preliminary investigation pursuant to the provisions of Chapter XVII of the Criminal Procedure Code before the trial of the appellant in the High Court and the prosecution was initiated in accordance with the provisions of section 185 (b) of the Criminal Procedure Code which prescribe thus:-
"185. No person shall be tried by the High Court unless-
(b) a charge is preferred against him without the holding of a preliminary inquiry by leave of a judge of the High Court; or
It was not argued before us that in seeking the leave of the judge as stated the appellant should be put on notice and therefore there cannot be any force in any argument that that should have been the case and that at that stage the appellant should be supplied with the proofs of the evidence to be given by the witnesses. We observe that when he was apprised of the proceedings to obtain the leave of the judge to his summary prosecution, the appellant filed a motion before the High Court for-
"(1) Order that the defendant be supplied with the proofs of statements of the witnesses shown on the list marked as Exhibit attached to the application of I.A. Salami, Esq., of State Counsel, Grade 1 at the instance of the complainant and dated 7th July, 1973, which application to prefer a charge without holding a preliminary enquiry was granted by the Honourable Court on 14th July, 1973.
and;
(2) For order that the defendant be given whilst in custody all constitutional rights and privileges of an accused persons."
The motion was dismissed and, as pointed out, the appellant was thereafter charged and tried by the High Court.
The argument of learned Counsel for the appellant involves a point of law of considerable importance in an appropriate case but of little or no effect on the fortunes of the appellant in the present case. We are satisfied ourselves that numbers of times learned Counsel for the appellant asked for the production of statements made by the witness or witnesses of the prosecution to the police but the prosecution would not produce them and the learned trial Judge would not order their production. We therefore asked learned Counsel for the appellant to choose a specific instance and base his argument on that. Learned Counsel for the appellant referred us to the evidence of Mr Peter Odidi (3rd P.W.) in the course of which he asked for the statement of the witness in order to cross-examine him with it. The witness was being cross-examined by learned Counsel for the appellant and had only just admitted that he made two statements to the police. Then followed what the learned trial Judge had recorded as follows:-
"Amachree: I ask for those statements.
Salami S.S.C.: I object to producing them. Defence not entitled to any matter in the case diary: Section 122 C.P.C. No foundation.
Alhaji Ladan vs. C. of P.502 CA/70 (Court-It is in 1970 NNLR).
Amachree: How can we conduct our case without them? Why would such a clear witness make two statements to police?
Court: Under section 122 C.P.C. the accused or his agent shall not be permitted to call for and inspect any part of the case diary except in certain circumstances. The statements in writing to police by witnesses are part of the case diary: Section 121 (g) C.P.C. The circumstances in which this mandatory prohibition is lifted are two:
(a) where such statement is admitted in evidence. (This present tense must in my view be the historic present, or the section 122(2) (a) does not make sense to me) or
(b) where a police witness has used such statement to refresh his memory.
Neither of these circumstances obtain here. The confirmation by the appeal court of the magistrate's refusal to allow the accused to see the statement to police of a witness is the similar circumstances in Alhaji Ladan v. C. of P. which is in 1970 NNLR shortly to be published confirm me in this view. If 'is admitted' could be read as 'is admissible' then there is still no basis in the present case for ordering the production of these written statements. The Supreme Court case of Saka Layonu (1967) NMLR 411 expresses a different view, but that was governed by the Criminal Procedure Act. I am bound by the Criminal Procedure Code, whose provisions on this point are quite different. The application is refused."
Thus, the learned Senior State Counsel had objected to the production of these statements, firstly, on the ground that section 122 of the Criminal Procedure Code does not permit the production and, secondly, on the ground that no foundation had been laid for ordering the production of these statements. The learned trial Judge refused the application of Counsel basing his refusal on his interpretation of section 122 of the Criminal Procedure Code. He did not refer to the other arm of the objection of the learned Senior State Counsel, i.e. that no foundation was laid for ordering the production of these statements and it is unfortunate that he did not do so. We say it is unfortunate because in this particular respect it is of the utmost necessity that some foundation be laid for requiring for the statement of a witness to cross-examine that witness and unless such a foundation is laid it is impossible to obtain an order for the production of his statement, Sections 198 and 209 of the Evidence Law, cap. 40, Laws of Northern Nigeria 1963 are directly relevant and they provide as follows:-
"198. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
209. The credit of a witness may be impeached in the following ways by any party other than the party calling him or with the consent of the court by the party who calls him-
(a) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;
(b) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;
(c) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted."
Manifestly, the sections enable the cross-examination of a witness by a previous statement made by him in writing but prescribe and they do require that before the statement is put to the witness "his attention... must be called to those parts of it which are to be used for the purpose of contradicting him." It is fair to observe that in the present proceedings although instances abound where the previous statements in writing of witnesses had been demanded by learned Counsel for the appellant, the pattern had always been the same and in no instance had reference been made to any part or parts of the relevant statements with which it was proposed to contradict the witness or even suggested that his statement was otherwise different from his evidence in court. The difficulty of learned Counsel is apparent but it is hardly necessary to observe that no court would lend itself to any form of fishing for evidence and as such foundation must be laid, as it clearly was not laid in the several instances herein, it is pretty wishful to expect an order for the production of the statements in those circumstances. We observe that the learned trial Judge did not rule on the objection of the learned Senior State Counsel to the absence of any foundation for calling for the production of the statements of these witnesses. We have looked at the relevant portions of the proceedings ourselves and we entertain no doubt that as the records stand, the learned trial Judge could not have done otherwise if he had considered the matter from this other angle than to rule that no foundation was indeed laid and, on this score, to refuse to order the production of the relevant statements.
The learned trial Judge however based his ruling on the provisions of section 122 of the Criminal Procedure Code. That section provides as follows:-
"122 (1) Nothing in any way included in or forming part of a case diary shall be admissible in evidence in any inquiry or trial unless it is admissible under the provisions of the Evidence Law or of this Criminal Procedure Code or of rules made thereunder, but-
(a) a court may if it shall think fit order the production of the case diary for its inspection under the provisions of section 144;
(b) the Attorney-General may at any time order the submission of the case diary himself;
(c) any relevant part of the case diary may be used by a police officer who made the same to refresh his memory is called as a witness.
(2) Save to the extent that-
(a) anything in any way included in or forming a part of a case diary is admitted in evidence in any inquiry or trial in pursuance of the provisions of subsection (1); or
(b) the case diary is used for the purposes set out in paragraph (c) of subsection (1),
the accused or his agent shall not be permitted to call for or inspect such case diary or any part thereof but, where for the purposes of paragraph