STEPHEN OTEKI v THE STATE (SC 110/1985) [1986] NGSC 18 (13 April 1986)

STEPHEN OTEKI (APPELLANT)

v.

THE STATE (RESPONDENT)

(1986) All N.L.R. 371

Division: Supreme Court of Nigeria

Date of Judgment: 13th April, 1986

Case Number: (SC 110/1985)

Before: Eso, Uwais, Coker, Karibi-Whyte, Oputa, JJ.S.C.

The case for the prosecution at the trial was that the accused stabbed the appellant with a dagger in the stomach following a quarrel. The facts that led to the quarrel are as follows. The deceased in company of Ayo Johnbull, P.W.1 invited the appellant to a funeral ceremony which took place at Eguare junction at Ugo in Bendel State. PW1 was wearing a shirt which belonged to the deceased. The appellant claimed the shirt to be his. Consequently a dispute ensued between PW1 and the appellant. The deceased made peace between them. Later a quarrel arose between the appellant and the deceased because, according to PW1 the latter asked to know who gave PW1 the shirt in question. But James Aghohowa (PW2), who was the father of the deceased, said the quarrel was due to the appellant 'abusing' him (PW2) to the hearing of the deceased. The quarrel was settled by (PW2) and the appellant went home only to return to the funeral ceremony with a dagger. The deceased who stood by a car to ease himself was stabbed in the stomach by the appellant. PW1 was the only eye witness to the stabbing. The deceased shouted that he was stabbed by the appellant and a number of people present at the funeral ceremony attempted to arrest the appellant but he escaped. The intestines of the deceased protruded and the deceased died not long afterwards on the way to a hospital. The incident took place on 11th January, 1983. The dead body of the deceased was taken to the appellant's house where it was left for 2 days. The appellant went into hiding for 2 days before reporting himself to police at Urhonighe.

In his defence, the appellant testified. The appellant confirmed that he was invited to the funeral ceremony by the deceased and that he agreed to attend but only after persuasion. The appellant denied the facts as stated by the prosecution and gave his own version of the incident. The trial Judge believed the prosecution's case and disbelieved the appellant's evidence and rejected his defence. The appellant was therefore convicted of murder as charged.

The appellant appealed against his conviction to the court of Appeal, but the appeal was dismissed. On a further appeal to the Supreme Court, the issues raised in the appeal for determination by the Supreme Court concern mainly the evaluation of the totality of evidence before the trial Judge.

HELD:

(1)     In a Criminal case, the prosecution has a duty to prove its case beyond reasonable doubt. This duty has first of all to be discharged by the prosecution by making at least a prima-facie case against the accused at the close of its case. If he failed to establish such a case the accused is entitled to be discharged without being called upon to enter his defence. There is no corresponding duty on the accused to prove his innocence unless the prosecution has made such a case against him. In my opinion, there is therefore nothing wrong with the trial Judge assessing the prosecution's case first and making findings of fact before considering and evaluating the appellant's defence.

(2)     On the evidence adduced by the prosecution, it is true that the PW2-the father of the deceased, was shaken and contradicted himself under cross examination. But apart from his testimony, there is the evidence of the PW1, the police investigation officer (PW3) and the medical officer, (PW4) who examined the body of the deceased. There is therefore no doubt, and I am satisfied that the evidence of these witnesses without that of PW2 was material enough to prove the case against the appellant beyond reasonable doubt. The trial Judge did not rely on the testimony of PW1 (the only eye witness) alone to convict the appellant. The criticism of the testimony of PW1 notwithstanding, it is clear that PW1 saw the appellant stabbed the deceased with a knife in the stomach, the deceased died soon after as a result of the wound.

Appeal dismissed.

T.J.O. Okpoko for the appellant.

A.J. Alufohai S.C. 1 Bendel State for the respondent.

Uwais, J.S.C.-At the High Court of Bendel State sitting at Abudu, the appellant, a policeman, was charged with the murder of one Monday Aghahowa contrary to the provisions of section 319 subsection (1) of the Criminal Code of Bendel State, Cap.48 (Laws of Bendel State, 1976).

The case for the prosecution at the trial was that the accused stabbed the deceased with a dagger in the stomach following a quarrel. The facts that led to the quarrel are as follows. The deceased in company of Ayo Johnbull, PW1, invited the accused to a funeral ceremony which took place at Eguare junction at Ugo in Bendel State. PW1 was wearing a shirt which belonged to the deceased. The accused claimed the shirt to be his. Consequently a dispute ensued between the accused and PW1. The deceased made peace between them. Later a quarrel arose between the accused and the deceased because, according to PW1, the latter asked to know who gave him (PW1) the shirt in question. But James Aghohowa (PW2) who was the father of the deceased said the quarrel was due to the accused 'abusing' him (PW2) to the hearing of the deceased. The quarrel was settled by PW2 and the accused went home, only to return to the funeral ceremony with a dagger. The deceased who stood by a car to ease himself was stabbed in the stomach by the accused PW1 was the only eye-witness to the stabbing. The deceased shouted that he was stabbed by the accused and a number of the people present at the funeral ceremony attempted to arrest the accused, but he escaped. The intestines of the deceased protruded and he (deceased) died not long afterwards on the way to a hospital. The incident took place on 11th January, 1983. The dead body of the deceased was taken to the accused's house where it was left for 2 days. The accused went into hiding for 2 days before reporting himself to the Police at Urhonigbe.

In his defence, the accused testified. He confirmed that he was invited to the funeral ceremony by the deceased and that he agreed to attend but only after persuasion. He said that at the ceremony the deceased challenged him as to why he earlier slapped PW1. After explaining that he did so because his clothes were stolen from his house, he apologised to PW1 as requested by the deceased. A short while later PW1 and the deceased went aside for discussion. After the discussion the deceased slapped the accused twice. The accused said he made report to PW2 who pleaded with him not to arrest the deceased as he had earlier intended to do. Later the deceased slapped the accused twice again, pulling out a knife and threatening that he would kill the accused. As the accused decided to leave the scene, he saw the deceased following him with a knife in his hand. When the deceased caught up with the accused a struggle ensued between them and the latter knocked down the deceased on the ground. The deceased was still holding the knife when PW2 came to the scene and intervened by asking the accused to go home. The accused left accordingly but heard later that the deceased had died. Following the death, the house of the accused's father was attacked by the relations of the deceased. Hence the accused fled to the bush. After two days of hiding, he went to the Police Station at Urhonigbe and reported himself to the police.

In his judgment, the learned trial Judge believed the prosecution's case. He disbelieved the accused's evidence and rejected his defence. The accused was therefore convicted of murder as charged.

The accused then appealed to the Court of Appeal. At the hearing of the appeal his counsel submitted that there was nothing useful that he could urge in his favour, and counsel for the prosecution made the same submission. Consequently, the appeal was dismissed by the Court of Appeal. The appeal now before us is from that decision.

Two grounds of appeal which were faulty, were originally filed by the appellant. Leave was later granted for him to file and argue three additional grounds. The original grounds merely complained against what the trial Judge did and made no mention of what transpired in the Court of Appeal. They were therefore abandoned and only the additional grounds on grounds of appeal were canvassed. I think it is necessary to quote the additional grounds. They read as follows:-

(1)     The learned Justices of the Court of Appeal erred in law in affirming the judgment of the learned trial Judge convicting the Appellant of murder and sentencing him to death when

(a)     the conviction of the Appellant based mainly on the evidence of the 1st prosecution witness is not safe,

(b)     the learned trial Judge himself was not certain as to whether his judgment is based on the direct evidence which he said he accepted or on what he described as circumstantial evidence as the basis for his judgment.

(2)     The learned Justices of the Court of Appeal erred in law in upholding the judgment of the learned trial Judge in that

(a)     the learned trial Judge did not give or give adequate consideration to the defence of the Appellant.

(b)     The learned trial Judge adopted irregular method of arriving at his judgment in that he considered only the case for the prosecution and made findings detrimental to the Appellant on the basis of the prosecution's case only before adverting his mind to the defence case.

(3)     The judgment of the Court of Appeal is unwarranted and unreasonable having regard to the weight (sic) of evidence.

In his brief of argument learned Counsel summarised the issues for determination in the appeal as follows:-

(a)     Is it safe to convict the Appellant on the evidence of a purported single-witness, namely, P.W.1 Johnbull Ayo (sic) who was shown to be not only a relation of the deceased but also a person who had a score to settle with the Appellant?

(b)     Was the learned trial Judge right in the approach and attitude he adopted in the trial of the Appellant?

(c)     Was the possibility raised in the Appellant's explanation that the deceased fell over his own knife while pursuing the Appellant completely ruled out in such a way as to leave, the prosecution's case without reasonable doubt?

(d)     Did the prosecution discharge its burden of proving beyond reasonable doubt the guilt of the Appellant?"

Now it is clear from the foregoing that issues which were neither raised nor considered by the Court of Appeal are being raised before us. When learned Counsel for the accused (not Mr Okpoko) informed the Court of Appeal that he had nothing to urge in favour of the accused, was he really not saying, in a way, that he was abandoning the appeal? And if the appeal had been so abandoned was the Court of Appeal obliged to consider the issues now raised in the appellant's brief of argument? A further question is. Could any ground of appeal whether on point of fact or mixed law and fact (as in the present case) which could only be raised with leave of court by virtue of section 2 13 (3) of the Constitution of the Federal Republic of Nigeria, 1979 be filed and argued without leave as such in exercise of the right to appeal under section 213 (2) of the Constitution.

In Chief Frank Ebba v. Washi Ogodo & Anor. (1984) 4 SCNLR 372 my learned brother Eso, J.S.C. remarked at p.385, and I agreed with him, that:-

"... It should be plain to a Court of Appeal that when an issue is not placed before it, it has no business whatsoever to deal with it. A Court of Appeal is not a knight errant looking for skirmishes all about the place."

It follows, therefore, that when counsel for the appellant says in a case that he has nothing to urge, it is not the duty of an appeal court as such to examine the record of the proceedings in the lower court in order to see if there is any point in favour of the appellant or which will sustain the appeal before it could dismiss it. However there may be occasions when the appeal court may in its own discretion, but not as a duty, raise a point suo motu for clarification even if nothing were urged upon it. But counsel cannot be heard to complain, as in the present case, that the appeal court is in error for not doing what was not urged upon it. The argument in such appeal ought to be refused by this Court in the light of our decision in Ejiofodomi v. Okonkwo (1982) 11 S.C. 74 to which I will refer again hereinafter.

By the provisions of section 213 subsection (2)(a) to (d) of the Constitution of the Federal Republic of Nigeria, 1979, an appeal in a criminal case, to this Court from the decision of the Court of Appeal is of right. In other words no leave is required before the appeal could be brought. The most relevant provisions of that subsection which are directly applicable to the present appeal are those in paragraph (d) thereof, which read thus:-

"213 (2)     An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in the following cases:-

(d)     decisions in any criminal proceedings in which any person has been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by any other court."

In Ejiofodomi v. Okonkwo (supra) Aniagolu, J.S.C. observed at p.97 as follows:-

"An appellant's right of appeal as of right does not confer on him an unlimited right to argue any ground of appeal filed in exercise of that right. This Court has the discretion, and indeed, the duty, to refuse an appellant leave, where the justice of the circumstances so dictates, to argue a ground of appeal filed. Nothing in section 213 of the Constitution has the effect of affecting or in any way abridging this discretion. Indeed, by subsection (6) of that section the right of appeal provided by section 213 of the Constitution is to be exercised.

'in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers practice and procedure of the Supreme Court.'

In exercise of its appellate jurisdiction under section 4 of the Appellate Jurisdiction Act, 1876 (See also Sutherland v. Thompson (1906) A.C. 51 at p.55):

'The house of Lords has a duty to determine what ought to be done in the subject matter of an appeal. It therefore has a discretion to allow argument on points of law which were abandoned or not raised in the court below, but is averse to doing so unless a refusal would result in injustice (Vol. 10 Halsbury's Laws of England 4th Edition, para. 745)'."

However since we have already heard argument in the appeal I am inclined to consider the appellant's complaints. But in doing so I shall have to bear in mind the well established principle that an appeal court will not substitute its own finding of fact for that of the trial court except on the well laid down grounds that the finding is either perverse or against law or rule of procedure. See R. v. Ologen, 2 WACA 333, R. v. Yaw Prepah, 4 WACA 34 at p.35; R. v. Kwaku Owusu, 8 WACA 167 at p.169; Victor Woluchem & Ors. v. Chief Simon Gudi & Ors. (1981) 5 S.C.279 at p.326 and Chief Frank Ebba v. Washi Ogodo & Anor.(1984) 4 SCNLR 372 at p.388.

With regard to the first issue for determination the appellant's counsel bases his argument on the premise that P.W.2 was not an eyewitness and therefore the prosecution's case rested entirely on the evidence of P.W.1. Counsel then proceeds to attack the testimony of P.W.1 in order to show that the learned trial Judge did not evaluate his testimony properly. Some of the grounds for the attack are that P.W.1 was unreliable, and the witness being relation of the deceased and having had a previous quarrel with the appellant had a score to settle with the appellant.

On the second issue learned Counsel for the appellant complains that the learned trial Judge considered the prosecution's evidence first and concluded that the charged had been proved before considering and rejecting the appellant's evidence. Counsel submits that the procedures adopted by the trial Judge in assessing the evidence before him in that manner led to the learned trial Judge wrongly evaluating the case for the defence.

The third and fourth issues are argued together. It is submitted by counsel that the evaluation of the appellant's evidence was faulty and cannot be relied upon to sustain the appellant's conviction.

It can be seen from the foregoing that the issues raised in the appeal concern mainly the evaluation of the

totality of the evidence before the learned trial Judge. It is indeed within the trial Judge's province to do so. In a criminal case the prosecution has a duty to prove its case beyond reasonable doubt. This duty has, first of all to be discharged by the prosecution by making at least a prima facie case against the accused at the close of its case. If it failed to establish such a case the accused is entitled to be discharged without being called upon to enter his defence. There is no corresponding duty on the accused to prove his innocence unless the prosecution has made such a case against him. In my opinion, there is, therefore, nothing wrong with the trial Judge assessing the prosecution's case first and making findings of fact before considering and evaluating the appellant's defence. What the trial court was concerned with was the proof of the prosecution's case beyond reasonable doubt and not the lesser standard of proof in civil cases which is based on the weight of evidence or the balance of probabilities. Therefore the procedure for the assessment of evidence as laid down by this Court in Mogaji v. Odofin, (1978) 4 S.C. 91 is limited to civil cases and does not apply when a trial court decides criminal cases. I think it is pertinent to recall what Fatayi-Williams, J.S.C. (as he then was) said in Mogaji's case at p.93. It is as follows:-

"...in deciding whether a certain set of facts given in evidence by one party in a civil case before a court on which both parties appear is preferable to another set of facts given in evidence by the other party, the trial Judge, after a summary of all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence, which weighs more, accept it in preference to the other, and then apply the appropriate law to it, if that law supports it bearing in mind the cause of action, he will then find for the plaintiff. If not, the plaintiff's claim will be dismissed...

In short, before a judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together ... He will then see which is heavier not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil is decided on the balance of probabilities."

On the evidence adduced by the prosecution, it is true that P.W.2 was shaken and contradicted himself under cross-examination. But apart from his testimony there is the evidence of P.W.1 the police investigation officer (P.W.3) and the medical officer, (P.W.4) who examined the body of the deceased. There is no doubt and I am satisfied that the evidence of these witnesses without that of P.W.2 was material enough to prove the case against the appellant beyond reasonable doubt. The learned trial Judge did not rely on the testimony of P.W.1 alone to convict the appellant. The criticism of the testimony of P.W.1 notwithstanding, it is clear and unassailable that P.W.1 saw the appellant stabbed the deceased with a knife in the stomach, and the deceased died soon after as a result of the wound. This evidence was corroborated in material respect by the testimony of P.W.4. That in short is the finding made by the learned trial Judge who also considered the appellant's defence in details before rejecting it. learned Counsel for the appellant has therefore failed to show sufficient reason for us to interfere with the finding.

Accordingly, the appeal lacks merit and it is hereby dismissed. The decision of the Court of Appeal, which confirmed the conviction and sentence of death passed on the appellant by the trial court, is confirmed.

Kayode, Eso, J.S.C.:-I agree with the judgment which has just been delivered by my learned brother Uwais, J.S.C. a preview of which he kindly gave me. I dismiss the appeal and abide by all the orders contained in the aforesaid judgment.

Karibi Whyte, J.S.C.:-I have had the privilege of reading the judgment of my learned brother M.L. Uwais, J.S.C. in this appeal. I agree entirely with his reasoning and conclusions, and that the appeal be dismissed.

I consider it unnecessary to repeat the facts of this appeal which have been lucidly stated in the judgment of my learned brother Uwais, J.S.C. I merely wish to make some short comments on the two contentions by Counsel for the Appellants, namely:-

(a)     that the learned trial Judge ought not to have relied on the evidence of P.W.1 P.W.2 to convict the appellant, even if such evidence was sufficient because they were evidence of persons who could not be relied upon to speak the truth. The Court of Appeal was wrong to have accepted the finding;

(b)     the method adopted by the learned trial Judge in determining the guilt of the appellant on the evidence before him was faulty, and against established principles.

Precisely stated, these were two of the four main issues relied upon by Counsel for the Appellant urging this Court to set aside the conviction. There was no argument urged in favour of the appellant in the Court of Appeal. Consequently, the Court did not go into findings of the trial Judge in any detail. The Court of Appeal found "nothing for which the judgment may be faulted," and accordingly dismissed the appeal.

In this Court, Mr Onomigbo Okpoko sought and was granted leave to file and argue three additional grounds of appeal, which are as follows.

(1)     The learned Justices of the Court of Appeal erred in law in affirming the judgment of the learned trial Judge convicting the Appellant of murder and sentencing him to death when:

(a)     the conviction of the Appellant based mainly on the evidence of the 1st prosecution witness is not safe;

(b)     the learned trial Judge himself was not certain as to whether his judgment is based on the direct evidence which he said he accepted or on what he described as circumstantial evidence as the basis for his judgment.

(2)     The learned Justice of the Court of Appeal erred in law in upholding the judgment of the learned trial Judge in that:

(a)     the learned trial Judge did not give or give adequate consideration to the defence of the Appellant.

(b)     the learned trial Judge adopted irregular method of arriving at his judgment in that he considered only the case for the prosecution and made findings detrimental to the Appellant on the basis of the prosecution's case only before adverting his mind to the defence case.

(3)     The judgment of the Court of Appeal is unwarranted and unreasonable having regard to the weight of evidence.

I am concerned in this judgment with only the first and second of the grounds reproduced above.

The complaint of appellant in the first ground, is that the learned trial Judge relied mainly on the evidence of P.W.1, Johnbull Ayo, as an eyewitness account of the incident for the conviction of the appellant. The relevant part of the evidence of P.W.1 relied upon by the trial Judge is as follows-at pp.2-3:-

"I remember 11th January, 1983, on that day, I with Monday James went to a party at the junction ... The junction where the party took place is at Eguare Junction at Ugo. There I saw the accused person, and along the road of Eguare I saw the accused person, with Monday, now dead. MONDAY and the accused person were (a) about to fight, (b) The Accused person ran home but as he did so; Monday, my brother went behind a vehicle to ease himself. The accused person later came with a dagger, and "daggered" Monday. The accused person then ran away, and the people in the funeral riges pursued the accused person. Some other people went to the Police Station to report. I know the accused person. Before the accused person used the dagger on the deceased Monday, nothing happened between them."

Under cross-examination he said,

"It is true that I had a quarrel with the accused person on 11th January 1983. It is not true that the first fight between Monday the deceased, and the accused person took place on 11th January 1983. It is not true that I did not witness the fight between the accused person and the deceased. I did."

It was the submission of counsel for the accused before the learned trial Judge as it was urged before us that it was unsafe to convict on this evidence alone. The learned trial Judge relying on Commissioner of Police v. Quashie 14 WACA 319 at p.320 and Igbo v. The State (1975) (-11 S.C. 129, rejected the submission on the ground that the deciding factor is whether the witness is believed or not, and held, at p.45 lines 10 17):-

"If I believe the testimony of prosecution witness, I, as an eye witness it is sufficient to prove and establish the Act of the accused persons as being the direct cause of the injury which prosecution witness 4, Doctor Okolie, deposed that he found on the 'lower abdomen' of the deceased when he said, I conducted a post mortem examination on Monday Aghagawa."

The learned trial Judge referred to the Medical evidence that the injury could not have been self-inflicted and that the deceased could not have survived due to a loss of blood. He therefore came to the conclusion, that at p.25-30:-

"The accused person would therefore be seen to have caused the injury to Monday Aghahowa. If therefore the testimony of Prosecution Witness 1 is believed, it is sufficient ground on which to rule that the Act is referable to causing the death of Monday Aghahowa."

The learned trial Judge said at pages 46 lines 28-30:-

"I believe the testimony of Prosecution Witness 1, that a fight took place and that the accused person daggered the deceased."

In considering whether or not to believe the evidence of P.W.1, the learned trial Judge noted that he was aware of the fact that P.W.1 is a brother of the deceased and P.W.2 is his father, and that he is required to treat their testimony with caution. Nevertheless, relying on The State v. Uzor (1972) N.W.L.R. 208, 212, he stated that the Court was in a position to decide whether or not to believe the witness after observing him in Court. For this purpose the learned trial Judge relied on the evidence of P.W.2 as complementing the evidence of P.W.1.

Counsel had submitted before us that the trial Judge did not properly evaluate the evidence before convicting the appellant on it, and the Court of Appeal affirmed the decision without examining what the trial Judge did Counsel gave several reasons. First, he submitted that P.W.1 is an unreliable witness. Counsel referred to alleged inconsistencies in the examination in chief and cross-examination of the witness to demonstrate his contention. It seems that the effort was to discredit P.W.1 as an eye witness to the incident which led to the death of the deceased. Counsel also referred to the observation of the trial Judge that he was aware P.W.1 P.W.2 were related to the deceased, and submitted that the more relevant consideration is the existing bittern