IN THE SUPREME COURT OF NIGERIA
Friday, March 28, 1969
Before Their Lordships
COKER, AG, CHIEF JUSTICE, NIGERIA
LEWIS, JUSTICE, SUPREME COURT
FATAI WILLIAMS, AG, JUSTICE, SUPREME COURT
: The appellant was convicted by Bate, J., in the High Court, Makurdi, of the unlawful killing of one Peter Odeh and sentenced to death. The charge on which the appellant was tried reads as follows:-
“That you, on or about the 1st day of Feb. 1968 at BAGAR village in Agatu District of Idoma Division within the Benue-Plateau Magisterial District did commit culpable homicide punishable with death in that you caused the death of PETER ODEH by doing an act to wit; by beating and stabbing him with a knife with the knowledge that his death would be the probable consequence of your act and thereby commit-ted an offence punishable under section 221 of the Penal Code and tri-able in the High Court.”
The appellant was one of two soldiers tried together in consequence of the death of the deceased, Peter Odeh: but the second accused, one Amadu Audu, was, for reasons stated in his judgment, discharged by the judge. In all, eight witnesses gave evidence for the prosecution and the appellant gave evidence in his own defence. The case for the prosecution was that the appellant entered into the house of the deceased, who was a Native Court President, armed with lethal weapons, pounced upon the deceased and stabbed him severely inflicting upon him injuries from which he died soon thereafter.
The appellant had appealed against his conviction and the ground canvassed on his behalf is that the verdict is against the evidence. It is fair to observe that before us learned counsel for the appellant did not challenge the details of the events leading up to the death of the deceased as given in evidence by the prosecution witnesses. Counsel however submitted and argued strongly that the prosecution witnesses either told lies as to what they claimed to have seen or that the cumulative effect of their testimony which the learned trial judge relied upon for convicting the appellant, was such that the court should have rejected the case for the prosecution as the prosecution witnesses were rather confused as to the date on which the events they saw and witnessed did in fact occur.
We have already set out the charge and it is clear that the appellant was accused of killing the deceased on the first day of February, 1968. The first prosecution witness, an inspector of the Idoma Local Administration Police, testified to having received the appellant into custody from the Military Police on the Ist February, 1968, and to having taken a statement of the appellant on that day. The statement was produced and put in evidence as exhibit ‘1’. Looking at the statement it is clear that it was made on the 5th February, 1968. The 2nd prosecution witness was Grace Odeh. She was on visit to Peter Odeh (later deceased) on the day and time when it was alleged that the two accused persons attacked him. She stated that this event happened on the 1st January, 1968. The 3rd prosecution witness, one Dr. Wilson Ochife of the General Hospital, Makurdi, testified that it was on the 1st February, 1968, that he treated the man Peter Odeh for the injuries alleged inflicted on him by the appellant. He was sure of the date, for in the course of his evidence he stated as follows:-
“I did not know him before 1st February last (i.e. the deceased). He was identified to me by his brother.”
The 4th prosecution witness, Alhassan Eyukwodani of Oturkpo, deposed in evidence to having seen the two accused persons, soldiers, armed with knives and a gun on the 1st January, 1968, and that he had followed them to the house of Peter Odeh. Indeed, the witness described in detail what happened at Peter Odeh’s house and told the court as well that a number of other persons also witnessed the incident of that day. The 5th prosecution witness, Suleman Adobunu, District Head of Agatu, also gave evidence for the prosecution. In his evidence he told the court how he was called on the 1st January, 1968, at about 11 a.m. to the house of the deceased where he saw the two accused persons and spoke to them. Adwa Odiba, a dispensary attendant, was the 6th prosecution witness. He saw the deceased on the 1st February, 1968, with stab wounds in his belly and vomiting blood and arranged for him to be carried to the General Hospital. The 7th and 8th prosecution witnesses recalled in their evidence incidents happening in February, 1968
In his judgment the learned trial judge started inter alia as follows:-
“I accept the evidence of Alhassan and Grace Odeh. I see no reason to disbelieve the evidence of Adobunu or of Ada Odiba. I note that Abu has denied both in his statement to the Police and in his evidence that he stabbed Peter. But for the reasons which I have already given I am unable to believe him. I find as a fact that Abu Ankwa about the 1st February last at Bagaji stabbed Peter Odeh in the side of his stomach and so caused his death. He must have known that death would be the probable consequence of his act. This is culpable homicide punishable with death within s.221 of the Penal Code.”
If as stated by him the learned trial judge accepted the evidence of the prosecution witnesses referred to by him, then it is questionable what date the evidence established that Peter Odeh was killed by the appellant. Earlier on in the course of his summing-up of the evidence the learned trial judge had stated as follows:-
“Suleman Adobunu, the village or District Head, said that he had seen both accused in Bagaji village on the 1st February last.”
That of course was a mistake for the man Suleman Adobunu testified not as to the 1st February but as to the 1st January. If the statement made by the appellant, exhibit ‘I’, were carefully read it is apparent that he was relating a story of what took place in January, 1968-a time when, according to the charge preferred against the appellant, the offence had not been committed, The statement, exhibit `1, is dated the 5th February, 1968, a few days after the offence alleged in the charge must have been committed if committed at all and it would be entirely preposterous to conceive that the appellant would have made a statement of the tenor of exhibit `1 in support of incidents put to him by the police as having involved him some 5 days previously. An accused person after arrest is entitled to know the cause of his arrest (see section 38 of the Criminal Procedure Code) except when caught in the course of committing the offence or escaping therefrom and it must certainly be questionable whether the appellant was told that he was arrested for an offence committed on the Ist February, 1968 as eventually charged.
What is more important however is the conviction of the appellant of the charge on which he was tried. The evidence before the court was clearly utterly confused as to the date of the incident, and as the learned trial judge did not advert in his judgment in any way to the discrepancies in the evidence of the prosecution witnesses as to the date of the commission of the alleged offence, we are clearly of the view that the evidence before the court ought to have left the court in some serious doubt as to the proof of the commission of the crime as charged. It is a fundamental principle of criminal law that such a doubt must be resolved in favour of the accused and we see no reason to depart from that age-long principle in this case. The only problem now is the nature of the order to make in the circumstances.
Learned counsel for the appellant has asked us to discharge the appellant whilst the learned Senior State Counsel appearing for the respondent has urged that we should order a re-trial. The matter is not all that at large and must be approached from a view of whether or not in the circumstance this Court can order a re-trial. In the case of Yesufu Abodundu & Ors. v. The Queen (1959) 4 F.S.C. 70 the factors to be taken into consideration before deciding to order a re-trial in a criminal case were fully considered and at p. 73/74 the following statement of the legal position occurs:-
“We are of the opinion that, before deciding to order a retrial, this Court must be satisfied (a) that there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such a character that on the one hand the trial was not rendered a nullity and on the other hand this Court is unable to say that there has been no miscarriage of justice, and to invoke the proviso to section 11 (1) of the Ordinance; (b) that, leaving aside the error of irregularity, the evidence taken as a whole discloses a substantial case against the appellant; (c) that there are no such special circumstances as would render it oppressive to put the appellant on trial a second time; (d) that the offence or offences of which the appellant was convicted, or the consequences to the appellant or any other person of the conviction or acquittal of the appellant are not merely trivial; and (e) that to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it.”
All these factors must co-exist so that a case may be sent back for re-trial. In the present case learned Senior State Counsel conceded that at least condition (a) could not be satisfied in this case but he submitted that the conditions described in Abodundu’s case are not necessarily exhaustive of the powers of the court in ordering a re-trial. That may be so, but it is hardly open to argument that a court of appeal will not send a case back for re-trial simply for the purpose of enabling the prosecution to adduce, as against the appellant, evidence which must convict him when his success at the appeal is based on an absence of that same evidence.
We do not think that this is an appropriate case to be sent back for re-trial. The appeal of the appellant succeeds and it is allowed. The conviction and sentence passed on him are quashed and in their place it is ordered that a verdict of acquittal be entered in his favour.
Appeal allowed: Conviction quashed.