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 bitterness between P.W.1 and the appellant. This it was submitted, was not considered by the trial Judge Counsel argued that it was wrong for the learned trial Judge to regard the hearsay evidence of P.W.2 as circumstantial evidence to compliment the evidence of P.W.1 to prove the fact of injury. Finally, the learned trial Judge did not consider the explanation of the appellant as to the cause of injury which resulted in death of the deceased. It is pertinent to observe that the learned trial Judge was not oblivious of the inconsistencies alleged. He actually adverted to them and held that there were in fact no inconsistencies. Furthermore the trial Judge answered the criticism adequately in his judgment when he said, at p.46 Line 6-23:-

"... Counsel for the accused has urged me to disbelieve Prosecution Witness 1, and reject his testimony because inter alia, he allegedly testified that a fight did not take place between the accused person and the deceased on 11th January 1983, and because he deposed as against other witnesses for the prosecution that the deceased's body was on the road at Eguare instead of Mission Road, and that the deceased and the accused fought at Eguare junction of Mission Road. He has asked me to draw the inference that the witness therefore did not see any fight between the accused person and the deceased. In the face of the testimony of the accused person himself that a fight took place between him and the deceased which is an admission, the alleged inconsistency regarding the date and location of the fight as deposed by the prosecution witness 1, becomes irrelevant. You cannot draw the inference that Mr A is lying about an event, when you yourself admit that the event took place."

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 Emiator v. The State (1975) 9-11 S.C. 112 Igbo v. The State (1975) 9-11 S.C. 129; 136 Commnr. of Police v. Kwashie 14 W.A.C.A. 319 at p.520 Alonge v. Police (1959) 4 FSC.203, 205.

In Igbo v. The State (supra) at p.135, this Court declared:-

"... there is no rule of law or practice which should make a court hesitate in convicting upon the evidence of one witness, in a case where there is no suggestion that the witness is an accomplice, if the Court is satisfied with the evidence given."

Hence, where the evidence of a single witness is sufficiently probative of the offence charged, the fact that the witness has other personal interests of his own to serve, is by itself not sufficient to reject such evidence. The effect of such interests is to place the trial Judge on his guard to warn himself as to the veracity of the evidence. It is for this reason it has been suggested that the judge should warn himself of such interests.

In Rex v. Thompson Udo Essien 4 WACA 112, where all the eye witnesses for the prosecution were members of the deceased's family, and one of them deposed that accused had invoked juju against deceased's family, which evidence was established to be false and not supported by evidence, it was held that even if members of the deceased's family had wrongly believed that accused had done so, their evidence against the accused must be received with caution. In this case the Court below did not appreciate the necessity of this caution. Beside this, the evidence called by the prosecution was quite insufficient to justify the conviction. The appeal was allowed.

In Commissioner of Police v. Kwashie, the Magistrate convicted on the evidence of a single witness whom he believed. There was no suggestion that this witness was an accomplice or was otherwise affected. His appeal to the Supreme Court, as the High Court now was then known, was set aside on that ground. The Prosecution appealed to the West African Court of Appeal, which reversed the decision and held, at p.320:-

"The Magistrate had the advantage, denied the appellant judge, of seeing and hearing the witnesses, and there is no rule of law or practice which should make a court hesitate in convicting upon the evidence of witness, in a case where there is no suggestion that the witness is an accomplice if the court is satisfied with the evidence given."

Thus where the evidence led is true in fact, the fact that the witness has a grudge against the accused and that the judge did not warm himself will not in my opinion weaken its validity. It cannot be seriously contested that where the evidence is direct and unassailable, the mere fact that the witness is the accused's mortal enemy will render his evidence unreliable.

In a calm review of the evidence in this appeal, it is not difficult to reject the criticism by Counsel for the appellant of the trial Judge's evaluation of the evidence. The trial Judge's evaluation of the evidence may not have been the ideal, but is it definitely not so defective as to result in the acquittal of the appellant. The essential facts from the evaluation of the evidence of P.W.1 was his acceptance that (i) a fight took place between the deceased and the appellant and (ii) that the deceased died from the stab wounds inflicted on him by the appellant (iii) the learned trial Judge did not believe the evidence of the appellant that the deceased died as a result of his fall on his own knife or his defence of self-defence. The trial Judge considered the intent necessary for conviction for murder in the circumstances of this case and posed to himself the pertinent questions as follows:-

"... did the accused person in the instant case intend to do grievous bodily harm to the deceased? If he did not, his offence if any falls into a different category not murder, even though the death of Mr Aghahowa resulted there from."

The learned trial Judge having compared the two versions of the evidence, namely that of P.W.1 and of the appellant as to how the deceased came to his death, accepted the evidence of P.W.1 and rejected the evidence of the appellant. The learned trial Judge correctly inferred the intention to kill from the nature of the weapon used and the severity of the injury inflicted on the deceased. There is authority for this view in R. v. Onoro (1961) All NLR.33. The learned trial Judge was therefore right in relying on the evidence of the P.W.1 for the conviction of the appellant.

Mr Onomigbo Okpoko has submitted that the learned trial Judge was not sure whether he was determining the guilt of the appellant on the evidence of P.W.1 alone or on all the other evidence in the case which included the evidence of P.W.2. There is no doubt that P.W.2 was not an eye witness to the fight between the deceased and the appellant. P.W.2 although, was aware on the evidence of both appellant and P.W.1 that all was not well between appellant and the deceased, he was only attracted to the scene of the fight by the cry of the deceased, that he had been stabbed by appellant. He arrived after the deceased had been stabbed and the appellant was trying to escape from the irate crowd, P.W.2 surely did not see when the deceased was stabbed by the appellant.

In my opinion the evidence of P.W.2 as to stabbing of the deceased is stricto sensu circumstantial evidence. It is, such evidence sufficiently recent and connected with the allegation made as to lead to the irresistible conclusion that the accused must have committed to act. In an illustration where A was fighting with B and shouted that B had stabbed him, and B was seen immediately afterwards brandishing a dagger at anyone who dared to hold him, it is in the course of natural events reasonable to presume that B had in the fight stabbed A. This view is clearly supported by Section 148 of the Evidence Act that:-

"The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case..."

Thus, as the fact of death may be established by circumstantial evidence in the absence of any direct evidence, as was in R. v. Sala (1938) 4 WACA 10. Similarly it is sufficient to prove the fact of stabbing, as in this case. The evidence so relied upon must clearly forcibly and unequivocally suggest that accused and no other could have been the offender-See Fatoyinbo v. A.G. of Western Nigeria (1966) W.N.L.R.4.

In Adie v. The State (1980) 1 2 S.C. 116, Obaseki, J.S.C. expressed the effect very lucidly when he declared, at p.146-147:-

"Circumstantial evidence is as good as, sometimes better than any other sort of evidence, and what is meant by it is that there is a number of circumstances which are accepted so as to make a complete unbroken chain of evidence. If that is established to the satisfaction of the jury (the Court), they may well and properly act upon such circumstantial evidence."

I entirely subscribe to this view. In this appeal, the trial Judge regarded the circumstantial evidence as complimenting the direct eye witness account of P.W.1 when in law they are both equally probative and sufficiently too of the fact of stabbing which is an essential ingredient of the offence of murder. There is no doubt that the circumstances stated in this appeal lead conclusively and indisputably to the stabbing of the deceased by the appellant-see State v. Edobor (1975) 9-11, S.C. 69. Hence whether the trial Judge regarded the circumstantial evidence as complimenting, eye witness account of P.W.1 or not the fact is that there is sufficient evidence on either the direct or circumstantial evidence that appellant stabbed the deceased, which resulted in his death. This ground of appeal therefore fails and is dismissed.

The second ground of appeal complains that the trial Judge did not give or give adequate consideration to the defence of the appellant. It was also said that the trial Judge made findings relying on the case of the prosecution case before considering the case of the defence.

It does seem to me that counsel for the appellant clearly ignored the consideration by the trial Judge of the defences raised by appellant which are replete in the records of appeal before us. The learned trial Judge considered the evidence of the appellant and to a possible defence of self-defence open to him and came to the conclusion that appellant was in no reasonable apprehension of death. The learned judge disbelieved the story of the appellant about hearing a voice asking him to run as the deceased was going to kill him and described it as a tissue of lies; and said, at p.60:-

"Consequently, I hold that there was no threat whatsoever to the life of the accused person. There is therefore no need to consider whether the threat was reasonable, or whether there was any apprehension of death. There was none. The defence of self-defence therefore will not avail the accused person to this charge. He must look to other quarters for clemency." See R. v. Onyeamaizu (1958) NRN LR 93.

The view of the learned trial Judge seems to be that even if appellant reacted to a provoked or unprovoked assault, there was no threat to his life such as to necessitate his killing the deceased, his supposed assailant-See Section 286, 287 of the Criminal Code. See R. v. Blake (1942) 8 W.A.C.A. 118. I therefore think that there is no substance in this ground of appeal. It is also hereby dismissed.

I accept in their entirely the reasoning and conclusions of my learned brother M.L. Uwais in respect of the other grounds of appeal, which I also will dismiss.

All the grounds of appeal having failed, the appeal is dismissed. The conviction and sentence imposed by the court of trial and affirmed by the Court of Appeal is hereby further affirmed.

Coker, J.S.C.:-The appellant was convicted of murder by Omafe, J. sitting at Abudu in the High Court of Bendel State and sentenced to death under section 319(1) of the Criminal Code, Cap.48 Vol.2 Laws of Bendel State, 1976. He appealed to the Court of Appeal and in that Court both his Counsel and the learned State Counsel said they had nothing useful which could be urged in his favour and the appeal was dismissed.

Pepple, J.C.A., in the lead judgment after reviewing the evidence and finding of the trial Judge stated:-

"The judge was painstaking in examining the evidence led by prosecution and defence. He reasoned that if the deceased had the dagger in his hand and fell on it when he was thrown by the appellant, it should be stuck in the belly of the deceased or at least by lying somewhere near his body. But there is no such evidence. In fact the dagger was not tendered, nor was its absence explained. In court, the appellant said that after he had felled the deceased, the father of the deceased asked him to go home. The judge considered this and found it incredible that the father of the person who had only just been killed would do no more than ask his killer to go home. The judge carefully weighed the evidence and also considered possible defence upon to the appellant, and rightly concluded that he could not have the benefit of any of them."

However, Mr Okpoko, learned Counsel representing the appellant sought and was granted leave to substitute three grounds of appeal for the two grounds in the notice of appeal. It may be pertinent to observe that the third grounds states that the judgment of the Court of Appeal is unwarranted and unreasonable having regard to the weight of evidence, which is a ground more appropriate to appeal in a civil action rather than that in a criminal charge. See section 20(1) Court of Appeal Decree No. 13 of 1976 and Aladesuru v. The Queen (1956) A.C.49.

The two other grounds and the issues which learned Counsel for the appellant has asked to be determined have been set out the leading judgment just read by my learned brother, Uwais, J.S.C. draft of which he had kindly shown to me. I agree with the facts of the case as stated by him and the reason for his decision, and only wish to say the following observations for sake of emphasis only.

As regards the proceedings before the Court below, I am satisfied that the learned justices of the court below did not dismiss the appeal simply because both Counsel informed the Court that they had nothing useful which they could urge in favour of the appellant. It is clear from the lead judgment read by Pepple, J.C.A. that the court read the record of the proceedings, considered the facts of the case which were reviewed in the lead judgment and as was therein stated, 'also considered possible defence(s) open to the appellant, and rightly concluded that he could not have the benefit of any of them.'

I have myself read the record of proceedings in the trial court and the brief of argument filed by his learned

Counsel and that of the learned Senior State Counsel, and after listening to their oral submissions before the court, I have come to the decision that all the grounds of appeal fail and that the appeal should be dismissed.

I agree that the criticism levelled against the decision of the learned trial Judge are without substance.

In ground 1, Mr Okpoko submits that Omage, J. based the conviction of the appellant on the evidence of P.W.1 alone, and that it was not safe to do so. He further submits that it was not clear to the judge himself whether the evidence of the witness was direct or circumstantial. With respect to learned Counsel, a careful reading of his judgment makes it clear that his judgment was based partly on the direct evidence of 1st P.W. coupled with circumstantial evidence of other witnesses including evidence of the appellant himself. After carefully examining the evidence of witnesses one after the other, together with the statement of the appellant to the police and his evidence before him the learned trial Judge made the following findings of fact.

"(1)    That Monday Adhahowa died as a result of injury sustained by him.

(2)     That he died on 11th January, 1983.

(3)     That the injury sustained by Monday Aghahowa was caused by Stephen Oteki the accused person.

(4)     That the injury was grievous enough to deduce as intent to kill under Section 316 Sub-section 2 of the Criminal Code Law."

The learned trial Judge further considered the submissions of learned Counsel for the appellant. He regarded the evidence of 2nd P.W. the deceased father as unreliable. And before making his findings he said.

"If I believe the testimony of Prosecution Witness 1, it is sufficiently direct and clear to prove the fact in issue. If I believe the version of the defence, then I must negate intention of the accused to cause harm, and held that the death of the deceased was an accidental death. The version of the accused person was that he was pursued by the deceased person with a knife. As the knife was never tendered, and its whereabout not explained in Evidence, there is nothing to establish its ownership or its source which would have aided a decision as to how it appeared on the scene, and who used it. This case did not provide such facility. It is therefore necessary in order to determine the perpetrator of the injury to consider the circumstantial Evidence, that is evidence surrounding the facts of the moment before and immediately after the knife was produced and used. Prosecution Witness 1 in his testimony had said as follows:-

"Monday and the accused person were about to fight. The accused person ran home but as he did so, Monday my brother went behind the vehicle to ease himself.

The accused person later came with a dagger and daggered Monday, the accused person then ran away."

The learned trial Judge then after reproducing the evidence of P.W.2 came to the following decision:-

"In my judgment this testimony is believable than that of the accused person who deposed that upon the incitement of certain unnamed and unidentified persons the deceased began to pursue him with a dagger. It would follow if the accused is to be believed, that the deceased was holding the dagger or knife. If this is so, that the dagger or knife should be found still in his hands when as the accused person deposed the deceased person fell down on it. There is no Evidence to show that any dagger was found in the hands of the deceased and there is nothing to show that both the deceased and the accused persons carried a knife or dagger at the first verbal encounter. However while Evidence of Prosecution Witness 1, and that of the accused person and of Prosecution Witness 2, show that the accused person had opportunity to go and fetch a dagger or knife, i.e. 'I left the spot' D.W. (Sic) Prosecution Witness 1: 'The accused went to his father's house to bring a dagger' Prosecution Witness 2: 'I told Uwuigbe to forget everything and go.' No such Evidence show that the deceased went away from the scene of the party. Because of the state of Evidence in this charge I have to rely on the circumstantial evidence when it leads irresistibly to the guilt of the accused person and there is no co-existing circumstance tending to weaken or destroy the inference that the accused person is the culprit, the decision to be made is clear. In the instant case, I see no co-existing fact tending to weaken the testimonies of Prosecution Witness 1 and Prosecution Witness 2, on the circumstances surrounding the incident before and after the event, as they all point to the fact that the accused person had opportunity to fetch a knife or dagger from his fathers house."

From the foregoing it is therefore without doubt that the judgment of the trial Judge was not based on the evidence of 1st P.W. alone but on the totality of the evidence before him.

Similarly, the case of the defence was fairly and meticulously considered by the trial Judge before coming to the conclusion.

"The story of the accused person about hearing a voice asking him to run as the deceased was going to kill him is a tissue of lies and I do not believe it also. Consequently I hold that there was no threat whatsoever to the life of the accused person. There is therefore no need to consider whether the threat was reasonable, or whether there was any apprehension of death. There was none. The defence of self defence therefore will not avail the accused person to this charge."

As I have said earlier, I am in full agreement that no argument of substance has been advanced before this Court to justify interfering with the decisions of the trial court and of the court below. For the foregoing reasons and the more comprehensive reasons given by my learned brother, Uwais, J.S.C., I will dismiss the appeal and further affirm the conviction and sentence.

Oputa, J.S.C.:-The Appellant was tried and convicted of the murder of one Monday Aghahowa by Omage, J. (as he then was) and sentenced to death. The Appellant then appealed to the Court of Appeal Benin Division (Coram Ete, Ikwechegh, and Pepple, JJ.C.A.). In the Court of Appeal, Eduvie for the Appellant and Mrs Ojo for the Respondent both submitted that they had nothing to urge in favour of the Appellant and both therefore urged the court to dismiss the appeal. In his lead judgment, Pepple, J.C.A. (Ete and Ikwechegh, JJ.C.A. concurring) found "nothing for which the judgment may be faulted and this appeal must therefore be dismissed." He accordingly dismissed the appeal.

The Appellant has now appealed to this Court. In addition to his two original grounds of appeal, his counsel, Mr

Okpoko, asked for and obtained leave of this Court "to hear the appeal on its merits and to argue three additional grounds."

I have had the privilege of reading in draft the lead judgment just delivered by my learned brother Uwais, J.S.C. and I am in full agreement with his reasoning and conclusion. There is however one aspect of this appeal that calls for further comments, namely the quantum of proof required in criminal cases. The first of the additional grounds of appeal complained that:-

(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 1st prosecution witness is not safe."

Every now and again the question has been asked, how many witnesses should the prosecution call to prove its case beyond reasonable doubt? What is the meaning of proof beyond reasonable doubt? Bucknill, L.J. in Bater v Bater (1951) p.35 observed:-

"I do not understand how a court can be satisfied that a charge has been proved ... if, at the end of the case, it has a reasonable doubt whether the case has been proved. To be satisfied and at the same time to have a reasonable doubt seems to me to be an impossible state of mind."

In other words, when a court is satisfied that the charge has been proved, then that case has been proved beyond reasonable doubt.

Now the question arises-How is a charge proved. The answer is simple-by calling evidence. The sole object and end of evidence is therefore to ascertain the truth of a disputed fact or several disputed facts, or in ornate legal phraseology to resolve points in issue. Proof is the logically sufficient reason for assenting to the truth of a proposition advanced. In its juridical sense, proof will include and comprehend everything that may be adduced at the trial, within legal rules, for the purpose of producing conviction in the mind of the judge or jury. The whole and entire exercise is to discover the truth of the point in issue. And truth is not discovered by majority vote, by counting hands or heads. No. One witness who is believed will carry more conviction than ten witnesses who are disbelieved or whose testimonies do not induce belief. Although belief is subjective, yet still the judge before believing will subject the evidence to the objective test of probability. Where the facts deposed to by a witness look probable when considered in relation to all the surrounding circumstances of the case, they induce belief. Probability is always a safe guide to the sanctuary where truth resides.

As Aristotle once put it-"Probability has never been detected bearing a false testimony."

Let me now apply the above to the evidence of Ayo John Bull called as the 1st prosecution witness in the case on appeal. His testimony can be briefly summarised thus:-

(1)     He was at the funeral ceremony and so were the Appellant and the deceased.

(2)     He saw the Appellant quarrel with the deceased. They had a row.

(3)     He saw the Appellant run home.

(4)     The deceased the went to a corner to ease himself.

(5)     Then the Appellant re-appeared with a dagger.

(6)     He saw the Appellant stab the deceased with his dagger.

There was medical evidence from Francis Okolie called as P.W.4 to the effect that the deceased had a stab wound in the lower abdomen which damaged the kidney, the spleen and the intestine. The doctor also testified that the death of the deceased was due to injuries caused by a sharp instrument like a knife. It is to be observed that the evidence of P.W.1 is consistent with the doctor's finding.

What was the Appellant's story? There is no dispute that Appellant was also at the funeral ceremony. He admitted that. There is no dispute that there was a row between the Appellant and the deceased. That is common ground. The Appellant said that the deceased slapped him four times and then brought out a knife saying that he (the deceased-'will finish me' (the Appellant). The Appellant's story is that the deceased fell on his own knife and that he did not stab him. Only one solitary issue arose from the facts as deposed to by the prosecution and the defence namely:-

Was the deceased stabbed by the Appellant as P.W.1 deposed to

OR

Was the deceased wounded by his own knife as the Appellant swore to?

The learned trial Judge after reviewing the evidence of other witness, weighing the surrounding circumstances of this case, and after observing the demeanour of the P.W.1 and the Appellant in the witness box, chose to believe P.W.1 and to disbelieve the Appellant. At page 46 Lines 27 to 30 of the Record, the learned trial Judge held:-

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

The judge did not even stop there for at p.47 Lines 14 to 18 of the record he continued:-

"...I now consider any other testimony of the other witnesses to see if at all it can support and lend weight to the testimony of Prosecution Witness 1 on this issue of the injury said by the Prosecution to have been received by the deceased person from the accused person."