MACAULAY, J.C.A. (Delivering the Lead .Judgment): The appellant before us was arraigned, tried, convicted and sentenced to death by the learned trial Judge, Hon. Justice D.E.Y.

(c) IDENTIFICATION.

Learned counsel contended that the person killed, Sambe Sarkin Power (Pawa), was not identified to PWI by anyone who knew the deceased, but by a stranger from Kunguma village, who, not only was not called, but whose blood relationship with the body, the doctor did not know, since he was not told. He said that even though there was no

eye-witness to the alleged crime, the police did nothing to bring a proper person who knew the deceased, and who should have identified the body to PW.1. He said that Inuwa  Kachalla was not even the person mentioned by the doctor. Whereas, he said, the incident took place at Tugga village where PW.4 might have been expected to identify the body, that task was left to a complete stranger, a man from another village, Kunguma.

Finally, learned counsel played his trump card when he contended that the confessional statements, Exhibit 1, 1A, tendered through PW2, were not properly proved to have been made by the appellant. In his follow-through submission, he pressed home the argument that, once the appellant denied ever making the statement at all, the superior Police Officer who verified the alleged confessional statement, should have been called. In effect, he contended that the prosecution case, propped as it is on that confession, fails and must fail once that statement is removed. In the event, he submitted that the prosecution has not discharged the onus placed on it by the law under Section 137 (1) of the Evidence Act, and the appellant therefore, deserves a reverse verdict of acquittal.

In his reply, Mr. Mangaji, learned Senior State Counsel Grade I, intimated the Court that he would be adopting his brief of argument in its totality, and would answer the points raised in Appellant's brief of argument, seriatim. He however proceeded to address all the concerns raised in the grounds of appeal, together. In the process, he conceded that there are indeed contradictions, and that the evidence of PW3 relating to the discovery of the bicycle was hearsay; that the learned Judge in his judgment having rejected this evidence, which he said he had expunged from the records, there was nothing left to connect the appellant with the bicycle, in so far as Inuwa Kachalla has not been called by the prosecution to give evidence. This he conceded, left the Court with Exhibits 2 and 2A, one of which was found during the search conducted at the appellant's house: He submitted that the ownership of these exhibits is only explicable on the premise that the contents of Exhibits 1 and IA are true. He said there was a police signal from Yola and conceded that the fight took place on 12/3/78, and the police were on tire scene on 13/3/78. He said that though PW1 and PW4 observed different wounds on the body, the latter being a layman should be excused for the lapse which did not ensure to rob him of his ability, perhaps qualifications, to testify to the fact of his personal knowledge of the deceased. Learned counsel submitted that on the point of identification, the ratio decidendi laid down in the R. v. Laoye 6 WACA 6, could be distinguished in that, in the case cited, barring medical evidence, there was no scintilla of injury sustained on the body. Though he contended that the learned trial Judge found Exhibits 1 and 1A properly proved, and thereby admitted them, he conceded that in their absence, there would have been no case made out by the prosecution against the appellant, since the latter's case wholly rests 011 them.

When asked by the Court what Exhibits 1 and 1A proved if accepted, the learned Senior State Counsel submitted that, on the admitted evidence of a sudden fight, admitting also that on the face of the Exhibits it was the deceased who provoked the fight, the Court could return a guilty verdict and the appellant convicted under Section 224, particularly as the appellant did not confess to culpable homicide under Section 221(1) of the Penal Code.

I shall now take the additional grounds of appeal, seriatim, as canvassed and replied to in the respondent's brief of argument.

GROUND 1:

It is trite law that it is not the duty of the Judge to refer in his judgment to every inconsistency or inaccuracy in the evidence of witnesses. It is enough that the learned counsel for the respondent has conceded that there are inconsistences and has narrowed that margin to a consideration of the material ones with respect to the bicycle and the  shoes, Exhibits 2 and 2A, and Exhibit 4. There is no doubt that there was no proof as to the ownership of Exhibit 4, neither was there any suggestion that it belonged to the appelllant. It is' also not in dispute that Exhibits 2 and 2A and 4 were picked up Hi somehow, albeit at different times, at the scene and at the house of the appellant, respectively. As to the latter exercise, there is no evidence as to how the search was conducted, much less, whether any search warrants were executed at all, and if so, on whom. In the result, it is possible but just probable, that Exhibit 2, 2A, 3, 3A, 40reven 5, may all have been planted, either by Inuwa Kachalla or anyone else for that matter, and it would be unsafe even to speculate that they have any connection with the appellant, only because they were recovered as attested to. In my view, therefore, grounds 1and 4 succeed.

ISHOLA vs. THE STATE (1978) 2 L.R.N. and the authorities cited t herein at pages 125/7,  lay down the accepted postulate that inconsistencies, where found, could be ignored if they are insignificant or de minimus, and not otherwise material.

GROUND 2: (see page 9)

The decision in R. v. Gould (1840) 9 C & P 364, accords with the requirements of Section 29 of the Evidence. Law, which in effect postulates that, facts discovered in consequence of inadmissible information given by the accused, together with evidence that such discovery was made in consequence of the information, may be given even where the information itself, would 1I0t be admissible in evidence. To parody that statement, I am of the view that evidence of the finding of the right leg of the rubber shoe (Exhibit 2A), allegedly from the house of the appellant together with the evidence that the said discovery was gleaned from Exhibit 1, 1A, may be given where these Exhibits themselves, that is, the confessional statements, would not be F; admissible. The only proviso however is that, if the fact discovered is relevant, evidence of it is admissible irrespective of the source. In Sadan & Anor. v. State (1968) N.M.L.R. 208, following Kuruma vs. The Queen (1955) A.C. 197, it was held that if evidence is relevant, it is admissible and the Court is not concerned how it was obtained. In Criminal cases, however, a Judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused. Whether, as suggested by Mr. M:tngaji that this "unorthodox", exercise or procedure was surplussage which the learned trial Judge permitted himself to be indulged in, there was nothing wrong in the Judge asking (there is no evidence he embarked on any force) the appellant to try to two halves for size even if, after all, the shoes were in fact not his, and/or were otherwise planted by a person or persons whose feet might well have fitted, equally splendidly. This ground fails.

GROUD 3: (See page 9)

Confession as a specie of admission is defined in Section 27(1) of the Evidence Act as an admission made at any time by a person charged with a crime, stating or suggesting the inference, that he committed that (particular) crime. "Admission" is often used as an admission of some fact relevant to a crime; whilst "confession" is sometimes confined to a full admission of guilt (see an Introduction to Evidence, 4th Edition p.298 by Professor Nokes). As I pointed out earlier, the charge and particulars stated that the appellant killed Sambe Sarki Power On or about the 13th day of March, 1978, at Tugga village......... Exhibit 1A which is the English translation of the Fulfude version, is at the worst, the appellant's perception, in his own words, of what he said happened. The learned trial Judge must have seen it in that light. How otherwise did he interpret it when at page 30 (lines 26-28) he said, inter alia;

"...... I propose to receive his story stating his own side of the case in the form in which he decided to present it ............ This I think I can do by reason of Section 181(2) of the Evidence Law"

"Earlier on, at the same page, he had said, "The accused did not give any reason for refusing to affirm or swear an oath and so section 181(1) cannot apply to the case in hand. There is no provision in the Criminal Procedure Code which allows an accused to make an unsworn statement in the High Court.. .. "

(But see Section 191 Criminal Procedure Law as read with Sections 230 and 231 Criminal Procedure Law). Under section 231, the accused can only swear if he so wishes and cannot be asked any questions as to why he refused to affirm or swear on oath. At page 32 of the record (lines 1-4) the learned trial Judge, after reviewing the evidence of P.Ws. 2, 3 and 4, concluded by saying "I believe that the accused made the statement voluntarily as to Exhibit 1 ......."

At page 33 (lines 2-8) he said quote;

"I further hold that Exhibit 1 was made by the accused ...... Having found that Exhibit I is a confessional statement, does it amount to a confession of murder? It is true that at the time the accused made Exhibit 1 he did not know that he was confessing to murder as he was then not aware that the deceased had died but........ .intends the natural and foreseable consequences of his act ...... (unquote)

In further argument before this Court, the learned Senior State Counsel Grade I had conceded that the appellant did not confess to culpable murder, and if there was any conviction at all, it could have been under Section 224 of the Penal Code. It seems to me that the learned Judge didn't attempt to answer the question he asked himself whether Exhibit 1 amounts to a confession to murder.

Without going further, it seems to me that on the evidence before this Court Exhibit 1 and 1A which is the sheet-anchor of the prosecution's case, might well be the last plank in the drifting shipwreck in the face of the prosecution's admission that, in the absence of Exhibit 1 and 1A, there would have been no case made out against the appellant. Was that statement, freely accepted as the appellant's own story, a confessional statement, made voluntarily? If it was a confessional statement voluntarily made, was it satisfactorily proved? If it was not, was the learned trial Judge entitled to use it? It is settled law that where an accused person confesses to a crime, even as in this case, where there is no eye-witness of the killing, there is no law which prevents his being convicted on his confession alone, provided it is   positive, direct and properly proved, though invariably, there are other circumstances outside the confession which help to stabilise it (The State v. Oji Oronsi (1969) 1 NMLR 204 at 206): But it is only advisable to have some other evidence outside it, no matter how slight, to show that the confession was made Kanu & Anor. v. The King 14 WACA 30). In James Obi Achabua v. The State (1976) 12 S.C. 63) the Supreme Court held that confession alone, even without corroboration, can support a conviction so long as the Court is satisfied of the truth, and this beyond reasonable doubt. (Section 137(1) of the Evidence Law) Any lingering doubts as in this case, not greatly lowered by the prosecution's failure to prove conclusively both the confession and the subsequent authentification of the alleged confession before the Senior Police Officer before whom the appellant was taken, must create a doubt which can only ensure to the benefit of the appellant under Section 137(1) of the Evidence Act. At bottom line, as the law stands, in all cases, the whole of the confession should be given in evidence. As the Federal Supreme Court stated in The Queen v. Itute (1961)1 All NLR. 462 at 465.

“....... The whole of an account which a party gives of a transaction must be taken together, and his admission of a fact disadvantageous to himself, shall not be received, without receiving at the same time his contemporaneous assertion of a fact favourable to him, not merely as evidence that he has made such assertion, but as admissible evidence of the matter thus alleged by him, in his discharge."

The learned trial Judge himself at page 35 (lines 16-20) said;

"In Exhibit 1 and 1A, however, the accused has private defence of his person, self-defence and or provocation. On his general denial, I do not believe him and prefer the case put forward for the prosecution .......".

Further down at (lines 34-36) he then concluded thus

"The onus is on the accused to prove by evidence the truth of the story that he has told to in Exhibit 1".

But how could he do this after he had said in his defence.

"I was never taken before a superior Police Officer" (page 16, lines 25-26)1 Yet that officer who counter-signed Exhibit I, and who shall have authenticated same on a fresh questionnaire, was not called, if only to assist the learned Judge in weighing up the elements of the confession .he admitted as made voluntarily. Not having done so, any dispassionate observer, not least this Court, may be excused the temptation of adopting the observation of Uwais, J.C.A. (as he then was), in Ibrahim vs. State (1979)3 LRN page 110, where at 1161 7, he said, inter alia,"

...... The Chief Judge concerned himself mainly with the issue whether the confession allegedly made by ........was admissible under Sections 27 and 28 of the Evidence Law, but did not consider in detail, if, after admitting tile confession, he should act on it. ....."

I am also firmly of the view that the appellant's statement did not amount to a confession to culpable homicide, punishable under section 221(1) of the Criminal Procedure Law. On the final concession of the learned State Counsel that if the stabbing allegedly admitted by the appellant in Exhibit 1, 1A did take place, the act would amount to self-defence, it seems to me that, such admission would be a complete answer to the killing. It is clear on the records that the learned judge, after having himself stated the requirements for any reliance on Section 65 of the Penal Code, merely dismissed this aspect of an available defence to the appellant with the bland statement at page 37 (lines 16-18)

"As stated earlier, I do not believe that the deceased attacked the accused with a knife or at 'all......."

Quite clearly, he never considered whether the appellant used a knife at all, and if he did, whether he did so in the agony of the moment when he lashed out with his knife blindly into the darkness...... In my view therefore this ground succeeds.

GROUND 4: (see page 9)

This point has already been disposed of in Ground 1. GROUND 5: (see page 9/10)

The prosecution has a complete discretion with regard to whom it can call as its witness, and would therefore be expected to call such material witness(es) as could be sufficient for it to prove its case. The defence cannot crowd its style. If however, there is a material witness which it has failed or neglected or perhaps, refused to call, the prosecution is obliged by law, and neater practice requires that at the request of the defence. such witnesses will be   available to it for cross-examination, or otherwise the statement(s) of such a witness( es) would be made available to it, for whatever use the defence might wish to make of such statements, should it decide against F" getting the facts from the witness box.

In this case, lnuwa the jack in the box, has undoubtedly featured under conditions that would have made his testimony helpful to the fair hearing of this case, if the prosecution chose to call him as a witness. The prosecution not having done so, it is trite law that the accused was at liberty to call any witness including him, if he felt he/or they would assist his case. It is clearly the law that the mere fact that a witness has been called at one stage  by the prosecution, will not derogate from his right to call the same witness for his defence. (sec Onifade & Ors. Vs. State (1968) NMLR, 261. Indeed on the records at page 39 (lines 12-21) it would appear as the learned trial Judge observed, that".

"Throughout. the trial till the address by Counsel. the accused and his counsel did not inform the Court that they would want Inuwa Kachalla called as a witness ... " "The failure by the prosecution to call Inuwa Kachalla as a witness does not, in my opinion, affect the strength of the case made against the accused" (unquote)

With regard (see 148 C.C.) of the Evidence Act, it is my view that the proposition of the law in Criminal cases, as advanced by learned Counsel for the appellant, is not a correct statement of the law. Section 148(d), usually called in aid in Civil cases deals with the failure (usually of a defendant), to call evidence, and not the failure to call a particular person. A party is not bound to call a particular witness if he thinks he can prove his case otherwise. Also it must be shown that that party "withheld" the proposed witness, or that his evidence was indispensable in order to enable him establish his case.

In Criminal cases, the calling of a witness, is at the discretion of the prosecution. They are not bound to call a witness who will not speak the truth or who, from the circumstance of the case, is better called by the defence.

"The case of James.v Babatunde v. The State, cited by learned Counsel Mr. Nwaiwu, in fact dealt with Section 148(a) of the Act which postulates the presumption relating to possession of stolen property. It has nothing to do with the prosecution having anything to hide, unless perhaps it can he said that it was the prosecution that with-held such witness or that his evidence was indispensable in Older to enable the appellant rebut the claim of the prosecution with regard to recovery, perhaps possession of the exhibits, particularly Exhibit 4, the bicycle, proof of any of which element, could supply the deadly nexus between the crime and the appellant, or that in the absence of the evidence of Kachalla, the defence case must necessarily fail. For the above reasons, it is my view that ground 5 fails. GROUND 6:(see page 10)

In my view, nothing turns much on the evidence that it was finally one Inua Sabala of Kangarna village who identifi1ed the body to P. W. 1 as that of the deceased Samber Sarkin Pawa who, without doubt, was the same Sambo Sarkin Power named in the information.

Apart from this man P.W. 2,P.W. 3 and P.W. 4 saw the body which was identified by the Ward Head (PW4)as the body of Sambo Salkin Pawa, now dead. I have no hesitation in saying that his corpse was positively identified as the body lying on the road, or that it was the same body that was taken to Yola Hospital by PW3. Inuwa Kachala (possibly Inua Sabala) who identified the body to PW 1. There is evidence that on 12/3/78, possibly sometime after 7 p.m. when Inuwa reported an incident at their village (Tugga) at the Police Station. PW2,PW3 and the inevitable Inuwa Kachalla proceeded to the Scene where they saw the body of the deceased, a left foot of a pair or rubber shoes and a knife. There are conflicting accounts when exactly the party first saw the body. Since there were no eye witnesses, it may never be known whether or not that knife they said they found was the murder weapon, though the dual possibility that it was either planted there or was otherwise the knife of the appellant. cannot he ruled out. Having considered all the evidence, I am of the view that this appeal. having principally succeeded on the vital point of the unproven confession, in view of the inconsistencies and contradictions in important particulars surrounding the alleged confession, it would be dangerous and unsafe to   convict the appellant, even under Section 224 of the Penal Code, where an available defence of self-defence was open to him. Regrettably, the learned trial Judge new off al a tangent on some of the issues where legal evidence may have sufficed. On an over view of all the facts. it call hardly he said that this Court has been too generous to the appellant because the learned Judge was obliged by law to look at all the surrounding circumstances of the confession to determine if that confession was satisfactorily proved, and if so, what weight to give to it, at the conclusion of the hearing. I am of the view that he fell short of the guideline laid down in 14 WACA 30 at 32 in PHILIP KANO AND ANOR. vs. THE KING where the observations of Rudley,J.REX vs. SYKES (1913) 8 C.A.R. 233 which I adopt, were cited with approval. In the event, this appeal succeeds on whole. His conviction and sentence by the lower court arc hereby set aside by me. In their place, I enter an order discharge and acquittal in favour of the appellant.

AGBAJE J.C.A. (Presiding): I have had the opportunity of reading in draft the lead judgment just read from my learned brother Macaulay, .JCA. I agree with him that the appellant's appeal should succeed. I propose however to make the following short contribution of my own.

In the case in hand, there was no eye witness account as to the incident which gave rise to the death of the deceased, save that of the appellant as contained in the statement he made to the police and in his statement to the Court during his trial. The appellant in the statement to the Police which the trial Judge described as a confessional statement gave his version of what happened on the fateful day. Before us, counsel for the state conceded it and I agree with him that what the trial Judge regarded as confessional statement was not, in fact, a confessional statement in that, in the said statement, the appellant did not admit the guilt of the offence with which he was charged.

It is pertinent to note that the trial Judge himself noted that the appellant in his statement to the Police raised a pica of self-defence. This is what the trial Judge said in his judgment in this regard:

"The accused stated in exhibit 1 that in his effort to avoid any confrontation with the deceased, he took refuge in a house nearby and that when he later emerged from the house, the deceased was still around awaiting for him. The accused had a duty to take P.W.2 to the said house in confirmation of his story. In fact, he had a duty to call all inmate of the house as a witness or anyone who saw him going into the house. The standard of proof expected from an accused where the fact to be proved is one especially within his knowledge may  not in my opinion he as high as that required of the prosecution to prove the guilt of the accused, but the explanation put forward by the accused must be a rational proof of that  fact which is within his knowledge. In short, the onus of proving private defence is upon the second accused and proof, in my opinion, goes beyond mere expressions. Section 65 of the Penal Code law provides that the defence of private defence is available to an accused person who causes death while repelling an attack which causes him reasonable apprehension of death of grievous hurt. To be accused in the defence of private defence it is my view that an accused has to satisfy the court by credible evidence that he was put in reasonable apprehension of death or grievous hurt by the act of the deceased.” (Italics mine)