UFOT GEORGE & SUNDAY STEPHEN ALIAS UDO OBOBO (APPELLANTS)
THE STATE (RESPONDENT)
(1971) All N.L.R. 207
Division: Federal Supreme Court
Date of Judgment: 28th May, 1971
Case Number: SUIT NO. S.C. 333/1970
Before: Lewis, Madarikan, Sowemimo, JJ.S.C.
Appeal from the High Court (South-East).
(1) The trial Judge was clearly in error in coming to the conclusion that there was an intent by the appellants, if not to cause the death of the deceased, to cause him grievous harm as these findings were unsupported by the evidence. The 2nd appellant ought to have been acquitted as the evidence did not reveal any common intent between both appellants nor that the 2nd appellant was in any way aware that the 1st appellant might stab the deceased when the 2nd appellant was holding the hands of the deceased.
(2) In order that injustice should not be done to the accused, the calling of a witness after the close of the defence must be exercised with caution and should normally be limited to matters raised for the first time by the defence. In the instant case, the recalling of P.W. 7 was clearly irregular.
(3) The irregularly received evidence that Michael Benson said he was not present could not have operated upon the mind of the trial Judge. Therefore no substantial miscarriage of justice had actually occurred, and this was a proper case to apply the proviso to Section 26(1) of the Supreme Court Act, 1960, which provides that the court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
Appeal of 1st Appellant dismissed: Appeal of 2nd Appellant allowed: Conviction of murder and sentence of death passed on 2nd Appellant quashed: Verdict of acquittal substituted.
Act referred to:
Supreme Court Act, 1960 s. 26(1).
Law referred to:
Criminal Code s. 319.
APPEAL from the High Court (South-East).
SUIT NO. S.C. 333/1970.
Akinrele for the Appellants.
Mbray-Bassy, (S.S.C.) for the Respondent.
Madarikan, J.S.C. (delivering the judgment of the court):-The appellants were charged with murder contrary to section 319 of the Criminal Code and were, on the 13th November, 1970, convicted by Ete J. in the High Court, Uyo (Charge No. HU/33C/70) and sentenced to death.
One of the eye-witnesses to the killing of the deceased was Sampson Akpan Aduep (P.W.2). He testified that after evening service on the 26th April, 1970, he was informed that two deserters from the "biafran" army were beating up someone; and that on approaching the scene, he saw the 2nd accused holding the hands of Udo Davis and the 1st accused piercing a knife through the abdomen of Udo Davis. Blood gushed out from the abdomen of Udo Davis and he fell down. The 2nd accused then ran away. After struggling with P.W.2 for a while, the 1st accused also succeeded in running away. As the victim, Udo Davis, was being carried in a big basket to the house of P.W.2, he died on the way.
Dr Cookey (P.W.1) who performed a post-mortem examination on the corpse of the deceased deposed that he saw a penetrating wound at the lower part of the abdomen of the deceased which punctured the colon thereby enabling faeces to escape from the colon to the abdominal cavity. This resulted in faecal peritonitis which, in his opinion, was the cause of death. He also stated that the wound could have been caused by a sharp instrument like a knife or dagger and that it could not have been self-inflicted.
In his statement to the police (exhibit B), the 1st accused stated than when he and the deceased were engaged in a scuffle, a knife dropped from the hand of one Michael Benson, and that as he and the deceased continued to struggle, he did not know how the knife managed to penetrate into the abdomen of the deceased. But in his evidence at the trial, the 1st accused gave a more detailed account of the events that led to the death of the deceased. He stated that:-
"We passed Michael Benson and his wife on the road. Then we met Udo Davis who was of the same extended family with Benson. He was on a sandy stretch of the road. Then we were about to pass him the bicycle wheels went deep into the sand and the bicycle wobbled and we were about to jam Udo Davis. He pushed us and we fell, 2nd accused got up and pointed his finger at Davis asking him why he did that. I called the 2nd accused to leave him adding that perhaps he was mental. Davis left 2nd accused and came up to me and asked my why I said he was mental. He met me and we started to fight. Michael Benson ran up and threw down his cap and the knife he borrowed from me-exhibit A. Michael Benson beat and kicked me. His wife held him saying he should not do so, adding that she thought he was going to separate us. She dragged him away. Then Udo Davis got on top of me as I lay face upwards. He picked up exhibit A and tried to stab me with it. I held it and we struggled for it. Somehow, I do not know how, the knife pierced his stomach during the struggle. I was still on the ground. It is not true that I stood and stabbed Davis as narrated by P.W.2 and P.W.3."
The defence of the 2nd accused was that he was present when the 1st accused and the deceased were fighting; that Michael Benson arrived at the scene and instead of separating them, he started to hit the 1st accused; that he (2nd accused) dragged Benson away and when he came back to the scene, he noticed that the deceased had been wounded.
In a reserved judgment, the learned trial Judge accepted the evidence of the prosecution witnesses, rejected the defence of both accused persons and convicted them as charged. This is an appeal against that judgment.
It is convenient to deal with the appeal of the 2nd appellant first. As stated earlier, the case for the prosecution was that it was the 1st appellant who stabbed the deceased. The only part taken by the 2nd appellant was that he held the hands of the deceased. Commenting on the evidence in this regard, the learned trial Judge said:-
"But the 2nd accused returned and re-joined the fight and then deliberately held the deceased's hands behind his back and the 1st accused deliberately plunged his dagger into his abdomen. It is clear then that their intent was, if not actually to cause the death of the deceased, to cause him some grievous harm, considering the nature of the weapon used."
We are in no doubt that the learned trial Judge was clearly in error in coming to the conclusion that there was an intent by the appellants, if not to cause the death of the deceased, to cause him grievous harm as these findings were unsupported by the evidence. Learned Counsel for the State asked us to infer a common intent to do grievous harm but we do not think that this is a proper course to adopt on the established facts. We are of the view that the 2nd appellant ought to have been acquitted as the evidence does not reveal any common intent between both appellants nor that the 2nd appellant was in any way aware that the 1st appellant might stab the deceased when the 2nd appellant was holding the hands of the deceased.
The appeal of 1st appellant revolves round the evidence of police constable Day Udo (P.W.7). In the course of his evidence, he stated that whilst investigating the case, has interviewed one Michael Benson. In re-examination, he was asked whether Benson made a statement to the police, and was about to tell the court what Benson had told him when Counsel for the appellants raised an objection on the ground that whatever Benson had told P.W.7 would be hearsay and that the proper way to let it in was to call Benson himself to testify. The court then gave the following ruling on the objection:-
"Ruling: I feel that it is not proper for this witness to give evidence of what Michael Benson said he saw and did. But since the defence seems to place great importance on what was the role of Michael Benson in the whole of this affair, I do not think it is think it is in the interest of justice to leave the question of Michael Benson's role in the air. I would like this man to be produced to throw light on this affair."
Thereafter, learned Counsel for the State closed the case for the prosecution after indicating that he did not propose to call Benson as a witness. Each of the appellants then gave evidence in his own defence and after closing the defence, the record reads as follows:-
"Court: P.W.7 recalled.
Court to P.W.7, when you interrogated Michael Benson did he say he was at the scene of the fight?
He said after entertaining the people, including the two accused, he saw the two accused on the road and that 1st accused was behaving in an unusual manner. He said he did not see the fight, but that when he got home he heard of the death of Udo Davis.
Court: This case is adjourned to 25th September, 1970 when the court will visit the locus in quo."
The evidence thus admitted was challenged before us on the ground that it was wrongly admitted. Counsel contended, and we agree with him, that the evidence ought not to have been admitted as it is hearsay evidence.
Counsel also contended that the judge erred in law in recalling P.W.7 after the defence had closed its case.
The power of the court to recall a witness is laid down in section 200 of the Criminal Procedure Act which provides as follows:-
"The court at any stage of any trial, inquiry or other proceedings under this Act may call any person as a witness or recall and re-examine any person already examined and the court shall examine or recall and re-examine any such person if his evidence appears to the court to be essential to the just decision of the case."
In order that injustice should not be done to the accused, the calling of a witness after the close of the defence must be exercised with caution and should normally be limited to matters raised for the first time by the defence. In the instant case, the recalling of P.W.7 was clearly irregular. The evidence given by him on being recalled was neither accepted nor relied upon by the learned trial Judge. Indeed we note that the learned trial Judge did find as a fact in his judgment that Michael Benson was present at the scene at the material time (and there was evidence before him on which he could so find), so clearly the irregularly received evidence that Michael Benson said he was not present could not have operated upon his mind. We hold therefore that no substantial miscarriage of justice had actually occurred, and consider that this is a proper case to apply the proviso to section 26(1) of the Supreme Court Act, 1960, which provides that the court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
In the result, the appeal of the 1st appellant fails and it is hereby dismissed; and the appeal of the 2nd appellant succeeds and it is hereby allowed. The conviction of murder and sentence of death passed on the 2nd appellant are quashed and we substitute therefore a verdict of acquittal.
Appeal of 1st Appellant dismissed: Appeal of 2nd Appellant allowed:
Conviction of murder and sentence of death passed on 2nd Appellant quashed:
Verdict of acquittal substituted