ALHAJI RAUPH O. GAJI (APPELLANT)
THE STATE (RESPONDENT)
(1975) All N.L.R. 268
Division: Supreme Court
Date of Judgment: 23rd May, 1975
Before: Coker, Ibekwe and Irikefe, JJ.S.C.
APPEAL from the High Court, Kaduna.
The appellant, a legal practitioner was tried in the Kaduna High Court and convicted of culpable homicide in causing the death of one Cordelia Ejiofor. At the trial, he did not testify himself, nor call witnesses as to his defence. Learned Counsel for the appellant established that some or all the prosecution witnesses made statements to the police before the application to the judge to institute criminal proceedings without the holding of a preliminary investigation.
The defence applied for the production of statements made to the police by prosecution witnesses but the applications were opposed by the prosecution contending that no foundation was laid for the compulsory production of those statements, furthermore their production is forbidden by the provisions of S. 122 Criminal Procedure Code.
The learned trial Judge refused the applications because S. 122 Criminal Procedure Code prohibits the production, but he did not deal with the objection as to the absence of foundation. On an appeal to the Supreme Court,
(1) that the trial Court has a discretionary power to order the production of any documents including such statement, if such production is necessary in the interest of justice, but it has not so ordered here and it is not a case in which the court should have so ordered.
(2) that where compulsory production is required S. 122 C.P.C. must be complied with, and the section contains conditions and circumstances under which such statements must be produced.
(3) that no foundation was laid for compelling the production of the statements as required under the Evidence Law, and trial Judge should have refused the applications on that ground.
(4) that the test of a fair trial must rest on the fair view of a dispassionate visitor to the court who had watched the entire proceedings, and it is impossible in this case to say that such a visitor would or could have taken the view that appellant's trial was anything but fair.
Cases referred to:
Alhaji Okabichi & ors v. The State (1975) 3 S.C. 135 at 150
Alhaji Ladan v. Police. (1970) N.N.L.R. 49
Saka Layonu & ors v. The State (1967) N.M.L.R. 411
The State v. Jimoh Sanni N.C.H./13c/72
Ashard Case (1963) N.N.L.R. 80
Regina v. Smith reported in London
Times Wednesday April 30, 1975
Statutes referred to:
Penal Code SS 220 (b), 221, 222, 225
Criminal Procedure Code, Cap 30, 1963 Laws of Northern Nigeria, SS. 122, 124, 144, 185 (b), 188 and 217
Judicial Offices and Appeals by Prosecutors Act 1963
Evidence Law Cap. 40 Laws of Northern Nigeria 1963, SS: 198, 209
Supreme Court Act 1960, S. 26 (1)
APPEAL from the High Court, Kaduna.
SUIT NO. S.C. 330/73
Chief G.K.J. Amachree (with him Mr C. N. Okoli) for the Appellant.
Alhaji M. Nassir Attorney-General North-Central State for the Respondent.
COKER J.S.C. (Delivering the Judgment of the court)-The present appellant, Alhaji Rauph Omobolaji Gaji, is a legal practitioner of many years standing and the appeal before us is sequel to the unfortunate circumstances which led to his trial and conviction by the High Court, Kaduna, on a charge of culpable homicide. Before the High court he had been charged as follows:-
"That you RAUPH OMOBOLAJI GAJI on or about the 3rd day of December, 1972, at Kaduna, in the North-Central Judicial Division did commit culpable homicide punishable with death in that you caused the death of Cordelia Ego Ejiofor by beating and kicking her with your fists and legs with the knowledge that her death would be the probable consequence of your act and thereby committed an offence punishable under section 221 of the Penal Code and triable by the High Court."
On arraignment before the learned trial Judge, he was asked to plead and the court so ordered. He refused to plead however and it is regrettable that learned Counsel appearing for him was responsible for advising him not to plead even though the court had so ordered him to plead. This episode is however of trifling importance and clearly has no significance on the case and trial of the appellant, for section 188 of the Criminal Procedure Code, cap. 30 (Laws of Northern Nigeria) provides as follows:-
"188. If the accused pleads not guilty or makes no plea or refuses to plead or if the judge enters a plea of not guilty on behalf of the accused, the court shall proceed to try the case."
The section obviously takes the position in hand for in the events that happened, the court proceeded to try the case of the appellant. Learned Senior State Counsel, who appeared for the prosecution, then began to open his case in the usual way when learned Counsel for the appellant observed:-
"AMACHREE: We will challenge the statements of Gladys Wey, Friday Igwegbu, Solomon Iyedoh, Isaac Oshonoike, any statement made to police by the accused, so state Counsel should not refer to their evidence in his opening address."
We shall refer later on in this judgment to this objection of learned Counsel for the appellant for the case of the appellant himself evinced only precious little of its facts and the defence in substance is massively built around the aforesaid objection of learned Counsel.
Evidence was called by the prosecution, which the learned trial Judge accepted, that on the 3rd day of December, 1972, at his residence in Kaduna, the appellant did beat up one Miss Cordelia Ego Ejiofor so severely that she eventually died thereof; that thereafter the appellant threw her corpse into the side of the road some ten miles away from Kaduna on the Kachia Road where pieces of the remains were subsequently discovered and retrieved by the police and that indeed it was the appellant himself who had taken the police to the spot where the remains of Miss Ejiofor were unearthed. The evidence was all one way as the appellant gave no evidence at all nor called any witnesses of his own. Seventeen witnesses were called by the prosecution and at the end of the case for the prosecution, the learned trial Judge made the following notes:-
"Nasir A. G.: That is the case for the prosecution.
Court: Has the defence any witness other than the accused person or a witness to character only?
Amachree: No, I am not making a no-case submission, but we will rest our case on the prosecution evidence.
Court: Explains section 236 (1) C.P.C. explained to accused.
Accused: I do not wish to give evidence."
Learned Counsel on both sides then addressed the court at length and the learned trial Judge reserved judgment to a named date.
The learned trial Judge eventually in the course of a reserved judgment extensively reviewed the facts of the case including the evidence of the star witness, one Mrs Gladys Ibidun Wey, a client of the appellant who had the misfortune of being in his residence at the time when all these events happened. She had testified to the traumatic beating given Cordelia by the appellant and also the decision of the appellant to take her out for medical attention on account of her physical condition after the beating. She had testified, inter alia, as follows:-
"I came out from the room again. This girl was still like that in that condition. Then Gaji said 'Ah ! Mrs Wey, I think I had better take her to the hospital'. The girl was so bad she could not get up. I helped Gaji get her into the car which was just outside the gate of the sitting room. I also entered the car and held the girl on the back seat. As we were going, Gaji said he was going to Kakuri Hospital. As we were going he stopped the car near a place with many lights and got out. When he came back I said, 'Gaji, this girl has died'. He said, 'Ha-a' and jumped inside the car and said, 'Mrs Wey, I will take you back home. I will take you back home'. He turned the car, but we did not reach the house. He dropped me at Queen's Club near Abuja Street. Then he turned the car full speed to where we had been coming. I found his house and sat in my room and slept."
As it were, the body of Cordelia was never found intact, although some human remains dug out the of the bush along the Kachia Road were suspected to be her own. Concerning this point, the learned trial Judge had observed in the course of his judgment thus:-
"This is a case in which there is no corpus delicti. Cordelia has disappeared. Some human remains have been found which might or might not have been hers. There can in the circumstances be no post mortem report. The circumstances that she was brutally beaten up and that she is now nowhere to be found suggest strongly that she is dead. Mrs Wey said that she died in her arms. Mrs Wey has had experience in hospital of people dying. She is more able than most to know when a person is dead. It is significant that accused's actions which I shall shortly related showed that he agreed with Mrs Wey. There is no doubt in my mind that Mrs Wey was right and that Cordelia was dead. Thus, I have no doubt that she died from the beating which the accused gave her. There is no evidence that Cordelia was ill or had any physical abnormality which would have caused her death apart from the beating.
It would be both perverse and illogical not to hold that she died from the beating."
The learned trial Judge then dealt with the evidence concerning the disposal of the body of Cordelia and the eventual exhumation of human remains. He was at pains to consider the genesis of the report about the spot where the corpse was jettisoned and on this he remarked:-
"There has been evidence that it was the accused who took the police to that spot. This evidence is vague and unconfirmed and not sufficient weight. If it were true it would strengthen the case of the prosecution in a different way and would prove at least the truth of the content of Mrs Wey's report about the disposal of the body. If it is true then the police must have acted entirely on the information given them by Mrs Wey and this shows that she did in fact give them this information. Since she did go I believe it to be correct information. I cannot think that Mrs Wey made it up. Whether that is in fact what the accused did with the body, I do not know for certain. It is probable. He did dispose of it, but it may have been elsewhere. There is other evidence of the finding of the human remains by P.W. 9 and P.W.10."
The learned trial Judge considered the statements of the appellant which had been admitted in evidence, i.e. Exhibits 2, 7 and 8, and pointed out that they were parsimonious of any facts which would help the case one way or the other but, without equivocation, he found and decided that it was the act of the appellant that caused the death of the girl Cordelia. He observed thus on this issue:-
"I find it proved that the accused brutally and mercilessly and in a fit of what must have been a complete loss of temper, beat Cordelia Ejiofor and that she died from that beating. It remains for me to consider whether the nature of the beating was such that her death was probable rather than merely likely and whether given the background and intelligence of the accused he must be taken to have known that her death would be the probable consequence of his act. I have not yet had recourse to any case law. I do not think any was necessary. It is trite law that on a charge such as this death must be proved and also it must be proved that the act of the accused caused the death. It is both good law and common sense that while expert medical evidence is the best evidence as to the fact and the cause of death, it is not essential."
But the learned trial Judge was not oblivious of the heavy onus on the prosecution of proving the charge laid as it was under the provisions of section 221 of the Penal Code. That was still there to be considered and following the charge against the appellant, the learned trial Judge had to decide whether what he found and described as the "violence and mercilessness of the assault and its continuance for a long time" was intended to kill Cordelia or merely to beat her into a state of unconsciousness without thinking or recklessly uncaring that death would probably result therefrom. If the intention was always to kill her the offence would without doubt be culpable homicide punishable with death under section 221 of the Penal Code. Otherwise, it is not and the provisions of section 217 of the Criminal Procedure Code empower the learned trial Judge to convict of the offence proved even if not charged provided the facts of the case found justified a charge of that offence. See the observations of this Court in Alhaji Okabichi & ors. v. The State (1975) 3 S.C. 135 at page 150 et seq. In concluding his judgment in the present case, the learned trial Judge directed himself thus:-
"In short, I have to decide that I agree with Chief Amachree that I cannot be certain with the degree of certainty demanded by a criminal charge of such seriousness either that death was the probable result of this beating or that the accused had reason to know it to be probable. On the other hand, that it was likely there can be no doubt at all. It is not proved or charged that accused intended death. None of the subsections of section 222 Penal Code apply, but the offence proved is greater than that in section 225 Penal Code because death was a likely consequence of accused's acts and in all the circumstances I cannot doubt that a man of accused's intellect and background must have known it. I find the accused not guilty of the offence charged but guilty of the offence of culpable homicide under section 220 (b) Penal Code punishable under section 224 Penal Code."
Thus, the learned trial Judge convicted the appellant of an offence under section 220 (b) of the Penal Code and made it clear that he had already taken into consideration the provisions of section 222 of the Penal code and excluded the involvement of section 225 of the same Code and sentenced the appellant to 12 years imprisonment.
This appeal is from that conviction. We point out that the learned Attorney-General had himself filed a Notice of Appeal intending to contend that on the findings of fact of the learned trial Judge in this case and the law applicable, a conviction under section 221 of the Penal Code was inescapable and that that should be substituted for the verdict of the court. The appeal of the learned Attorney-General was however struck out as it was filed some 28 or 29 days after the conviction and in disregard of the provisions of section 4 of the Judicial, etc., Offices and Appeals by prosecutors Act 1963, No. 10 of 1963, which prescribes as follows:-
"4 (1) Where an appeal to the Supreme Court from a decision of the High Court of a territory sitting at first instance is brought in any criminal proceedings by any person or authority (other than the accused person) in pursuance of the provisions of section one hundred and ten of the Constitution of the Federation and of any relevant law of that territory, the Supreme Court shall, as it considers just, either-
(a) dismiss the appeal; or
(b) remit the case to the High Court with a direction to decide the case in accordance with the ruling of the Supreme Court on the questions involved in the grounds of the appeal; or
(c) quash the decision and either-
(i) order a new trial of the case by the High Court; or
(ii) itself determine the case;
and for the purposes of sub-paragraph (ii) above the Supreme Court may exercise, in addition to any powers exercisable by that court apart from this section, any of the powers of the High Court from which the appeal was brought.
(3) The period within which notice of appeal or of an application for leave to appeal to the Supreme Court must be given by a person or authority other than the accused person in a case which involves or could involve sentence of death or a verdict of guilty of manslaughter or culpable homicide shall be seven days from the date of the decision in question and the Supreme Court shall not have power to extend that period."
Before us, it was argued on behalf of the appellant, and as we pointed out before, that the appellant was denied a fair trial in that he was not supplied with proofs of the evidence proposed to be given by the prosecution witnesses nor were those statements made available to him at the trial for the purpose of challenging the veracity of the prosecution witnesses. The learned Attorney-General countered these arguments, and whilst conceding that the statements were not produced at the times stated, he submitted that they were refused because no foundation was laid, as it should be laid, for ordering their production.
There was no preliminary investigation pursuant to the provisions of Chapter XVII of the Criminal Procedure Code before the trial of the appellant in the High Court and the prosecution was initiated in accordance with the provisions of section 185 (b) of the Criminal Procedure Code which prescribe thus:-
"185. No person shall be tried by the High Court unless-
(b) a charge is preferred against him without the holding of a preliminary inquiry by leave of a judge of the High Court; or
It was not argued before us that in seeking the leave of the judge as stated the appellant should be put on notice and therefore there cannot be any force in any argument that that should have been the case and that at that stage the appellant should be supplied with the proofs of the evidence to be given by the witnesses. We observe that when he was apprised of the proceedings to obtain the leave of the judge to his summary prosecution, the appellant filed a motion before the High Court for-
"(1) Order that the defendant be supplied with the proofs of statements of the witnesses shown on the list marked as Exhibit attached to the application of I.A. Salami, Esq., of State Counsel, Grade 1 at the instance of the complainant and dated 7th July, 1973, which application to prefer a charge without holding a preliminary enquiry was granted by the Honourable Court on 14th July, 1973.
(2) For order that the defendant be given whilst in custody all constitutional rights and privileges of an accused persons."
The motion was dismissed and, as pointed out, the appellant was thereafter charged and tried by the High Court.
The argument of learned Counsel for the appellant involves a point of law of considerable importance in an appropriate case but of little or no effect on the fortunes of the appellant in the present case. We are satisfied ourselves that numbers of times learned Counsel for the appellant asked for the production of statements made by the witness or witnesses of the prosecution to the police but the prosecution would not produce them and the learned trial Judge would not order their production. We therefore asked learned Counsel for the appellant to choose a specific instance and base his argument on that. Learned Counsel for the appellant referred us to the evidence of Mr Peter Odidi (3rd P.W.) in the course of which he asked for the statement of the witness in order to cross-examine him with it. The witness was being cross-examined by learned Counsel for the appellant and had only just admitted that he made two statements to the police. Then followed what the learned trial Judge had recorded as follows:-
"Amachree: I ask for those statements.
Salami S.S.C.: I object to producing them. Defence not entitled to any matter in the case diary: Section 122 C.P.C. No foundation.
Alhaji Ladan vs. C. of P.502 CA/70 (Court-It is in 1970 NNLR).
Amachree: How can we conduct our case without them? Why would such a clear witness make two statements to police?
Court: Under section 122 C.P.C. the accused or his agent shall not be permitted to call for and inspect any part of the case diary except in certain circumstances. The statements in writing to police by witnesses are part of the case diary: Section 121 (g) C.P.C. The circumstances in which this mandatory prohibition is lifted are two:
(a) where such statement is admitted in evidence. (This present tense must in my view be the historic present, or the section 122(2) (a) does not make sense to me) or
(b) where a police witness has used such statement to refresh his memory.
Neither of these circumstances obtain here. The confirmation by the appeal court of the magistrate's refusal to allow the accused to see the statement to police of a witness is the similar circumstances in Alhaji Ladan v. C. of P. which is in 1970 NNLR shortly to be published confirm me in this view. If 'is admitted' could be read as 'is admissible' then there is still no basis in the present case for ordering the production of these written statements. The Supreme Court case of Saka Layonu (1967) NMLR 411 expresses a different view, but that was governed by the Criminal Procedure Act. I am bound by the Criminal Procedure Code, whose provisions on this point are quite different. The application is refused."
Thus, the learned Senior State Counsel had objected to the production of these statements, firstly, on the ground that section 122 of the Criminal Procedure Code does not permit the production and, secondly, on the ground that no foundation had been laid for ordering the production of these statements. The learned trial Judge refused the application of Counsel basing his refusal on his interpretation of section 122 of the Criminal Procedure Code. He did not refer to the other arm of the objection of the learned Senior State Counsel, i.e. that no foundation was laid for ordering the production of these statements and it is unfortunate that he did not do so. We say it is unfortunate because in this particular respect it is of the utmost necessity that some foundation be laid for requiring for the statement of a witness to cross-examine that witness and unless such a foundation is laid it is impossible to obtain an order for the production of his statement, Sections 198 and 209 of the Evidence Law, cap. 40, Laws of Northern Nigeria 1963 are directly relevant and they provide as follows:-
"198. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
209. The credit of a witness may be impeached in the following ways by any party other than the party calling him or with the consent of the court by the party who calls him-
(a) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;
(b) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;
(c) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted."
Manifestly, the sections enable the cross-examination of a witness by a previous statement made by him in writing but prescribe and they do require that before the statement is put to the witness "his attention... must be called to those parts of it which are to be used for the purpose of contradicting him." It is fair to observe that in the present proceedings although instances abound where the previous statements in writing of witnesses had been demanded by learned Counsel for the appellant, the pattern had always been the same and in no instance had reference been made to any part or parts of the relevant statements with which it was proposed to contradict the witness or even suggested that his statement was otherwise different from his evidence in court. The difficulty of learned Counsel is apparent but it is hardly necessary to observe that no court would lend itself to any form of fishing for evidence and as such foundation must be laid, as it clearly was not laid in the several instances herein, it is pretty wishful to expect an order for the production of the statements in those circumstances. We observe that the learned trial Judge did not rule on the objection of the learned Senior State Counsel to the absence of any foundation for calling for the production of the statements of these witnesses. We have looked at the relevant portions of the proceedings ourselves and we entertain no doubt that as the records stand, the learned trial Judge could not have done otherwise if he had considered the matter from this other angle than to rule that no foundation was indeed laid and, on this score, to refuse to order the production of the relevant statements.
The learned trial Judge however based his ruling on the provisions of section 122 of the Criminal Procedure Code. That section provides as follows:-
"122 (1) Nothing in any way included in or forming part of a case diary shall be admissible in evidence in any inquiry or trial unless it is admissible under the provisions of the Evidence Law or of this Criminal Procedure Code or of rules made thereunder, but-
(a) a court may if it shall think fit order the production of the case diary for its inspection under the provisions of section 144;
(b) the Attorney-General may at any time order the submission of the case diary himself;
(c) any relevant part of the case diary may be used by a police officer who made the same to refresh his memory is called as a witness.
(2) Save to the extent that-
(a) anything in any way included in or forming a part of a case diary is admitted in evidence in any inquiry or trial in pursuance of the provisions of subsection (1); or
(b) the case diary is used for the purposes set out in paragraph (c) of subsection (1),
the accused or his agent shall not be permitted to call for or inspect such case diary or any part thereof but, where for the purposes of paragraph (a) or (b) any such inspection is permitted, such inspection shall be limited to the part of the case diary referred to in paragraph (a) or (b) as the case may be."
Undoubtedly, the section precludes the admission in evidence of anything "in any way included in or forming part of a case diary" unless the production be sought in the cases set out in the section. In the course of his Ruling on this point, the learned trial Judge, rightly in our view, pointed out that the written statements made by witnesses to the police were part of the case diary; truly, by the provisions of section 121 of the Criminal Procedure Code, they are indeed parts of the case diary. We are of course unable to appreciate the meaning or indeed the logic of what the learned trial Judge concluded to be the circumstances "in which this mandatory prohibition is lifted." The provisions of subsections (a), (b) and (c) of this section, i.e. section 122, do not constitute circumstances of lifting a prohibition since they do not in any case confer any advantage on the defence subject however to the nature of any orders which a court may make pursuant to the provisions of section 144 of the Criminal procedure Code. The inhibitions which subsections (a), (b) and (c) of section 122 (1) carry, are clearly confirmed by section 122(2).
We are not in any doubt that the cases in which section 122 prescribes for the lifting of a prohibition from production of witnesses statements are two as follows:-
(i) where such a statement is admissible under the provisions of the Evidence Law; and
(ii) where the statement is admissible under the provisions of the Criminal Procedure Code or Rules made thereunder.
Earlier on in this judgment, we had set out the provisions of sections 198 and 209 of the Evidence Law The sections make admissible, and a fortiori compel, the production of a written statement made by a witness for the purpose of cross-examining such a witness on the contents thereof provided the requirements of the sections are first of all complied with. We pointed out that in this particular case there was no compliance with the peremptory requirements of those sections. In the course of his ruling in the present case, the learned trial Judge referred to the judgment of this Court in Saka Layonu v. The State (1967) N.M.L.R. 411, and in distinguishing that case, remarked that it was governed by the Criminal Procedure Act whereas he was bound by the Criminal Procedure Code. We cannot agree less with the learned trial Judge. His ruling is erroneous in law, firstly, because he assumed in error that Layonu's case, supra, was based on the Criminal Procedure Act when it is not and, secondly, because if he had correctly relied on the Criminal Procedure Code, he would have found the circumstances of exception not just merely adumbrated but clearly expressed in the contents of section 122(1) of the same Criminal Procedure Code. In Layonu's case, supra, at page 413 this Court stated the legal position thus:-
"Such a statement is not evidence of the facts contained in it and the only use to which the defence can put it is to cross-examine the witness on it and then if it is intended to impeach his credit, to put the statement in evidence for that sole purpose: Evidence Act, ss. 198 and 209. The defendant, or his Counsel, has no means of knowing whether the statement can be put to this use until he has seen it. Prosecuting Counsel, whose traditional duty is not to secure a conviction but to see that justice is done, should make whatever order may appear necessary to enable him to put forward any defence that may be open to him."
Manifestly, the Supreme Court in this case did consider the implications of the relevant sections of the Evidence Act. These sections of course correspond with the present sections 192 and 209 of the Evidence Law and indeed the Supreme Court clearly spot-lighted the inadequacies of those sections of the Evidence Law and the difficulties which must logically follow from an adherence to the provisions of those sections. The Supreme Court then observed that in those circumstances the traditional duties of learned Counsel should be brought to bear upon the lapses so as to ensure that justice is not only done but also seen to have been done. Here again, the Supreme Court left the order or orders to be made in those circumstances in the hands of the court and it will be unwise to hold back the hands of the court from ordering the production of written pre-trial statements where the only way of ensuring that justice is done and seen to be done is to order such production. We think a great deal depends upon the trial Court and the circumstances of the case. We are of course not presented here with any argument depicting any special circumstances but do not overlook the possibility of such circumstances presenting themselves in a proper case.
The learned trial Judge further, and in the course of his judgment, referred again to these same points. He stated as follows:-
"Two important points have arisen during this trial.
One is the behaviour of the police especially Special Branch and the other is the effect of section 122 of the Criminal Procedure Code. Chief Amachree for defendant has raised both points in his summing up but I do not intend to deal with either in this judgment except to say that with regard to the police I shall send a copy of the record to the Federal Attorney-General. Regards section 122 of C.P.C., I would add to my ruling of the 3rd October, 1973, with great respect, I decline to follow the unreported case of State v. Jimoh Sanni NCH/13c/72 because the amendment to section 122 C.P.C. by Northern Nigeria Legal Notice No.2 of 1964 following the Ashard case (1963) NNLR 80 while it enlarged the use of the case diary by the prosecution under subsection (1) had no direct effect whatever upon subsection (2) which will absolutely prohibit the accused or his agent from calling for or inspecting and therefore from using the case diary except as provided in subsection 2(a) and (b) which entirely depend upon the use the prosecution chooses to make of it or of any part of it."
Here again, the learned trial Judge seemed to take the view that section 122(2) had taken away everything that subsection (1) of the section had given to the defence. That decision however, and clearly, overlooks the phraseology adopted in subsection (2) and that in any case the further circumstances of prohibition, postulated by the latter subsection, are seriously made to be subject to the exceptions created by the former subsection. In the course of the argument on appeal before us, our attention was drawn by learned Counsel for the appellant, to the same decision of Bello, S.P.J (High Court, Kaduna) in the State v. Jimoh Sanni N.C.H./13C/72 (unreported but delivered on the 5th February, 1973)-to which the learned trial Judge in the present case had himself referred but with which he disagreed-and where after considering the implications of section 122 of the Criminal Procedure Code the learned S.P.J. ruled thus:-
The prohibition from inspection of the case diary by an accused person or his Counsel is subject to not only the conditions laid down by the section but also the Evidence Law. It is conceded that both PW7 and PW8 made statements which formed part of the case diary. Both have already given evidence at this trial. It must be presumed therefore that the contents of their statements have been admitted in evidence by their oral evidence. The defence Counsel is therefore entitled to inspect their statements with a view to cross-examining the witnesses in accordance with sections 198 and 209 (c) of the Evidence Law.
I hold that s. 122 of the C.P.C. does not alter the long established practice in this regard."
We note this decision with approval and take the view that in the present case the learned trial Judge had wrongly taken an unjustifiably narrow view of the provisions of the section.
It is unnecessary to re-state the legal position for the unambiguous provisions of the section do not call for it and it is well worth bearing in mind at all times that section 122(1) of the Criminal Procedure Code prohibits the production in evidence of the contents of a case diary but permits the production of written statements where the Evidence Law authorises such production and where by the provisions of the Criminal Procedure Code or Rules made thereunder the production of such a statement is dictated or sanctioned. With respect to the provisions of sections 198 and 209 of the Evidence Law, it is easy to see that the statements that would have been produced would be those of witnesses who are testifying and who do testify but in other cases falling within the provisions of the Criminal Procedure Code, it is not incorrect to imagine a case under section 144 of the Criminal Procedure Code where the statement ordered to be produced may even be that of a person who is not a witness who had given or would give, or is giving, evidence.
We conclude therefore that the learned trial Judge was wrong in refusing the production of the written statements of witnesses on the ground on which he had over-ruled the submissions of learned Counsel for the defence; but that if he had considered the other submission of learned Senior State Counsel for the prosecution against the production of these statements, he would nevertheless and undoubtedly have decided rightly on the grounds of absence of foundation that the statements are not admissible and their production could not be compelled. This was in fact the submission of the learned Attorney-General and we accept it.
Next, it was argued for the appellant that his trial did not exemplify the well-known principle of our jurisprudence that justice must not only be done but it must be seen to have been done. We observe that at the end of the trial and in the course of the allocutus the appellant himself when he was granted leave to address the court, stated "I thank the court for a fair trial, I ask for leniency",. He is a lawyer of considerable experience and understanding and one would have thought he indeed appreciated the real import of his own pronouncements.
But learned Counsel for the appellant argued before us that justice must also be seen to have been done and that in the present case this was not so. Learned Counsel instanced the failure to serve the appellant with copies of the depositions of the prosecution witnesses since there was no preliminary investigation preceding his committal for trial at the High Court. We have already dealt with this issue and we are of the view that although it would be far more desirable that judges who exercise the powers of granting leave under the provisions of section 185 (b) of the Criminal Procedure Code should ask for and insist on seeing the proofs of evidence which it is intended to urge in support of the prosecution, it is not open at that stage to an accused person to be invited into the scene and moreover to be supplied with copies of the statements of potential witnesses. In the case in hand, it does not appear that the learned trial Judge who granted leave for the summary prosecution of the appellant, under section 185 (b) of the Criminal Procedure Code, ever was supplied with or requested the proofs of, the statements of the witnesses. The whole story was contained and told in the affidavit of the Senior State Counsel-a state of affairs in which the probative value of hearsay evidence had been escalated beyond comprehension.
Be that as it may, learned Counsel for the appellant complained as well that all the witnesses who should give evidence favourable to the appellant had been beaten, threatened or otherwise molested by the police before they made their respective statements. There is of course some evidence of improper treatment of some witnesses. This was made a point by the defence and the learned trial Judge in the course of his judgment observed as follows in this respect:-
"Chief Amachree has submitted that most of the prosecution evidence is inadmissible because of the use of duress towards a number of witnesses by the police, contrary to section 124 of the Criminal Procedure Code. These witnesses who said they have been maltreated by the police were P.W. 6, Mrs Wey.; P.W. 7, Mr Iyedoh; P.W. 8, Friday Igwegbu; P.W. 9, Bagudu Jarmai; and P.W. 10, Yohana Bawa. I am not sure of the full effect of section 124 but I am satisfied that the evidence given in this trial by these witnesses was given voluntarily and not under the influence of any illegal treatment to which they allege they were subjected by the police investigating this case. Their evidence is therefore admissible."
It is in the circumstances necessary to distinguish between a statement obtained from a witness by force or duress and a statement obtained from an accused person in similar circumstances. In the present case, and in the course of the "trial within trial", the learned trial Judge ruled that some of the statements obtained from the appellant were not voluntary and not voluntarily made and indeed had been obtained by duress an rejected them in evidence. This was big slap on the face of the prosecution and whoever was responsible for this should be thoroughly ashamed of himself; at the very least he must consider himself a disgrace to the Nigeria Police. The learned trial Judge properly visited the situation with the remedy it deserved. He rejected the statements. It is however otherwise with statements obtained by the police from witnesses or prospective witnesses. Although there is, as the learned trial Judge himself observed, evidence of ill-treatment by the police to the witnesses who were prone to side up with the appellant, no efforts were made at the trial by the defence to ascertain or demonstrate to the court the purpose of such exercise. Were they ill-treated because they would not speak at all, or because they would not speak the truth? Under our law, these witnesses are entitled to sue or to causes of action against those who assaulted them and no court, let alone the Supreme Court, would condone such irresponsible and illegal acts for whatever purpose and whatever motive it was aimed at and, if it was established that the statements made by these witnesses and consequently the evidence they gave were the only result of the illegal treatment by the police, the courts would do well to reject both in their entireties. But, in the present case, none of those witnesses testified that he said what he told the court because he was tortured into saying so and it is impossible for this Court to conclude that this was the position. The learned trial Judge who heard the case observed that he was "satisfied that the evidence given in this trial by these witnesses was given voluntarily and not under the influence of any illegal treatment to which they alleged they were subjected by the police investigating this case." Far from attempting to resile from their statements to the police or the evidence which they had given in-chief, these witnesses swore to the truth of their several testimonies and resisted any suggestions of impropriety with respect to the contents of their evidence. On this basis, the contention of learned Counsel for the appellant is extremely weakened and the court is left with no materials on which to found a stern legal indignation which would otherwise be called for. On this point, the learned Attorney-General submitted that the evidence of duress should not have been believed, the more so as it was not proved that any of these witnesses spoke untruths. He also contended that inasmuch as the learned trial Judge found that the witnesses spoke the truth, the Court of Appeal should not intervene. We do not consider this argument sound and we have no doubt whatsoever that in a proper case it would be the duty of this Court, and indeed of any Appeal Court, to ventilate sternly its odium against any illegal method of obtaining evidence, especially evidence which would have been otherwise, if not procured as a consequence of the illegalities.
Lastly, learned Counsel for the appellant contended that taking all the lapses in the prosecution together, the court should hold that the trial of the appellant had not been fair and that it could not be said of it that justice had been seen to have been done. Learned Counsel for the appellant referred us to the recent case of Regina v. Smith (reported in the London Times of Wednesday, April 30th, 1975) where the Court of Appeal set aside a conviction for assault after taking evidence and ascertaining that a pupil-Counsel, who had had access to the whole of the appellant's case as well as the prosecution case, had sat in court in robes behind the prosecutor during the trial, contrary to the previous assurances given by the prosecution that the pupil-Counsel would take no part in the prosecution of the appellant.
We are of course not oblivious of the rules of principle involved and the case of Regina v. Smith is no less an authority on the principles of intervention on the grounds that justice must not only be done it must also be seen to have been done. Clearly, the test of justice being seen to be done rests on the view of an independent and impartial observer sitting in court and listening dispassionately to the entire proceedings. On this hypothesis we must ask ourselves whether such an impartial observer sitting in court and listening to the present proceedings in the case before us would feel in those circumstances, related by the learned Counsel for the appellant, there had been a perversion or miscarriage of justice. We think not. The prosecution witnesses told the truth. The learned trial Judge who saw and heard them said this and we are ourselves satisfied that the experience and pungent scrutiny of learned Counsel for the appellant could produce no untoward exposures. We are unable to hold that in the case of the present appellant justice had not been seen to have been done.
In the course of his argument on this point, learned Attorney-General had urged on us that having regard to the facts that the witnesses for the prosecution spoke the truth, the savagely primitive way in which the girl Cordelia had been boxed to death and the downright absence on the record of any unjustifiable result of the complaints of the appellant, this Court should consider employing the provisions of the proviso to section 26 (1) of the Supreme Court Act. We would of course be willing in a proper case to take the course suggested by the learned Attorney-
General especially considering the nature of the offence and the course the conviction eventually took as well as an overall examination of all the issues involved. But, as we pointed out before, we are not in agreement of anything near injustice had occurred in the trial of the appellant and so cannot accede to this ground of appeal.
The result is that all the grounds urged in this appeal on behalf of the appellant fail and the appeal must also fail. The appeal is dismissed and the conviction of the appellant and the sentence imposed upon him are affirmed.