“Defence cannot dictate to Prosecution on number of witnesses”

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ADDO V. THE STATE

IN THE COURT OF APPEAL OF NIGERIA

ON THURSDAY, THE 7TH DAY OF JANUARY, 2016

CA/AK/146C/2013

LN-e-LR/2016/2 (CA)

OTHER CITATIONS

(2016) LPELR-40140(CA)

BEFORE THEIR LORDSHIPS

MOJEED ADEKUNLE OWOADE, J.C.A

MOHAMMED AMBI-USI DANJUMA, J.C.A

JAMES SHEHU ABIRIYI, J.C.A

BETWEEN

SAMUEL ADDO – Appellant(s)

AND

THE STATE – Respondent(s)

REPRESENTATION

R. A. Aladesanmi with him, A. Deniran – For Appellant

AND

E. Kolade-Oba (Principal Legal Officer, Ondo State) – For
Respondent

MAIN JUDGMENT

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading
Judgment):

This is an appeal from the decision of Honourable Justice O. O.
Akeredolu of the High Court of Ondo State sitting at Ondo on the
26th day of September, 2012.

The appellant was arraigned on a lone count of murder contrary
to Section 319 of the Criminal Code, Cap. 30. Vol. II, Laws of Ondo
State of Nigeria 1978.

The appellant pleaded not guilty. The prosecution’s case was/is
that one Pastor Ezekiel Ayoade and Adediwura Afolabi the deceased
persons were on the 2nd November, 2009 killed by the appellant at
the church where the first deceased pastored and held meetings on
the 1st day of every month. The meeting used to hold at Oke Igbala
Ondo (also known as Oke Pele, Ondo).

On the said date, the appellant who is a member of the church
was on the hill top church referred to as “Ori Oke Pele” to attend
the monthly services but when he got there, he discovered that his
things had been tampered with, he got infuriated and when he
challenged the pastor, the pastor threw a bell at him and also
whipped him with a cane which got him all the more provoked and as
a result he used the bell to beat the pastor to death.

When he realized that the old woman, Adediwura Afolabi who was
partially paralyzed and laid in a corner of the church saw what he
had done, and because she threw stones at him, he hit her with a
stone till she died. He (appellant) had been attending the church
for a while and at that point was feeling cheated because he
believed that the Pastor has exchanged his “glory” even though he
had rendered help to the Pastor and had also warned him to let him
go.

The appellant’s defence was that he only remembered that on the
1st day of November, 2009, he climbed the Ori-Oke Pele to church
where he went to pray but nothing happened between him and the
deceased and that he only got to the prison before he knew where he
was.

At the end of the trial, the learned trial judge found the
appellant guilty as charged on the lone count and sentenced him to
death.

Dissatisfied with his conviction and sentence, the appellant at
first filed a Notice of Appeal on 31/10/2012. On 7/4/2014, the
appellant filed an Amended Notice of Appeal (containing six (6)
grounds of appeal). The Amended Notice of Appeal was deemed filed
on 18/11/2012.

Appellant’s brief of argument dated 6/3/2014 and filed on
7/4/2014 was deemed filed on 18/11/2014.

Respondent brief of argument dated 6/5/2015 and filed on
13/5/2015 was deemed filed on 16/6/2015.

Learned counsel for the appellant nominated two (2) issues for
determination. They are:

i. Whether the prosecution established the fact that the two
persons on the information sheet were actually deceased and that
the act(s) of the appellant was the cause of their respective
deaths

ii. Whether the prosecution proved its case against the
appellant beyond reasonable doubt.

Learned counsel for the respondent adopted the issues formulated
by the appellant.

On issue 1, appellant’s counsel submitted that a perusal of the
name of the 1st deceased – Pastor Ayoade Ezekiel, on the
information sheet shows that the retracted appellant’s
extra-judicial statements Exhibits A7 and A9 do not amount to
confessions to the crimes charged.

Appellant’s counsel submitted that the name mentioned by the
appellant in Exhibit A7 was Pastor Ezekiel Afolabi but that the
name on the charge sheet was Pastor Ezekiel Ayoade.

Also, that Exhibit A9 never stated the names of anyone that was
attacked, rather, it only stated that he hit the pastor on the head
and the pastor fell down and died. That the same Exhibit A9 in
respect of the 2nd deceased only stated “I went and meet one old
woman there too and she fell down and died too—”

He submitted in effect that Exhibit A9 could not be said to be
unequivocal.

Counsel further submitted that from the structure and grammar on
a comparison of Exhibits A7 and A9 both statements could not be
said to have been made by the same person, though both were
ascribed to the appellant.

Resolution of issues

The main complaints of the appellant in relation to issue 1
could be categorized as follows:

i. The fact that the appellant’s confessional statements
Exhibits A7 and A9 referred to the 1st deceased as Pastor Ezekiel
Afolabi but that the 1st deceased was described in the charge sheet
and evidence as Pastor Ezekiel Ayoade,

ii. That there was no witness that testified that he or she was
the one who identified any of the deceased persons to the
pathologist for the purpose of the autopsy to establish the cause
of death.

On (i) in relation to appellant’s issue 1, I do agree with the
learned counsel for the respondent that the fact that the charge
sheet described the 1st deceased as Pastor Ezekiel Ayoade and
appellant’s Exhibits A7 and A9 described the 1st deceased as Pastor
Ezekiel Afolabi is not material to the prosecution’s case. The
reason for this is that it is not in doubt that one male Pastor of
Ori-Oke mountain Pele of Ondo town was murdered and it is also not
in doubt that his first name was Ezekiel. It is also not challenged
or controverted that one woman Mrs. Adediwura Afolabi was murdered
immediately after the Pastor was murdered. In the circumstance
therefore, the mix up between the names of Pastor Ezekiel Ayoade
and Pastor Ezekiel Afolabi in Exhibits A7 and A8 in describing the
1st deceased Pastor Ezekiel could not be said to be material to the
prosecution/respondent’s case.

The Supreme Court in Atano v. State (2005) 4 ACLR Page 51 stated
thus:

“The contradictions referred to by counsel to the appellants in
the evidence of the prosecution witnesses are not such as will
raise any doubt as to the guilt of the Appellant and the trial
court was right in overlooking them.”

In the instant case, the seeming inconsistency in the names of
the 1st deceased is not material and does not raise any doubt as to
the guilt of the appellant.

On (ii) above, the courts have held that “—— medical evidence is
not essential in all cases to prove the cause of death —- in
examples where a person was attacked and he or she dies immediately
or so soon after the infliction of the injury on him or her,
medical evidence is not necessary to prove the cause of death. The
cause of death in that case is the injury inflicted on the pen on
and the accused who inflicted the injury is guilty of the offence
charged.”

See Oguntolu v. State (1996) 2 NWLR (Pt. 432) 503 at 535 and
536.

In the instant case, the prosecution tendered Exhibits A11 and
A11a as medical reports on the death of the 1st and 2nd deceased
persons, however, even in the absence of such medical reports, the
courts can still convict for the offence charged.

In answer to appellants Issue One, the prosecution in fact
established that the two persons on the information sheet were
actually deceased and that the act(s) of the appellant was the
cause of their respective deaths.

Issue 1 is resolved against the appellant.

In relation to Issue 2, appellant’s counsel emphasized that
there was no eye witness account of the murder of the deceased
persons. That there were contradictions in between the evidence of
PW2 and PW3 as to the recovery of the church bell the weapon of the
offence of murder. That the prosecution should have called as a
witness, the man who phoned the 1st deceased to come to Pele Hill
on the night of the incident, since he (the caller) would have been
the first suspect rather than the appellant. That the learned trial
judge was wrong to have discontinued the cross-examination of PW2
on the ground that the witness was not on trial and that “— — if,
however, the accused has rebuttal evidence he is at liberty to
produce it before the court. The application is misconceived, it is
hereby refused.”

Appellant’s counsel concluded on Issue 2 that the totality of
the case put forward by the prosecution amounted to suspicion which
he said cannot take the place of legal proof.

I do agree with the learned counsel for the respondent that the
court below relied on circumstantial evidence in view of the
absence of eye witnesses before the court. Also, the evidence of
PW1, PW2 and PW3 as well as all the Exhibits provided the material
from which the court drew the inference of guilt.

Clearly, the evidence of PW1, PW2 and PW3 together with the
extra judicial statements of the appellant established the guilt of
the appellant beyond reasonable doubt.

The evidence of PW2 and PW3 as to the recovery of the church
bell is not contradictory. This is because PW2 and PW3 worked
together in a team in the investigation of the murder charge
against the appellant and the evidence of PW2 tallies with that of
PW3 on the recovery of the church bell. The evidence of PW2 is not
inconsistent with that of PW3.

Furthermore, the evidence of PW2 and PW3 is corroborated by
Exhibits A7, A8, A9, A11 and A11a in respect of the murder of the
two deceased persons by the appellant.

Furthermore and contrary to the contention of the defence that
particular witnesses were not called, it has been established in a
long line of cases that the prosecution is not obliged to call a
host of witnesses in the presence of other overwhelming evidence
facing the accused person. In other words, it is the preserve of
the prosecution to decide the evidence useful for it and the
defence cannot dictate to the prosecution the number of persons to
be fielded as witness or witnesses.

See, Ijiefor v. The State (2001) 6 NSCQR 209; Mahmuda Buba v.
State (1994) 7 NWLR 195 at 203.

Still on issue 2, the Learned Trial Judge was right to have
rejected the appellant’s counsel oral application in the course of
cross-examination of PW2 that the witness should “—– write few
sentences on plain sheet of paper” whereby the trial court held at
page 50 of the record that:

“These provisions of the law given right to fair hearing to the
accused person. It does not make it obligatory on the court to ask
the investigating police officer who is not on trial to be asked to
prove that he recorded and signed a document which he said he
recorded and signed. The accused is entitled to call evidence to
controvert the evidence of the witness that he recorded and signed
the document if he has any. Principle of fair hearing gives the
accused room to be heard in his trial and to call witnesses if he
has any before his case is finally decided. I cannot see the
relevance of S. 36 (2) of the 1999 Constitution of the Federal
Republic of Nigeria to the application of the Counsel.

It is on record that the witness is one of the investigating
police officers that handled this case and he said he recorded the
statement in the course of investigation his act is presumed to be
regular if however the accused has rebutted (sic) rebuttal evidence
he is at liberty to produce it before the court.

The application is misconceived it is hereby refused.”

Truly, the learned trial judge was right in the above passage to
refuse the application of appellant’s counsel for PW2 to write for
comparison and/or examination. PW2 was not on trial and nothing in
the trial of the appellant warranted an opinion as to the
handwriting of PW2 as for example under the provision of Section 72
of the Evidence Act 2011.

Finally on Issue 2, the totality of the evidence led by the
prosecution in this case could not be described as evidence of
suspicion, the learned trial judge properly evaluated the evidence
including the appellant’s extra judicial statements Exhibits A7 and
A9 and adequately considered all the possible defences opened to
the accused/appellant including the defences of insanity and
provocation before convicting the appellant as charged.

Undoubtedly, the court can convict an accused person the moment
the prosecution proves its case beyond reasonable doubt.

See, Amusa v. State (2008) 8 NWLR (Pt.85) 395; Okoro v. State
(1988) 5 NWLR (Pt.94) 225 at 257.

In the instant case, the totality of the evidence adduced by the
prosecution proved the guilt of the appellant beyond reasonable
doubt.

Issue 2 is also resolved against the appellant.

Having resolved the two (2) issues in this appeal against the
appellant, the appeal lacks merit and it is accordingly
dismissed.

The judgment, conviction and sentence of the appellant on
26/09/2012 by O. O. Akeredolu J. is accordingly affirmed.

ADDO V. THE STATE

IN THE COURT OF APPEAL OF NIGERIA

ON THURSDAY, THE 7TH DAY OF JANUARY,
2016