Prosecution not obliged to call a host of witnesses – SC

In the Supreme Court of Nigeria On Friday, the 16th day of December 2011 Before their Lordships: Ibrahim Tanko Muhammad (JSC), John Afolabi Fabiyi (JSC), Olufunlola Oyelola Adekeye (JSC), Nwali Slyvester Ngwuta (JSC), Mary Ukaego Peter-Odili (JSC) This is an appeal against the decision of the Court of Appeal, Jos Division, hereinafter referred to as […]

In the Supreme Court of Nigeria On Friday, the 16th day of December 2011
Before their Lordships: Ibrahim Tanko Muhammad (JSC), John Afolabi Fabiyi (JSC), Olufunlola Oyelola Adekeye (JSC), Nwali Slyvester Ngwuta (JSC), Mary Ukaego Peter-Odili (JSC)

This is an appeal against the decision of the Court of Appeal, Jos Division, hereinafter referred to as the court below. The decision of the court below was delivered on the 29th day of June, 2010, affirming the conviction and sentence of the appellant for the offence of culpable homicide punishable with death contrary to Section 221 of the penal code.
At the trial high court presided over by the Honourable Justice Yargata Nimpar of the High Court of Justice, Jos, Plateau State before whom the appellant was arraigned, on the 9th day of November, 2005, he convicted the appellant for culpable homicide and sentenced him to death by hanging.
The appellant appealed to the Court of Appeal, Jos, unsuccessfully as that court dismissed the appeal and affirmed the conviction and sentence of the appellant. Against that judgment of the court below delivered on the 29th day of June, 2010, the appellant has appealed to this court.
A brief of the facts is that the charge against the appellant arose from an event leading to the murder of one Godwin Momoh on the 12th day of September, 2001, along Tafawa Balewa Street adjoining Langtang Street, Jos. The incident occurred when the deceased together with Barrister Jonathan A. Mawiyau and Chukwudi Achi were walking to their various houses at Langtang Street, Jos. Jonathan A. Mawiyau testified at the trial of the appellant before the high court as PW1 and he stated that on that day, he along with Chukwudi Achi and the deceased were stopped by some policemen including the appellant, who ordered them to come. That the three of them raised their hands up, obeyed the instructions of the policemen. He said the appellant asked them to introduce themselves and kneeling they complied. PW1 said the appellant then collected a gun from one of the policemen and shot the deceased on the chest and the deceased died instantly.
PW1 identified the deceased saying the incident occurred between 12 noon and 1 pm. He said earlier before the appellant and other policemen called them, he saw them enter a shop and that he specifically saw the appellant come out of the shop with a bottle of hot drink which he drank. PW1 went on to say that the appellant wore the uniform of a constable which was confirmed by the investigating police officer (PW3) who said at the time of incident the appellant was a constable.
PW2, the father of the deceased was called and he rushed to the scene and found his son in a pool of blood. That they took the body home and after sometime the Commissioner of Police sent somebody to find out what happened and the appellant was arrested that night.
PW2 said he was present at the orderly room trial. That when appellant was brought from the cell, he was asked if he knew PW2 and on learning who PW2 was, the appellant knelt down to beg PW2 to forgive him.
The appellant testified on his own behalf as DW1 and he denied the whole incident including either seeing the deceased, PW1 or even begging PW2.
There was no other witness for the defence.
At the conclusion of final addresses on the 28th day of July, 2005, the learned trial judge on the 9th day of November, 2005, in his judgment found the charge proved against the appellant and had him convicted and sentenced to death. Those decisions were affirmed by the court below.
At the hearing the appellant through counsel, Elisha Y. Kurah, Esq., in consonance with appellant’s brief raised two issues from the grounds of appeal which are:
1. Whether the Honourable Court of Appeal was right in affirming the conviction and death sentence passed on the appellant by the trial court on the basis that the offence with which the appellant was charged was proved beyond reasonable doubt.
2. Whether the failure by the prosecution to call other eye witnesses did not amount to withholding evidence.
On Issue No 1:
It is not difficult to flow along with the concurrent findings of the two courts below and that is that nothing impaired the observation put forward by the PW1 whose identification of the appellant as the culprit was instantaneous and not discredited. The evidence of PW2, father of the deceased was not impugned by cross-examination as to who the deceased was and the state PW2 found him and took the corpse home.
Also not lost in view is the encounter at the police station with the appellant which evidence was not contradicted. The circumstances made the absence of a medical report of no moment.
The next question to tackle is whether the conditions under which an offence of culpable homicide punishable with death under Section 221 of the Penal Code under which the appellant as accused was convicted and sentenced were met. The conditions to be met are thus:-
(a) That the deceased had died;
(b) That the death of the deceased was caused by the accused; and
(c) That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.
The court below following on the heels of the findings of the trial high court found those conditions properly met and upon sound evidence supporting. It is in the light of these concurrent findings so made that there is no gainsaying that this court has no business interfering therein.
The standard of proof required in a criminal trial such as the one at hand, that standard beyond reasonable doubt has been established and the Appellant is merely beating about the bush in his attempt to take a contrary position not buttressed by anything worthy of note. The materiality of the contradictions Appellant’s counsel made a hue and cry over is not in place. I resolve Issue 1 against the appellant.
On the second issue of whether the failure by the prosecution to call any other eye witness did not amount to withholding evidence.
What the appellant through counsel in answering the question posed here is saying is as to whether it was not necessary to call the other eyewitness in proof of the case. The appellant is laying a burden for the prosecution which the law has not provided for. The law in proof of criminal offences including the capital one which is the subject of his appeal is that of proof beyond reasonable doubt. In that regard if through only one witness that burden is discharged, so be it and that is sufficient. Proof does not necessarily mean, proof by specific number of witnesses without which, it cannot be said that the case has been established by the standard required. It is rather lame to call for the operation of Section 149(d) of the Evidence Act against the prosecution for failing to call the witnesses that defence felt ought to be called. Since the prosecution was able to make out their case adequately within the standard of proof required, there was no need for surplus sage or superfluity serving no useful purpose. See the cases of Oduneye v The State (2001) 1 SC (Part I) 1; (2001) 1 SCNJ 25; Akpan v The State (1991) 3 NWLR (Pt.182) 695; Mohammed v The State (1991) 7 SC (Part l) 141; (1991) 5 NWLR (Part 192) 438.
There being nothing upon which I can upset what the court below did, I dismiss this appeal and uphold the decision of the court below which affirmed the conviction and sentence of the appellant.