OKORO v. State (1988)

Alternative Citations

(1988) NWLR (Pt.94)

(1988) 12 S.C (Pt II) 88

OSARODION OKORO v. THE STATE

In The Supreme Court of Nigeria

On Friday, the 16th day of December, 1988

SC.48/1988

Before Their Lordships

AUGUSTINE NNAMANIJustice of The Supreme Court of Nigeria

MUHAMMADU LAWAL UWAISJustice of The Supreme Court of Nigeria

ADOLPHUS GODWIN KARIBI-WHYTEJustice of The Supreme Court of Nigeria

ABDUL GANIYU OLATUNJI AGBAJEJustice of The Supreme Court of Nigeria

EBENEZER BABASANYA CRAIGJustice of The Supreme Court of Nigeria


Between

OSARODION OKOROAppellant

AND

THE STATERespondent…………………….A…………………….A. G. KARIBI-WHYTE, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal Division in Benin City dated 20/1/88 dismissing the appeal of the appellant against his conviction and sentence at the High Court Benin City, by Okungbowa, J. Although the facts of the case as presented by prosecution is revolting, and the conduct attributed to the appellant in the offence alleged so callous, bizarre and unreasonable; nevertheless, I believe in the constitutional provision that the accused remains innocent until the prosecution has discharged the burden of establishing a prima facie case for him to be called upon to answer the allegations made against him. This is a fundamental requirement of our criminal justice administration.I do not intend in this judgment to state the facts in any great detail. Since my judgment is based entirely on (a) the failure of the prosecution to make a prima facie case against the appellant, and the obligation of the trial Judge to have discharged him of the offence in consequence, and (b) the error in relying on the evidence of the 6th and 7th accused persons, to establish the guilt of the appellant. I intend to state only the facts which relate to these contentions.The facts briefly stated are that arising from a disagreement among certain youths, a group of them attacked the other group. One Monday Mozea was a victim of this attack and died in consequence. Appellant and six other persons were charged with the murder of the deceased, an offence punishable under S.319 of the Criminal Code. Of the five witnesses called by the prosecution to prove the charge of murder alleged against the seven accused persons, only PW2, Stephen Ozevbogie claimed that he was an eye witness of the assault which resulted in the death of the deceased. He was unable both in examination in chief and cross-examination to identify any of the accused persons as those who participated in the assault. The 3rd PW, Sgt. Barnabas Shagana, who investigated the offence gave evidence that one Osagie Idahosa, who was not called as a witness by the prosecution identified the appellant and stated in the presence of and hearing of the Appellant, that the Appellant was one of those who assaulted the deceased, resulting in his death. PW1, Dr. Ogbemi, gave evidence of the cause of death of the deceased who was identified to him by one Peter Mozea who claimed to be an uncle of the deceased. He concluded his evidence by saying that death was due to severe pains resulting from the injuries received. The injuries he said could have been caused by blows from blunt objects like heavy pieces of wood, planks, metal rods, human fists, heavy shoes, boots or cement blocks.The 4th and 5th prosecution witnesses were formal witnesses. The 4th PW gave evidence that he was a process server but was unable to serve Uche Mozea, Anthony Mozea, Omoruyi Idahosa and Osagie Idahosa who were witnesses in this case. He gave evidence that on investigation he found that Uche Mozea had died as a result of a motor accident and Anthony Mozea was involved in an armed robbery offence, had been convicted and sentenced to death. Omoruyi Idahosa, and Osagie Idahosa who claimed to be Students of Secondary School were traced to the schools they named without success. PW5, a Principal Registrar in the Magistrate’s Court Benin City, was called to tender the deposition of the 2nd, 3rd and 4th deponents in the preliminary investigation. These are Anthony Mozea, Omoruyi Idahosa and Osagie Idahosa respectively.

This was the case of the prosecution against the accused persons. The trial Judge in his ruling discharged and acquitted the 3rd accused for want of evidence, since no prima facie case was made against her to require her to defend the charge against her. The 1st, 2nd, 4th, 5th, 6th and 7th accused persons were called upon to make their defence. Each of the accused persons gave evidence in his own defence denying the charge. The 2nd accused was discharged and acquitted because the learned Judge found the evidence against him inconclusive. The prosecution did not give a more credible evidence of the participation of the 4th and 5th accused to demolish the defence of alibi raised by them. They were also acquitted and discharged. Although there was evidence that the 6th and 7th accused were present at the locus criminis, the learned Judge held that there was none as to the part they played in the assault of the deceased. They also were acquitted and discharged. The prosecution failed to prove its case beyond reasonable doubt against each of these accused persons.…………………….B…………………….

The learned trial Judge then had only the case of the 1st accused to consider. He found him guilty of the offence as charged. In coming to this conclusion the trial Judge relied on (a) the evidence of the 3rd prosecution witness that he was told by one Osagie Idahosa in the presence of and the hearing of the 1st accused person that the 1st accused person joined other assailants to commit the crime;
(b) the cause of death of the deceased as stated by 1st prosecution witness is consistent with the act of the accused person;
(c) the evidence of the 6th and 7th accused persons that 1st accused beat the deceased with his fist and legs and even refused cold water to be administered to the deceased when the deceased was in great pains and was gasping for breath;
(d) the evidence of the 1st, 2nd, 3rd prosecution witnesses and the 6th and 7th accused persons who very much impressed him as witnesses of truth.

It is pertinent and useful for my purposes in this judgment to analyse the evidence of the 1st, 2nd, and 3rd prosecution witnesses, relied upon by the learned trial Judge in calling on the 1st accused to make his defence. These are the evidence in (a) and (b) above. There seems to me no doubt that the evidence of the 1st prosecution witness, that is, the Medical Doctor had no particular relationship at this stage with any of the accused persons. The 2nd prosecution witness who was an eye witness of the brutal and dastardly assault was unable to and consistently maintained that he could not recognise any of the assailants and could not identify the 1st accused or any of the accused persons as among the assailants of the deceased. The evidence of PW3 that Osagie Idahosa alleged to the hearing and in the presence of the 1st accused that 1st accused was among the assailants of the deceased, was rejected by the trial Judge when he rejected the deposition of Osagie Idahosa. Even if it was admitted, Osagie Idahosa not being a witness in the case it would not have been evidence against the 1st accused. Thus, at the end of the prosecution’s case all that was established beyond doubt was the death of a human being alleged to be Monday Mozea. PW1 has given evidence of death of Monday Mozea. Peter Mozea who it was claimed identified the deceased to PW1 was not called as a witness for the prosecution. Accordingly, the prosecution was unable to give evidence of the nexus between the accused person and the commission of the offence.

It is a constitutional requirement that every person who is charged with a criminal offence will be presumed to be innocent until he is proved guilty. See S.33(5) Constitution 1979. This is the presumption of innocence to which everyone charged with a criminal offence is entitled. It is important to observe also that an accused person is not obliged to say anything. See S.33(11). He will be obliged to make his defence to the charge if his remaining silent will result in his being convicted on the case made against him by the prosecution – See S.137(3) Evidence Act, Cap.62, R v Mohammed Bada & anor. (1944) 10 WACA. 249. Section 137(1) of the Evidence Act provides

“If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.” – See Oteki v Attorney-General Bendel State (1986) 2 NWLR (Pt.24) 648.
This burden remains on the prosecution to the end of the case and never shifts.…………………….C…………………….

It is a general burden to rebut the presumption of innocence constitutionally guaranteed to the citizen. See Alonge v I. G. of Police (1959) 4 FSC 203.

The question then arises how the burden can be discharged? The burden on the prosecution is only discharged when the essential ingredients of the offence charged have been established and the accused person is unable to bring himself within the defences or exceptions allowed under the law generally or the statute creating the offence. See Oteki v. A-G. Bendels State (1986) 2 NWLR (Pt.24) 648. Thus in a prosecution for murder, it is essential for the prosecution to prove:
(a) Death of the deceased by a voluntary act of the accused.
(b) With intent to cause such death or cause grievous bodily harm to the deceased.

It is vital to the case of the prosecution to prove that death of the deceased was a direct result of the act of the accused to the exclusion of all probable causes. It is necessary for the body where identification is required to be identified by a person who knew the deceased alive. See R v Laoye & anor (1940) 6 WACA 6.Thus if at the close of the case for the prosecution the evidence led fails to meet these essential requirements, it seems to me incontestable that the prosecution has not discharged the constitutional burden to establish the guilt of the accused beyond reasonable doubt. Section 33(5) – See Are v Adisa (1967) NMLR 304.

The learned trial Judge in discharging the 3rd accused at the close of the case for the prosecution relied on the provisions of section 286 of the Criminal Procedure Law, which provides –

“If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the defendant sufficiently to require him to make a defence the court shall, as to that particular charge discharge him.” The words in italics are relevant and important in indicating the duty required of the Court. Thus the mere use of the words “if … it appears” does not entitle a judge to say that it does appear, to him, where the prosecution has not made out a case against the accused to answer. Again the case so made out must be ‘sufficient’ to require the accused to make a defence. It is not sufficient that there has been a casual reference to the accused. Therefore, the case of the prosecution ought to be sufficiently cogent to require the accused to further deny the accusation. See Police v Marke (1957) 2 FSC. 5: Nwali v Police (1956) 1 ERNLR 1.

It is only after this requirement has been satisfied that the learned Judge would hold that a prima facie case has been made out for the accused to answer, and call upon him to make his defence – See S.287 Criminal Procedure Law, Cap. 49 Vol. 11 Laws of Bendel State. The learned trial Judge in this case found as a fact (1) that the deceased died from injuries inflicted on him by his assailants; (2) that the cause of death was consistent with the voluntary act of the deceased’s assailants as stated in the evidence of the 2nd prosecution witness; (3) that the assailants intended to kill the deceased or do grievous bodily harm to him; (4) But he did not find at the end of the case of the prosecution that any of the accused was connected with the assault resulting in death of the deceased. It was on this evidence which they gave in their own defence which the learned Judge believed, that the learned Judge discharged and acquitted the 2nd, 4th, 5th, 6th, and 7th accused persons on the ground that the prosecution failed to prove the charge against them beyond reasonable doubt.
Like the 2nd, 4th, 5th, 6th and 7th accused persons, the 1st accused gave evidence in his own defence. But the learned trial Judge convicted him on the evidence of the 3rd prosecution witness and of the 6th and 7th accused persons. The evidence of the 3rd prosecution witness on cross-examination was as follows-…………………….D…………………….

“I arrested the 1st accused person after in the midnight of 10th/11th of December, 1983. Osagie Idahosa had identified him and told me in the presence and to the hearing of the 1st accused was one of those who killed the deceased.” (See p.12 lines 26-30). The evidence of the 6th accused was as follows:

“I saw the 1st accused person from where I was standing outside breaking the door leading to where the deceased had locked himself up. When the 1st accused person succeeded in breaking the door leading to the room where the deceased was I saw the other persons in the 1st accused person company enter into the room.

Shortly afterwards, I saw Theophilus dragging the deceased on the ground by pulling him on the legs. The deceased was then finally dragged outside and placed on a spot about 16 feet away from me. While the deceased was on the floor outside I saw the 1st accused persons, Theophilus and Harrison Ogbevoen beat the deceased with hands and legs. The 7th accused person who also came out with the 1st accused person and Harrison Ogbevoen did not beat the deceased instead he joined me where I was watching the Passat Car. I noticed that the beating was severe and the deceased cried in pains and asked for water to drink. One boy whom I had not known before brought some water to the deceased but the 1st accused person refused that the water should be given to the deceased. The 1st accused threw the water away. While the deceased was still sprawling on the ground the 1st accused person jumped up and hit the deceased hard on the head.

The 7th accused on his part gave evidence in his own defence and stated as follow

“At the Scene of Crime I joined the others to pursue the deceased. Those of us who pursued the deceased were the 1st accused, Theophilus, Harrison, Godwin and myself in addition to the other boy whose name I cannot remember. The deceased ran into room of a house and locked up himself there. A woman was by the door and pleaded with us that the deceased was not in the room. The 1st accused said that the woman was lying and so the 1st accused person forced the door open and immediately the deceased came out of the room to the parlour. The deceased was seized by Theophilus and 1st accused, Theophilus, Harrison, Godwin and the other boy began to beat the deceased. The deceased was been beaten with fist and legs. When I could not stand what the 1st accused person, Theophilus, Godwin and Harrison were doing and I could not stop them from beating the deceased I came out of the room. I was outside when I saw Theophilus the 1st accused, Harrison and Godwin drag the deceased outside. While the deceased was lying on the floor outside the 1st accused person Theophilus, Godwin, Harrison and the other boy began to beat the deceased by using fist and legs. One old man came, he is the 2nd PW. in this case. The 2nd PW tried to prevent further beating of the deceased the old man was pushed away, he fell, got up and sat at a place close by. I told the 1st accused, Theophilus and Godwin that what they were doing was bad and that they should leave the deceased. I collected water from a nearby well and I poured the water on the deceased. The 1st accused person and Godwin wanted to put the deceased in the boot of the car, but I prevented them. The learned Judge appreciated the status of 6th and 7th accused persons as co-accused of the 1st accused and that they had their own interest to serve and therefore warned himself of the risk of relying on the evidence. However, the learned Judge believed them as truthful witnesses who impressed him in the manner they gave their evidence unshaken during cross-examination. Finally he said:
“I believe the 6th and 7th accused persons that the 1st accused person joined the other assailants to murder the deceased. I do not believe the 1st accused person. He appeared to me as a young man who has no regard for truth. He lied in order to deceive the court. I regard his denial as an afterthought.”
After considering and rejecting the defences of provocation and self-defence, the learned Judge concluded:…………………….E…………………….

From the evidence of the 1st prosecution witness it is not possible to find out whose act of the 1st accused and the other assailants now at large killed the deceased. I find the case of the murder of Monday Mozea against the 1st accused person Osarodion Okoro, proved by the prosecution beyond reasonable doubt and I accordingly find him guilty of the murder of Monday Mozea.”
(See p.54 line 30 to p.55 lines 1-8).

Accused appealed against the conviction and sentence. He filed two grounds of appeal and with the leave of the court two additional grounds of appeal were filed. For the purpose of the appeal, only the two additional grounds of appeal were argued. They are as follows:
“(1) The learned trial Judge erred in law in finding the appellant guilty of the offence of murder, as charged by relying on the evidence of the 6th and 7th accused persons. See page 55 lines 3-6, page 53 line 32, and page 54 lines 1-9.
PARTICULARS
The evidence, at the trial, of the 6th and 7th accused persons was at variance, in material particulars with their statement Exhibit 6 and 7 respectively to the police, so that their evidence was not as reliable as the learned trial Judge found it to be and thus was wrong to rely on the said pieces of evidence to convict the appellant.”
(2) The learned trial Judge erred in law in finding the appellant guilty of the offence of Murder as charged when the prosecution did not prove its case beyond reasonable doubt as required by law.
PARTICULARS
The 6th and 7th accused persons on whose evidence the learned trial Judge relied in convicting the appellant, of the offence of murder as charged, were not witnesses of truth, whose evidence proved the charge of murder beyond any reasonable doubt; in that, “the evidence of the 6th and 7th accused persons on oath was not exactly in line with what they told the police at their earliest opportunity”. See page 54 lines 3-9, page 63-64, page 28 lines 4-25, page 31 line 31-32 and page 32 lines 1 and 2.”
Concisely stated, the grounds relate to the correctness and validity of the conviction which relied on the evidence of the 6th and 7th accused persons, and the claim that the prosecution proved its case beyond reasonable doubt. In considering the correctness of relying on the evidence of the 6th and 7th accused persons for the conviction of the appellant, the Court of Appeal observed that ‘there, is no dispute whatever that without the evidence of 6th and 7th accused appellant could not have been convicted of the murder of Monday Mozea,’ and continued that ‘The evidence that Osagie Idahosa told PW3 in the presence of the appellant, that appellant joined other assailants to kill Monday, may not be sufficient to ground a conviction for murder. But the 6th and 7th accused persons were at the scene and they saw and testified to the role played by the appellant in the commission of the crime. ‘
The Court of Appeal went on to consider whether the learned trial Judge was right in accepting and using the evidence of the co-accused person to convict the appellant. The Court of Appeal relying on Section 177(2) of the Evidence Act, and the decided cases of Ukut & Anor v The State (1965) 1 All NLR 306; Queen v Onuegbe (1957) 2 FSC 10; Adeyeye v State (1968) NMLR 48 among others, held that the learned trial Judge having warned himself about the risk of relying on such evidence was entitled to use the evidence against the appellant even though it is evidence of a co-accused. The Court of Appeal added that the 6th and 7th accused persons corroborated each other’s evidence – See Queen v Asaba & ors. In re Adamu (1961) 1 All NLR.673.
The Court of Appeal considered the issue of material contradictions in the statements to the police and evidence in court of the 6th and 7th accused persons and held that there were no fundamental material inconsistencies between their statements to the police and their evidence at the trial. This is a further appeal to this court. Three original grounds of appeal were filed, and with leave of this court, appellant filed an additional ground.…………………….F…………………….

The following are the original grounds of appeal excluding the particulars:
“1. The Learned Justices of the Court of Appeal erred in law when they held that there were no fundamental and material inconsistencies between the statements of the 6th and 7th accused persons to the Police and their evidence in Court as erroneously held by the Learned Trial Judge.
2. The Learned Trial Judge and the Learned Justices of the Court of Appeal erred in law when they failed to consider the offence of Manslaughter in a case of fight amongst youths on the street/Road.
(a) It was incumbent on the learned Trial Judge and the Justices of the Court of Appeal to consider the offence of Manslaughter whether it was raised by the Defence/Appellant or not. The Learned Trial Judge and the Justices of the Court of Appeal did not also consider the defence of provocation. It is settled Law that such defence ought to have been considered before sending the appellant to the gallows.
3. The Learned Trial Judge and the Justices of the Court of Appeal erred in Law in finding the appellant guilty of murder when the prosecution had failed to prove all the essential ingredients of murder beyond all reasonable doubt.”
The only additional ground of appeal reads:-
The learned trial Judge and the Honourable Justices of the Court of Appeal erred in law to have convicted the accused/appellant of murder, when all the circumstances of the case did not lead with irresistible (sic) force to his guilt or when all the elements of murder were not proved beyond reasonable doubt at the court of trial.”
Counsel filed their briefs of argument which they relied on in the argument. Both counsel formulated issues for determination in the appeal. Counsel for the appellant formulated four issues which are as follows:
Questions For Determination
“(a) whether the trial Judge and Justices of the Court of Appeal were right to have convicted the appellant solely on the uncorroborated evidence of the 6th and 7th accused who were co-accused at the Court of Trial?
(b) whether the trial Judge was justified in accepting the depositions of four deponents as Exhibits during the proceedings when there was no foundation laid in accordance with the provisions of Section 34(1) of the Evidence Act?
(c) whether the failure to identify the body of the deceased to the medical officer before autopsy by a witness who knew the deceased before his death was not fatal to the case of the prosecution?
In the Alternative
(d) whether the death of the deceased was caused by the alleged act of the appellant?”
But Respondent’s Counsel formulated only two issues, namely:
“(a) Whether the appellant was rightly convicted and sentenced to death for the offence of murder on the evidence of the 6th and 7th accused persons who were co-accused persons and affirmed by the learned Justices of the Court of Appeal.
(b) Whether the depositions of the four deponents whose names appeared at the back of the information were properly tendered by the prosecution and rightly admitted in evidence by the learned trial Judge.”
This court has advised counsel formulating issues for determination in an appeal to bear constantly in mind that the only issues relevant for determination are those which fall within the grounds of appeal filed and are deducible from the grounds of error alleged. Any issue raised which is not related to any of the grounds of appeal cannot be regarded as an issue which falls for determination.
For instance the second of the appellants’ and respondents’ issue for determination which raised the justification in accepting the depositions of four deponents as exhibits during the proceedings without a foundation having been laid, is not a main issue traceable to any of the three original grounds of appeal or the additional ground of appeal, filed. It is a well known practice that appellant can only argue the grounds of appeal filed and no other except with leave of this Court.…………………….G…………………….

The grounds of appeal filed in this court is not substantially different from the grounds of appeal filed and argued in the court below.
Counsel for the appellant abandoned the second ground but argued the grounds of appeal separately and seriatim.
Counsel submitted that the conviction of appellant by the trial judge and its affirmation by the Court of Appeal were based solely on the evidence of the 6th and 7th accused persons believed by the trial Judge. It was pointed out that it was apparent on the record that at the close of the case of the prosecution, in the words of counsel, ‘there was no iota of evidence against the appellant’. It was submitted that it was the evidence of the 6th and 7th accused in their own defence that incriminated the 1st accused/appellant. Counsel criticised the finding of the trial Judge that the evidence of 6th and 7th accused persons on oath, and to the Police were consistent and made at the earliest opportunity when each of them disappeared after the commission of the offence and were found only after two and three months, respectively of evading arrest to make the statements credited to be consistent. Their statements can therefore not be said rightly to have been made at the earliest opportunity.
Counsel argued that the trial Judge did not find any corroboration of the evidence of the co-accused, and that in the peculiar circumstances it was not sufficient for the Judge merely to say that he had warned himself of the dangers of convicting on such evidence. Since this was the only evidence relied upon by the court it was difficult to hold that the prosecution proved the offence against the accused: See William Idahosa & anor. v The Queen (1965) NMLR. 85; Prater v R. 44 C.A.R. 83; Ukut v The State (1965) 1 All NLR 306 at 311.
It seems to me that the main plank upon which the Court of Appeal rested its decision affirming the judgment of the trial Court was on the evidence of the 6th and 7th accused persons who were charged together with the appellant for committing the offence of murder. As the Court pointed out, ‘there is no dispute whatever that without the evidence of 6th and 7th accused, the appellant could not have been convicted of the murder of Monday Mozea ….’ Thus, the court relied on the evidence of appellant’s co-accused persons for his conviction. The evidence of the 2nd and 3rd prosecution witnesses were regarded as ancillary and probably corroborative.
The Court relied on section 177(2) of the Evidence Act and Badmus v. Police (1948) 12 WACA. 361; R. v. Agwunna (1948)12 WACA. 456; R. v. Asaba (1961) 1 All NLR 673; Ukut & ors v. The State (1965) 1 All NLR 306 to hold that the evidence of a co-accused shall not be regarded as that of an accomplice for the purpose of the statutory warning required by section 177(1) of the Evidence Act. This court so held in Queen v. Onuegbe & 3 ors (1957) 2 FSC. 10. The Court of Appeal relying on The State v. Idahosa (1965) NMLR. 85 and Adeyeye v. The State (1968) NMLR 48 has stated that where a co-accused in a trial gives incriminating evidence the trial Judge should warn himself if acting on such evidence.
It is pertinent to construe the provisions of section 177(2) of the Evidence Act, Cap.62 relied upon, and to consider the cases decided on that section in their application to the case before us. I have already set out the relevant evidence of the 6th and 7th accused persons. Now section 177(2) provides:-
“Where accused persons are tried jointly and any of them gives evidence on his own behalf which incriminates a co-accused the accused who gives such evidence shall not be considered to be an accomplice.”
The words of this section are clear and unambiguous. They provide that a co-accused shall not merely by that fact be regarded as an accomplice. I do not think it should be construed to mean that even where the participation of the accused makes him on the facts in fact an accomplice in the commission of the offence, he ceases to be so merely because he gave evidence in his own behalf incriminating a co-accused in a joint trial. This appears to be the effect of R v Onuegbe (1957) 2 FSC 10. In R v Onuegbe (supra), Ejembi, who gave evidence incriminating the other accused persons was not tried jointly with them and was therefore not a co-accused. Again there was no evidence of a common design among the four accused persons. Ejembi who gave the incriminating evidence was not a co-accused of the other accused persons; although he was in law an accomplice because he went with the others to steal the yams. His evidence required corroboration. The Court was of the opinion that a warning was not necessary in respect of the evidence of the 1st appellant incriminating the 4th appellant. Similarly it was held in I.G. of Police v. Akinbayode (1958) WRNLR 161.…………………….H…………………….

In Ukut & ors v The State (1966) NMLR 18, this Court observed that notwithstanding that neither corroboration nor warning was necessary in relying on the evidence of a co-accused, caution was necessary in relying on the evidence because such a witness has his own interest to serve – See also Badri v Police (1968) NMLR 448. Thus in Ukut & ors v The State (supra) the practice became established that though the evidence of a co-accused is not to be regarded as the evidence of an accomplice it does require corroboration or warning. See Ogundipe & ors v Queen (1954) 14 WACA 458.0bviously, a co-accused is a person who has his own purpose to serve. The evidence of such a witness however must be suspect and regarded with considerable caution. In Idahosa & ors v The Queen (1965) NMLR 85, the 5th and 7th prosecution witnesses were at a stage charged with the appellants for the offence of murder. They gave evidence incriminating the other accused persons. This court held:
“are of the view that in these circumstances the evidence of the 5th and 7th prosecution witnesses ought to be regarded with considerable caution, and the trial court should have been wary in reading a verdict of guilt on the uncorroborated evidence of such witness.”
The court, however, appreciated the risk of an unrestrained admission of the evidence of this category of witnesses who are neither accomplices or non-accomplices whose evidence cannot be totally free from suspicion. They are akin to the tainted witness formulated in R v Omisade & ors (1964) NMLR 67. This Court had occasion to deal with the situation in Ukut & ors v The State (1966) NMLR 18, where Bairamian gave the principles to be followed. He said:
“It is prudent for the trial Judge to remind the jury or himself of the need for caution in regard to any witness, including a defendant who has an interest to serve. Sub-section (2) (of section 177) does not debar the judge from treating a defendant’s evidence as the facts of the case may require. There is no hard and fast rule, but the judge is expected to act with good sense, and the appellate court may think that his lack of caution led to substantial miscarriage of justice in a given case …
The judicial attitude therefore despite the clear words of section 177(2) of the Evidence Act is that although the evidence of a co-accused incriminating another is not to be regarded as the evidence of an accomplice which requires corroboration, to be relied upon it was necessary to find corroboration outside the evidence of the accused person. In Madayi and Sokoto v The State (1968) 1 All NLR 116, where the learned trial Judge before convicting on the evidence of a co-accused found corroboration in two prosecution witnesses, this court said:
“Here the Judge did say that the seventh accused was an innocent man; indeed he found him guilty of the offence for which he was charged on his own confession and convicted him accordingly. What the Judge said was that he was truthful and reliable. Section 177(2) of the Evidence Act provides that his evidence should not be regarded as that of an accomplice for the purpose of the statutory warning and we think that having adopted the cautious approach recommended in Ukut’s case the Judge was right in concluding that the evidence of the seventh accused confirmed that of the second and third prosecution witnesses.”
The court went on to pronounce on the desirability of corroboration and said:
“We will only add that the Judge also believed and accepted the evidence of the second and third prosecution witnesses and that provided he warned himself properly on the question of corroboration which clearly he did, he would have been entitled, as the learned Director of Public Prosecutions has submitted, to convict the appellants on the evidence of these two witnesses.” Here, it could be seen that the court, was in considering s.177(2) speaking of the evidence of a co-accused incriminating an accused being corroborated by the evidence of prosecution witnesses. Counsel to the appellant had rightly pointed out in this appeal that the trial judge did not find any evidence in corroboration of the evidence of the 6th and 7th accused, which standing on its own was not sufficient to support the conviction.…………………….I…………………….

The evidence of the 2nd prosecution witness the only other eye witness did not identify the 1st accused as one of those who assaulted Monday Mozea, has not improved upon the burden of proof on the prosecution. Thus the conviction stands only on the evidence of the 6th and 7th accused which independently require corroboration.
It is conceded of course that there is no common law rule of general application that evidence of a witness which is itself suspect for a reason which calls for a warning of the danger of convicting on it unless it is corroborated, is incapable in law of amounting to corroboration of the evidence of another suspect witness whose evidence is also suspect for the same or any other reason which calls for a similar warning – See D.P.P. v Hester (1973) 57 Cr. App. R. 212. This general common law rule does not apply to mutual corroboration. This is because (i) one accomplice cannot corroborate another where each is an accomplice of the accused in the same crime, (ii) the unsworn evidence of a child cannot corroborate the unsworn evidence of another child. In D. P.P. v Kilbourne (1973) 57 Cr.App.R.381, the general principle that accomplices cannot corroborate each other was accepted. The observation as to possible exceptions do not apply to the instant appeal.
This court has never entirely ruled out the necessity for corroboration in the application of section 177(2). In Oyediran v Republic (1967) NMLR.122 at p.117 which concerned a charge of forgery. the 1st and 3rd appellants gave evidence as to the part played by the 5th appellant in the preparation and ‘processing’ of the forged payment voucher on which counts 5.6 and 7 were based. There was no independent evidence of someone else not an accomplice against the 5th appellant in respect of these counts. The Supreme Court relying on Ukut & ors v The State (supra) pointed out that section 177(2) of the Evidence Act will not operate to avoid the necessity of corroboration of the evidence of a self-confessed accomplice. It was also pointed out that the learned trial Judge having failed to consider this aspect of the case, the convictions of the appellants on counts 5, 6, and 7 must be quashed.
The decision of Enitan v. State (1986) 3 NWLR (Pt.30) 604 cited by counsel for the Respondent is only authority for the view that evidence on oath by a co-accused is evidence against another accused it believed. That case emphasized that such evidence is suspect. The issue of corroboration vel non which is the crucial factor in the instant appeal was not discussed. Counsel to the Respondent is therefore in error to assume that corroboration of the evidence of a co-accused incriminating another is never required because s.177(2) of the Evidence Act has stated that he is for that purpose not an accomplice whose evidence requires corroboration. The evidence of the 6th and 7th accused could not corroborate each other.
The learned trial judge in this case was wrong not to have found corroboration. The Court of Appeal was itself also wrong to have supported the conviction of the appellant in the absence of corroboration. Recently in Mbenu v The State (1988) 3 NWLR. (part 84) 615, this court has held per Nnamani J.S.C. at pp.625-626 that the evidence of a tainted witness should be considered with considerable caution and be examined with a tooth comb. It was stated quite clearly that trial courts should be wary in convicting on the evidence of tainted witnesses without some corroboration” See also Isholo v State (1978) 9-10 SC.81, State v Okolo (1974) 2 SC.73, 82. It was added that it is prudent always for the trial judge to warn himself as in the case of an accomplice, before relying on and convicting on the evidence of a co-accused. It is not the evidence per se, but such evidence if believed that should require corroboration.
This ground of appeal therefore succeeds. It is more convenient to consider together the original ground 3 and the additional ground of appeal. The substance of both grounds of appeal is that the prosecution did not prove the charge against the appellant beyond all reasonable doubt. I have already set out these grounds of appeal in this judgment. It is only necessary for me to consider the grounds of appeal. I should point out at once that learned counsel for the appellant sought and was granted leave to abandon particular (a) of the additional ground of appeal. The application was granted and particular was accordingly struck out.…………………….J…………………….

I have stated that the gravamen of these grounds of appeal is the failure of the prosecution to prove the case alleged against the Appellant. This is entirely a ground of law founded on sections 286, 287(1) of the Criminal Procedure Law, and section 33(5) of the Constitution 1979. Although Counsel did not raise these points in argument before us, they are so fundamental to the validity of the trial that an appellate court ought not to ignore it. This is so even if counsel were not invited to argue the point before us. It is a point the court is entitled to take suo motu. – See Oloba v Akereja (1988) 3 NWLR. (Pt.84) 508 Odiose v. Agho (1972) 1 All NLR (Pt.1) 170; Bronik Motors  v. Wema Bank Ltd. (1983) 1 SCNLR. 296 Oloriode v. Oyebi (1984) 5 SC.1.
Sections 286 and 287(1) of the Criminal Procedure Law, Cap 49 provide in part, as follows-
“286. If at the close of the evidence in support of the charge it appears to the Court that a case is not made out against the defendant sufficiently to require him to make a defence the Court shall, as to that particular charge discharge him.
287(1) At the close of the evidence in support of the charge if it appears to the Court that a prima facie case is made out against the defendant sufficiently to require him to make a defence the court shall call upon him for his “…The ordinary interpretation of these sections appear to impose on the Court the obligation to apply these provisions where the accused makes a submission that the prosecution has not made out a case for him to answer, or where the court suo motu takes up the point and if it discovers that the prosecution at the close of its case has not proved the essential ingredients of the offence, to discharge the accused – See Ajidagba v I.G.P. (1958) 3 FSC.5.
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It is well settled that in addition to failure to prove essential ingredients of the offence, the case of the prosecution may fail and the accused not required to defend himself if the evidence is so manifestly unreliable having been destroyed by cross-examination of the witnesses that no reasonable tribunal will convict on that evidence – See Daboh v State (1977) 5 SC. 197.
In the light of the constitutional provision of the presumption of innocence in section 33(5) it seems to me and this has been held in Mumuni v The State (1975) 6 SC. 79 that these decisions which hold that where a submission of no case to answer is wrongly overruled and the accused subsequently gives evidence in his own defence and supplies the hitherto missing ingredients required for his conviction and is convicted consequently, the conviction will be regarded as valid and not be set aside on appeal; are no longer good law. See R v Ajani (1936) 3 WACA. 3, Eregie v Police (1954) 14 WACA. 453.
In my opinion a submission is wrongly overruled if when the ruling was made calling upon the accused to make his defence to the charge the evidence presented by the prosecution was not sufficient to require the accused to make his defence. It is both the constitutional duty imposed on the Court, and the right conferred on the accused by the constitution to ensure the purity of our criminal justice administration that the presumption of innocence of the accused is maintained inviolate. Accordingly even where the point was not taken by the accused or his counsel, being fundamental to the jurisdiction of the court it should be taken by the Court. – See Oloba v Akereja (supra), Odinse v Agho (supra). It must be pointed out in this case that every proceeding subsequent to the violation of the provisions of s.33(5) of the Constitution is void having been conducted without competence – See Madukolu v. Nkemdilim (1962) 1 All NLR. 587. I have already pointed out and set out in this judgment the provision of s.33(5) which provides for the presumption of innocence. Under our law, it is not for the accused to prove his innocence. The burden is on the prosecution to establish the case against the accused beyond reasonable doubt. These propositions establish that where no case has been made out against the accused at the end of the case of the prosecution, asking him to answer the charge against him is a reversal of the constitutional provision by asking him to establish his innocence – See Mumuni v. the State (1975) 6 SC. 79, Daboh v. The State (supra).
In re Maiduguri (1961) 1 All NLR. 673, Ademola CJF, confronted with the situation declared:…………………….K…………………….

To put the position clearly, if at the close of the case of the prosecution, a submission of no case to answer was wrongly overruled and the case continued resulting in the conviction of the accused, an appeal against the conviction resulting from the proceedings will succeed.”
The learned trial Judge in this instant case discharged the 3rd accused at the close of the case for the prosecution on the ground that the 2nd P. W. said in his evidence that he did not see any female among the assailants of the deceased. The evidence of the 2nd P.W. that he did not see any of the accused persons or could not identify any of them as among the assailants of the deceased remained the only evidence about the assailants and against the accused including appellant till the close of the case of the prosecution. Thus at the end of the case for the prosecution, none of the accused persons was identified as one of the assailants of the deceased. The trial Judge was at this stage under a constitutional duty to discharge all the accused persons: But he did not do that. Rather what he did was to call upon them to make their defence; this was an invitation to them to establish their innocence.
The evidence of the 6th and 7th accused which purported to identify the appellant was given in violation of the constitutional provision of the presumption of innocence and accordingly void. It is therefore not evidence in the case.
In Daboh v The State (supra) Udo Udoma JSC stating the ratio decidendi of Mumuni v The State (supra) said,
“…. There, the decision on the aspect of the case now under consideration was that where there is absolutely no evidence against the prisoner at the end of the prosecution’s case, the court is under a legal obligation to discharge him at that stage, for to do otherwise, would be tantamount to placing upon the prisoner the onus of establishing his innocence…”
This is the position in this case. This Court will be unwittingly departing from several of its earlier decisions without justification if it should come to a contrary decision. The law is now well settled that the protection of the accused presumed to be innocent cannot be curtailed by the strength of the case founded on suspicion however strong. A conviction must be founded on evidence establishing the guilt of an accused beyond reasonable doubt. This ground of appeal also succeeds.
On the whole all the grounds of appeal succeed. The conviction and sentence of death imposed by the High Court, and affirmed by the Court of Appeal Division, Benin City, is hereby set aside. The appellant is acquitted and discharged.

A. NNAMANI, J.S.C.: In this criminal matter, the appellant and 6 others were charged with Murder punishable under Section 319(1) of the Criminal Code Cap. 48 Vol.11 Laws of Bendel State of Nigeria, 1976, in that on the 10th day of December. 1983 they unlawfully killed one Monday Mozea.
The facts as led in evidence and set down by the learned trial Judge, Okungbowa, J. were as follows:-
The 2nd prosecution witness, Stephen Ozerbogie stated that in the evening of the 10th day of December, 1983 at about 6.00 o’clock he went into a nearby bush to collect herbs for his children who were ill. While in the bush, he heard an unusual loud noise from the direction of his house and this prompted him to come out of the bush. When he got to the road he saw some people beating the deceased with fists, legs, sticks and iron rods. He could not identify any of them. He, however, appealed to the assailants to stop beating the deceased, but the assailants refused and when he attempted to stop them he was pushed out of the spot and he fell to the ground. After a while, the assailants left, leaving the deceased on the ground sprawling. The witness tried to give the deceased first aid but when he noticed that his condition was very bad he gave one Edosa N1.00 as taxi fare to the market where the deceased’s mother was selling her wares to inform her of what had happened. Shortly after Edosa left, the deceased’s brother came out of the bush and with the help of the brother, the deceased, who could not rise from the spot where he was beaten, was conveyed to the Specialist Hospital now Central Hospital.…………………….L…………………….

The medical evidence was given by Dr. Olukpamone Solomon Ogbemi who testified as P.W.1. He was a Doctor attached to the Specialist Hospital, now Central Hospital, Benin City and stated that on 15/12/83 he performed a post-mortem examination on the body of one Monday Mozea which was identified to him by one Peter Mozea who claimed to be an uncle of the deceased. The only other evidence led by the prosecution was that of P.W.3, Police Sergeant Barnabas Shagana. He investigated the case. He stated that while on duty at the Ezigie Police Station, one Uche Mozea reported a case of murder at the station. He immediately left for the Central Hospital, Benin with Uche Mozea where the deceased was said to have been taken to. When he got to the Central Hospital, he found that the deceased had died and was deposited at the hospital mortuary. He gave evidence how he arrested the accused persons and took their statements. He also testified that at the residence of the 1st accused (i.e. the appellant) Osagie Idahosa identified the 1st accused person to him and told him in the presence and to the hearing of 1st accused person that the 1st accused person was one of the people who murdered the deceased.
At the close of the case of the prosecution, a submission of no case to answer was made on behalf of the appellant who was represented by counsel. The learned trial Judge., however, made the following ruling:
“At close of the prosecution’s case while one witness stated that no woman took part in the beating of the deceased, another stated that the 3rd accused person merely stood by and watched the deceased beaten to death. I hold that these pieces of evidence are not sufficient for me to call upon the 3rd accused person Victoria Echoha to make a defence. The 3rd accused person is accordingly acquitted and discharged. However, on the evidence before me, I rule that there is sufficient evidence upon which the 1st, 2nd, 4th, 5th and 7th accused persons can be called upon to make their defence. V. Oviosu Esq., O. I. Adewoye Esq. and C. Evbuomwan are accordingly called upon to lead their defence.”
At the end of the trial in which all the accused persons, including the appellant, gave evidence in their own defence, the learned trial Judge discharged and acquitted all the other accused persons but convicted the appellant. He was sentenced to death. His appeal to the Court of Appeal was unsuccessful and he has now appealed to this Court. Three grounds of appeal were originally filed. By notice of motion dated 20th June, 1988, learned Counsel for the appellant, Mr. G .E. Oaikhena, sought leave of this Court to argue the following additional ground:
(a) “The learned trial Judge and the Hon. Justices of the Court of Appeal erred in law to have convicted the accused/appellant of murder, when all the circumstances of the case did not lead with irresistible force to his guilt or when all the elements of murder were not proved beyond all reasonable doubt at the Court of trial.
Particulars of Error
(b) There was also no evidence that the body of the deceased was identified by any witnesses for the Prosecution who knew the deceased before his death before the medical officer performed an autopsy and this omission was fatal to the case of the prosecution. The mere fact that the medical officer said in his evidence that the body of the deceased was identified to him by one Peter Mozea was not a sufficient identification in murder cases.
c) Although the learned trial Judge said in his judgment that the deposition of the deponents tendered as Exhibits in evidence should not be looked into, yet the judge and the Honourable Justices of the Court of Appeal relied upon the said exhibits and thereby came to a wrong conclusion.”
Leave was duly granted to argue this ground which was being raised for the first time in this Court.…………………….M…………………….

Both learned Counsel to the Appellant and for the Respondent (M. F. Edokpayi) filed briefs of argument. In his own brief of argument, counsel to the appellant raised 3 issues for determination. These were:
“(a) Whether the trial Judge and Justices of the Court of Appeal were right to have convicted the appellant solely on the uncorroborated evidence of the 6th and 7th accused who were co-accused at the Court of Trial?
(b) Whether the trial Judge was justified in accepting the depositions of four deponents as Exhibits during the proceedings when there was no foundation laid in accordance with the provisions of Section 34(1) of the Evidence Act?
(c) Whether the failure to identify the body of the deceased to the medical officer before autopsy by a witness who knew the deceased before his death was not fatal to the case of the prosecution?”
The Respondent’s counsel agreed in his own brief with issues (a) as formulated by the appellant but he put it more directly thus,
“Whether the appellant was rightly convicted and sentenced to death for the offence of murder on the evidence of the 6th and 7th accused persons who were co-accused persons and affirmed by the learned Justices of the Court of Appeal.”
In his submission to this Court, Mr. F.H. Eduvie, who now appeared for the appellant, raised the two issues of the evidence of 6th and 7th accused persons, and the non-identification of the deceased’s body by any person who knew him before. As to the former, he complained about the summing up of the learned trial Judge. He urged that at the close of the prosecution’s case, there was no prima facie case made against the 1st accused i.e. appellant. He contended that the learned trial Judge based his conviction of the appellant entirely on the evidence of the 6th and 7th accused persons. On identification, Mr. Eduvie complained that Peter Mozea who was alleged to have identified the deceased’s body to the Doctor before the post-mortem examination, was not called. He said this was fatal as there was nothing to show that the body on which the doctor performed the autopsy was that of Monday Mozea. He argued that although there was no doubt that Monday Mozea died, it was the duty of the prosecution to show the cause of his death. He referred to Laoye v Rex 6 W.A.CA. 6: Inyere v The State (1976) 11 S.C. 269, 276; Mr. Edokpayi, in reply, first dealt with the issues of identification. He pointed to the evidence by P. W.2 that he and deceased’s brother hired a vehicle and conveyed deceased to hospital on 10/12/83. He also referred to the evidence of P. W.3 to the effect that on 10/12/83 a case of murder was reported. The P.W.3 had said that he rushed to the hospital that same day with the complainant Uche Mozea, deceased’s brother. There he found that the deceased died and the deceased he meant was Monday Mozea. He also referred to the fact that the learned trial Judge believed the testimony of the Doctor, P.W.1.
On 6th and 7th accused persons, he submitted that their evidence was that appellant was one of those who assailed the deceased. The issues which call for examination in this appeal are really three: The question of the evidence against the appellant, if any, at the close of the prosecution case i,e. whether infact there was case for him to answer; the issue of identification of deceased’s body to the Doctor i.e. the medical evidence, and the use which the learned trial Judge made of the evidence of 6th and 7th accused persons who were co-accused persons to the appellant. In discussing the first issue raised above, it has to be mentioned that neither in the original grounds of appeal filed nor in the additional ground did the appellant complain about the question of there being no case to answer against him at the close of the prosecution’s case. Although appellant complained about the use which the learned trial Judge made of the evidence of 6th and 7th accused, this complaint was not linked with any challenge, to the learned trial Judge’s ruling at the close of the prosecution’s case. That linkage was only done by Mr. Eduvie in his oral submission to this Court. If therefore this matter is to be entertained at all see (Ebba vs Ogodo (1984) 1 S.C. N.L.R. 372) it can only be because this is a capital case. In that case, it can be taken to arise indirectly from an examination of the evidence of the 6th and 7th accused persons which admittedly was the main plank on which the learned trial Judge based his conviction of the appellant.…………………….N…………………….

The principles governing a submission of no case to answer, the consequences of a ruling one way or the other, and indeed what a no case to answer means have been pronounced upon by courts in England and in this country. Courts in this country have generally followed the Practice Note issued by the Divisional Court in England in (1962) 1 All E.R. 448. It said. “Without attempting to lay down any principle of law…as a matter of practice, justice should be guided by the following considerations. A submission of no case to answer may properly be upheld (a) when there has been no evidence to prove an essential element in the alleged offence (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination, or is so manifestly unreliable, that no reasonable tribunal could safely convict on it. The decision to reject or uphold the submission should not depend upon whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit, but upon whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer” See also (1962) 1 W.L.R. 227; Ibeziako v C.O.P. (1963) 1 All N.L.R. 61. In two earlier decisions of the Federal Supreme Court it would seem that the standard required was less rigorous than in the Practice Note to which I had earlier made reference. In Queen v Abuah (1961) 1 All N.L.R. 635 that Court, per Brett, F.J. said at p. 639 that “if the facts remained unchallenged and unexplained by the accused person, then there is said to be a case to answer against the accused.”
In Queen v Ogucha (1959) 4 F.S.C. 64 the Court. as per Abbott, F.J. said at page 65,
“In the first place all three men were represented by counsel, none of whom made any submission at the close of the prosecution evidence that there was no case for the 2nd and 3rd accused persons to answer and secondly we held the view that the evidence such as it was against these two men was sufficient to constitute a prima facie case against them and that they, therefore, should have been put on their defence. At the point in the trial to which we refer, it is not for the trial Judge to consider if the evidence is sufficient to justify a conviction, but the trial Court only has to be satisfied that there is a prima facie case requiring at least some explanation from the accused person.”
(Italics mine)
This appears to me to be the proper consideration at the point when a no-case submission is made, or the court is considering when a case to answer has been made out. This accords with the position taken by this Court in later cases. In Daboh v State (1977) 5 S.C. 197 Udoma, J .S.C. treated the matter exhaustively at pages 210 – 216 of the record where he said,
“Firstly, such a submission (i.e. of no case to answer) postulates that there has been throughout the trial no legally admissible evidence at all against the accused person on behalf of whom the submission has been made linking him in any way with the commission of the offence with which he has been charged, which would necessitate his being called upon for his defence.
Secondly, as has been so eloquently submitted by Chief Awolowo that whatever evidence there was which might have linked the accused person with the offence has been so discredited that no reasonable court can be called upon to act on it as establishing criminal guilt in the accused person concerned;…Therefore when a submission of no prima facie case is made on behalf of an accused person, the trial court is not thereby called upon at that stage to express any opinion on the evidence before it. The court is only called upon to take note and to rule accordingly that there is before the court no legally admissible evidence linking the accused person with the commission of the offence with which he is charged to rule positively that a prima facie case has been made out by the prosecution which at the very least called for some explanation by the first appellant.”
The duty cast on the court if there is no case for the accused person to answer seems clear. Section 286 of the Criminal Procedure Act provides as follows:
“286. If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the defendant sufficiently to require him to make a defence the court shall, as to that particular charge, discharge him.”…………………….O…………………….

It seems to me that at the close of the prosecution’s case, a duty is thus cast on the Court to rule whether or not there is a case against the accused person requiring him to defend himself. From the wordings of this section, it does not seem to matter whether a submission of no case is made by counsel or not. The discretion is to say whether a case has been made out or not for the defendant to answer. The duty of the Court to discharge where no case has been made out is mandatory; no discretion applies to this. In such a situation, the Court is under a legal obligation to discharge the defendant. To call on such a defendant to defend himself would be tantamount to requiring him to prove his innocence. This would be a savage attack on a fundamental precept of our criminal law that a man is presumed innocent until proved guilty. Besides, the Constitution of the Federal Republic of Nigeria 1979 provides in Section 33(5) that –
“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”
For sometime, there was some confusion as to the law relating to a defendant’s position when the Court has wrongly ruled that he has a case to answer and accordingly called on him to put up a defence. General cases in England went one way or the other. In Ajani v The State (R v Ajani) 3 W.A.C.A. 3, the West African Court of Appeal reviewed all the English authorities and came to the conclusion that if a submission of no case to answer is wrongly overruled, and the accused person takes further part in the trial, and is convicted on evidence given at that trial, an appeal against that convict ion would not succeed. It also held that if at the close of the case for the prosecution his counsel, if he was represented, made no submission, he can be properly convicted upon evidence subsequently given. Ajani was followed in such cases as Eregie v Police (1954) 14 W.A.CA. 453 and In re Maiduguri (1961) 1 All N.L.R. 673. This aspect of Ajani appears to have been overruled in the later case of Wahab Onasanya Mumuni and 13 Ors v the State (1975) 6 S.C. 79 at 107-109. This Court reviewed the same English decisions as was done in Ajani, and quoted with approval R v Abbott (1955) 2 All E.R. 899 where Lord Goddard said at page 902 referring to R v Power 14 CA.R. 17,
“…..They certainly did not say that, if there was no evidence given against one of two or more prisoners, the learned trial Judge could simply leave the case to the jury to see whether when the case for the defence opened one or other of the prisoners would support the case set up by the prosecution.”
Lord Goddard continued,
“Once it was shown that neither Mrs. Warburton nor the appellant could have taken part in the telephone conversation on which the whole of the case for the prosecution was built, it was not only the duty of the Judge but it was the prisoners’ right to say that the case against the prisoner had collapsed, and that he was not called on to answer the case any further. If it were said to the prisoner that he should go into the box and satisfy the jury that he did not have any of this money, that would be putting the onus on the prisoner.”
It then set down three principles which can be extracted from the records.
1. There is no authority for the proposition that an accused person whose submission of no case to answer has been overruled is entitled by taking no further part in the proceedings, to exclude the co-accused’s evidence against him even when that submission is rightly overruled.
2. Where there is in law a case to answer, one of several accused persons cannot, by refusing to take any further part in the trial, make the incriminating evidence of the other defendants inadmissible against him. See R v. Agwuna (1949)12 W.A.C.A. 456.
3. Where, however, there is no case for a co-accused to answer at the close of the prosecution’s case, he should be acquitted by the trial Judge of the offence charged at that stage of the trial.
This Court, therefore, held that where there is no evidence at the close of the prosecution’s case, and the submission of the defendant has been wrongly overruled, a conviction based on the statement of other accused persons, despite his refusal to participate further in the trial, would be quashed on appeal.…………………….P…………………….

It seems that the Court in Mumuni laid emphasis on the accused person not participating further in the proceedings. As Irikefe, J.S.C (as he then was) said at page 103,
“This is not the same thing as saying that the court could not err in ruling that a prisoner has a case to answer, when in fact the reverse is the case. In the event of this happening, a prisoner who withdraws from further participation in the case, as Ndiwe did, would have a very bright prospect on appeal. If, however he stupidly continued to participate in the proceedings even though no case had been made against him his conviction on evidence subsequently adduced would be in order.”
This passage would seem to me to be endorsing the decision in Ajani. However, it would seem to me that since it was decided that where there is no evidence at the close of the prosecution, the accused person is entitled to be discharged, the meaning is that if there is no evidence, and the submission of no case is wrongly overruled, it would not matter whether the accused person took further part in the trial or not. If he took part, when his submission was wrongly overruled, it would mean that he was being asked to establish his innocence, a clear breach of his constitutional right. This appears to be the explanation of the decision of De Lestang, C.J. in Ede v R (1960) L.L.R. 137 where he held that –
“Abbott’s case does not decide that a wrong ruling on a submission of no case will invariably be fatal to a conviction. Where a Judge wrongly rules that there is a case to answer he gives a wrong decision on a question of law and in such a case the appellant has the right to have his appeal allowed unless the case can be brought within the proviso to Section 4 of the Criminal Appeal Act”
Having thus stated the principles applicable, I shall now return to the present appeal. As stated earlier in this judgment at the close of the case of the prosecution there was no submission of no case submission on behalf of the appellant. The learned trial Judge, pursuant to Section 286 of the Criminal Procedure Act, held that he had a case to answer. At that stage, the evidence by the prosecution which was relevant to the consideration of whether there was or was no case, was the evidence of P.W.1, P.W.2 and P.W.3. The evidence of P.W.1, the Doctor, which the learned trial Judge believed, was that a post-mortem examination was carried out on the body of Monday Mozea on 15/12/83. According to the Doctor, death was due to cardiac vascular shock or failure of the peripuneral blood and severe pains resulting from the injuries. He stated that the injuries could have been caused by blunt objects like heavy piece of wood, planks, metal rods, fists, heavy shoes and boots or cement blocks. P.W.2 who witnessed the attack on the deceased, who he obviously knew, stated how assailants beat him (deceased) almost to death. He and the deceased’s brother took him to the hospital on the same 10/12/83. He could not identify any of the assailants. Then P.W.3, as stated earlier gave evidence that one Osagie Idahosa identified the appellant, in appellant’s presence and to his hearing, as one of those who attacked the deceased on 10/12/83. In my view, this evidence immediately provides the missing link in the testimony of the P.W.2. Some evidence is now given as to one of those who attacked the deceased, in respect of which attack the P.W.2 gave such detailed evidence. In my view, and on all the authorities to which I earlier made reference, there was thus a link between the appellant and the offence requiring him at least to give an explanation. In my judgment, therefore, the learned trial Judge was right in holding that the appellant had a case to answer.
This takes me to the second issue – whether the learned trial Judge was right in convicting on the evidence of 6th and 7th accused persons. It is pertinent to mention that after the ruling that appellant had a case to answer, appellant fully participated in the trial. He gave evidence in his own defence and his counsel rigorously cross-examined 6th and 7th accused persons. It is also pertinent to mention that the 6th and 7th accused persons were co-accused of the appellant at the time they gave evidence. They were not accomplices. The law as to the evidence of co-accuseds is set down in Section 177(2) of the Evidence Act. That Section reads as follows:-…………………….Q…………………….

“177(1) An accomplice shall be a competent witness against an accused person, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Provided that in cases tried with a jury when the only proof against a person charged with a criminal offence is the evidence of an accomplice, uncorroborated in any material particular implicating the accused, the Judge shall warn the jury that it is unsafe to convict any person upon such evidence, though they have a legal right to do so and in all other cases the court shall so direct itself.
(2) Where accused persons are tried jointly and any of them gives evidence on his own behalf which incriminates a co-accused the accused who gives such evidence shall not be considered to be an accomplice.”
This Section has been judicially considered in the case of Akpan Udo Ukut (1965)1 All N.L.R. 306. It was there held that, while subsection 1 of Section 177 imposes a statutory duty on the trial Judge to warn himself that it is unsafe to convict on the uncorroborated evidence of an accomplice, subsection (2) exempts the Judge from that duty in the case of a defendant who, testifying on his behalf in a joint trial, incriminates a co-defendant, and does no more, and it is open to the judge, and may be highly desirable upon the facts of the case, to advise the jury (or himself as to the jury) in regard to whether his evidence may be fit. As Hairamian, JSC. said at page 311,
“That way of reading Subsection (2), as a qualification designed to restrict the apparently all inclusive ambit of Subsection (1), removes the impossible and absurd results mentioned earlier in this judgment. In our opinion there was no intention to do more in Subsection (2). It was not meant to promote an incriminating defendant to a spotless angel or to endue him with a minibus of immunity; and it is open to the trial judge, and may be highly desirable upon the facts of the case, to advise the jury (or himself as the jury) in regard to his evidence as may be fit.”
It is therefore settled that the Judge is to caution or advise himself. He is not obliged to seek corroboration. The evidence of a co-accused, like the evidence of any prosecution witness who may have his own interest to serve, is that of a tainted witness. A Judge has to treat such evidence with great caution and satisfy himself before using it. It must be emphasised though that the requirement that the trial Judge should advise or caution himself is one of practice, not law.
What then was the evidence of the 6th and 7th accused persons on which the trial judge acted? In his defence, the 6th accused said as follows:-
“I know all the accused persons. Apart from Osagie Idahosa, I did not know any other prosecution witness in this case. I did not join the other accused persons in this case to murder the deceased.
On 10/12/83 at about 5.00p.m. I was at my sister’s stall at Ihiumin market when I saw the 2nd accused person and one Theophilous passing by. I asked both of them where they were going they told me that they were going to somewhere. Shortly afterwards when I went to urinate I saw the 2nd accused and Theophilous holding on to the same Osagie Idahosa. I went to the spot to meet them. At the spot I asked both the 2nd accused and Theophilous what wrong had been committed by Osagie Idahosa. Both 2nd accused and Theophilous told me that Osagie Idahosa had offended them and that they were taking him away to report him to his brother Monday Mozea the deceased…When I got home I saw the 1st accused person and one Harrison Ogbovoen and one Godwin Odigie my elder brother standing by a Passat Saloon Car discussing. One Nosakhare Oshodi and the 7th accused person were among them. While the 1st accused person, Harrison, Godwin Odigie, Nosakhare Oshodi and the 7th accused person entered the Passat Saloon heading for the residence of the deceased, the 2nd accused person gave me a ride on his push…………………….R…………………….

bicycle also heading for the residence of the deceased person. From where I was standing by the Passat Saloon Car outside I saw the deceased enter a room in the nearby house and locked up himself (sic) therein I saw the 1st accused person…from where I was standing outside breaking the door leading to where the deceased had locked himself up…shortly afterwards I saw Theophilous dragging the deceased on the ground by pulling him on the legs. The deceased was then finally dragged outside and placed on a spot about 16 feet away from me. While the deceased was on the floor outside I saw the 1st accused person, Theophilous and Harrison Ogbovoen beat the deceased with hands and legs. The 7th accused person who also came out with the 1st accused person and Harrison Ogbovoen did not beat the deceased instead he joined me where I was watching the Passat Car. I noticed that the beaten (sic) was severe and the deceased cried in pain and asked for water to drink. One boy whom I had not known before brought some water to the deceased but the 1st accused person refused that the water should not be given to the deceased. The 1st accused threw the water away. While the deceased was still sprawling on the ground the 1st accused person jumped up and hit the deceased hard on the head…At the time I and Godwin Odigie left for home, the deceased was
lying flat on the ground outside talking very inaudibly and gasping for breath…As for 7th accused, he testified, again in his defence, “I joined the others to pursue the deceased. Those of us who pursued the deceased were the 1st accused, Theophilous, Harrison, Godwin and myself in addition to the other boy whose name I cannot remember…The deceased was seized by Theophilous and 1st accused, Theophilous, Harrison, Godwin and the other boy began to beat the deceased. The deceased was beaten with fist and…I was outside when I saw Theophilous and 1st accused. Harrison and Godwin drag the deceased outside. While the deceased was lying on the floor outside the 1st accused person, Theophilous, Godwin, Harrison and the other boy began to beat the deceased by using fist and legs. One old man came, he is the 2nd P. W. in the case. The 2nd P.W. tried to prevent further beating of the deceased the oldman was pushed away, he fell, got up and sat at a place close by.”
As I mentioned earlier, the 6th and 7th accused persons were subjected to rigorous cross-examination by counsel to the appellant but were unshaken. The learned trial Judge, conscious of the tainted nature of their evidence, was cautious and wary in accepting it. In his own words, “interest to serve. I am aware that the court must be very cautious in the admission of such evidence. I have, however, warned myself of the danger in the admission of the evidence of a co-accused. As I said the 6th and 7th accused persons who made a clean breast of the whole case impressed me very much as witnesses of truth. They were unshaken during cross-examination.”
The learned trial Judge is the best judge of the demeanour of these co-accused persons and he believed their evidence. The Court of Appeal affirmed his conclusion and I see no basis for any disturbance. There is in my view a ring of truth in their testimony. If there was any need for corroboration, I would have said that the evidence of P.W.2 corroborated the testimony of 7th accused. P.W.2 was the old man who was pushed down. P. W.2 saw the assailants, Osagie Idahosa identified the appellant to P.W.3 as one of them; now 6th and 7th accused persons gave the gory details of the participation of the appellant. In my judgment therefore, appellant was properly convicted on the evidence of the 6th and 7th accused persons.
The final issue is the medical evidence. It is settled that it is the duty of the prosecution in a murder trial to establish the cause of death and of course successfully link it with the accused person. See R v Oledima 6 W.A.C.A. 202; Dickson Owusu Oyan v The Queen. In this case it is not disputed that the Doctor, P.W.1 did not know Monday Mozea before the alleged post mortem examination. Nor is there any dispute that Peter Mozea, who identified the deceased, did not give evidence. I agree, therefore, that the doctor’s testimony was nothing but hearsay on which the learned trial judge ought not to have acted. My learned brother Uwais, J.S.C. had in his judgment, which I had the privilege of seeing in draft, drawn attention to the case of Msughando v State (1980)2 N.C.L.R. 23, 31 C.A. in which the Court of Appeal…………………….S…………………….

held that failure to call the person who identified the deceased’s body to a Doctor is fatal to the conviction. He has also referred to Emetule v State S.C. 578 (1964) delivered by this Court on 29.1.65. (See Digest Vol. 10 at p.318) per Ajegbo, J.S.C., where a similar decision was given. The Emetule case has not been overruled by this Court although I must say that its facts are not wholly in line with the position in the instant case. In Emetule, the doctor who admitted him into the hospital was not the doctor who treated him or who performed the autopsy. The driver of the lorry who took the deceased to the hospital was not the person who identified the corpse to the doctor. Although like in Emetule the member of the family who identified the deceased to the doctor failed to give evidence, it seems to me that there was more uncertainty of the identity of the deceased in Emetule than in this case. This would probably account for the decision of this court in that case that the facts of death have not been established. Here it is not in dispute that Monday Mozea died. There is evidence that P.W. 2 and Uche Mozea took him to the Central Hospital and he died that day, 10/12/83. There is also evidence of P.W.3, the investigating Sergeant, which should not be treated lightly, that he found that Monday Mozea died and was transferred to the mortuary. I am of the view that it is not only desirable but essential that the person who identified the corpse to the Doctor should be called to give evidence. Whether the failure to call him should be fatal to the conviction ought to depend on the evidence available in the case and the general circumstances. Of course this is only relevant in those cases where death cannot be inferred from the circumstances, for if the latter is the case, medical evidence may not even be needed.
It is well settled that there are circumstances in which no medical evidence is necessary. There are mostly cases in which the deceased died on the spot or almost immediately after the attack and it is not difficult to know the cause of death. See Kano Dan Adamu v Kano Native Authority (1956) 1 F.S.C. 25: Hamman v State (1967) N.M.L.R. 23. It is also well settled that in other cases, medical evidence though desirable, is not essential as the cause of death can be inferred from the circumstantial evidence before the Court. See Oamhen v State (1984) 4 S.C. 1 at 5-6. It seems that the instant case is one in which the cause of death can be inferred from the circumstances. There is the evidence of P.W.2 that the deceased was beaten with fists, legs and iron rods by several assailants and that at the time his assailants left him, he could not rise from the ground. Then there was the evidence of 6th accused person that the deceased was beaten by the appellant and others with fist, legs etc. The appellant also jumped on him while he was lying sprawling on the ground. At the end of the beating, the deceased was said to be gasping for breath. He was taken to the Central Hospital that same 10/12/83 and he died that day.
I had advantage of reading in draft the lead judgment of my learned brother. Karibi-Whyte, J.S.C. in which he has very comprehensively dealt with all the issues raised before us in this appeal. For the reasons, I have stated in this judgment, I regret that I am unable to agree with his conclusions. In the result, this appeal is dismissed and the conviction and sentence previously passed on the appellant are further affirmed.

M. L. UWAIS, J.S.C.: The appellant was charged together with 6 others of the murder of one Monday Mozea, now deceased in the High Court of Bendel State before Okungbowa, J. sitting at Benin. At the close of the case for the prosecution, the learned trial Judge, without a submission of no case to answer on behalf of any of the accused persons, but seemingly in exercise of his powers under Sections 286 and 287 subsection (1) of the Criminal Procedure Law, Cap. 49 Laws of Bendel State, 1976 gave the following ruling, acquitting and discharging the 3rd accused person and calling upon the other accused persons to defend themselves of the charge against them-
“Ruling…………………….T…………………….

At close of the prosecution’s case, while one witness stated that no woman took part in the beating of the deceased another stated that the 3rd accused person merely stood by and watched the deceased beaten to death. I hold that these pieces of evidence are not sufficient for me to call upon the 3rd accused person Victoria Echocha to make a defence. The 3rd accused person is accordingly acquitted and discharged.
However, on the evidence before me I rule that there is sufficient evidence upon which the 1st, 2nd, 4th, 5th, 6th and 7th accused persons can be called upon to make their defence. V. Oviosu, Esq.; O. I. Adewoye, Esq. and O. Evbuomwan are accordingly called upon to lead their defences. Sections 286 and 287 subsection (1) of the Criminal Procedure Law, Cap. 49 provide, as relevant, as follows
“286. If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the defendant sufficiently to require him to make a defence the court shall, as to that particular charge, discharge him.
287 (1) At the close of the evidence in support of the charge if it appears to the court that a prima facie case is made out against the defendant sufficiently to require him to make a defence the court shall call upon him for his defence …
It is pertinent to point out that there is no complaint against this action of the learned trial Judge as none of the grounds of appeal before us, which will be stated in due course, raise any issue about it.
Now, the case for the prosecution at the trial is as follows. On the 10th December, 1983 a number of persons were seen by Stephen Ozerbogie, P.W.2, beating the deceased with sticks, iron rods, fists and legs. The time was evening. P. W.2 could not identify the assailants of the deceased. He attempted to hold one of the assailants but was pushed away by the assailant and he (P.W.2) fell down. P.W.2 appealed to the assailants to stop beating the deceased but they would not listen to him. Later on the assailants left, leaving the deceased sprawling on the ground. The deceased could not get up. P.W.2 together with a brother of the deceased hired a vehicle in which the deceased was conveyed to the Specialists Hospital, Benin City now called Central Hospital, Benin City. The hospital record showed that the deceased’s corpse was received on the same day at the mortuary of the hospital.
As part of the prosecution’s case, statements under caution were taken from all the accused persons. The full picture of what happened during and after the incident is contained in the statements made by the 2nd, 6th and 7th accused persons. These statements are exhibits 3, 6 and 7 respectively. For clarity of the facts it is necessary to quote the statements in detail. Exhibit 3 reads –
“On the 10 day of December, 1983 around 1 p.m. one boy by name Isoken came to me in our house and told me that I should escort him to his mother’s place to eat. The mother lives at Eke Street off St. Saviour Road, Benin City. We reached the house and ate. After we have eaten he still told me to escort him to his friend whom I don’t know. On our way going, we saw one girl Eghiose. There Isoken told me that, Eghiose abused him. From there, I called the girl and blamed her for abusing Isoken.
At the time, one boy by name Osagie Idahosa came and started insulting me. He said why should I stand with the girl. I told Osagie that I am settling Isoken and the girl. Osagie told me that I was talking nonsense. I asked to know where Osagie is staying. I was told he lives in the same area there. From there we left. On our way going, we saw one Theophilous who is also a friend to me. I explained to him how Osagie insulted me. Isoken told Theo that he learned from Osagie that Monday Mozea beat him sometimes ago.
Theophilous actually confirmed to us that Monday and another soldier came and harassed him because of this girl Eghiose. That he Theo was friending his girl friend Eghiose when he Monday was in training. When we were discussing this, we saw Osagie going in front of us with the girl Eghiose and one boy. From there I ran and graped (sic) Osagie, Theophilous also came and held the same Osagie by his trousers. At this time the girl ran away, the boy also ran to call Monday leaving Osagie in the hand of Theophilous. Isoken went to their house leaving me with Theophilous (sic) holding Osagie to report him to Monday. Not quiet (sic) a long time Monday ran to us together with the boy who went…………………….U…………………….

and called him. Monday told Theophilous to leave Osagie trousers. Theophilous refused to remove his hand from the trousers. At this time, Monday also held Theophilous trousers and sat down allowing his two brothers to beat Theophilous. I was settling them. Nobody among them beat me and I did not beat anyone of them. They were ordering me not to leave there when I was trying to go. At that time people at the Street came and settled them. After this settlement I went home. When I got home I was telling some women what happened to us. From there the women told me that Isoken came to the house and they have already left to the place of fight with Harrison the driver of a Passat including many boys inside the Passat. I don’t know the number of the Passat but I know that Harrison is the driver of the said vehicle for almost a month. He drives it for a different person. Among the people who went to fight Monday were Osarodion Okoro, Godwin, the driver of the passat.
Harrison and Isoken. When they came back from the fight, they told me in our house that they beat Monday and that Monday was crying that they should give him some water to drink. At the same time, they discussed that we should keep away from home so that Monday should not bring soldiers to arrest us. When I heard this, I left with Isoken to a party near our house.
After the party I returned to our house to sleep from there I saw a soldier who questioned me that who are you? I told him I came there to buy something. From there I escaped and ran to our village at Ugo Orhionwen Local Government Area. While at the village I was told that Monday died and that my mother was arrested so I went to my in-law’s house who later brought me to police station to explain myself to the police. I was not among those who fought Monday to death and Exhibit 6 states as follows:
“That on the 10th day of December, 1983 around 5 p.m. I was sitting down in my sister Dora’s shade market. There I saw Theophilous Aghonlahor and John Ekhator I asked them only to know where they were going. After small time I went to ease myself I saw John Ekhator from far away holding Osagie. Theophilous was also holding the same Osagie. They were dragging him to late Monday to report to him that Osagie offended them at that time, I went back to my sister’s shade. After some discussion with my sister, I had to follow Theophilous to where they were dragging Osagie to.
On reaching there in the house of Monday Mozea Theophilous told me that he sent John Ekhator to call Osarodion and others for him and that John has not returned. He further ordered me to go quickly and call Osarodion for him. I quickly entered a Tuko-tuko and on reaching No.2, Oghogho Street my father’s house I met Osarodion Okoro, I met John Ekhator there explaining the situation to Osarodion, Harrison Ogbevon the driver of the passat car Saturday whom I don’t know his father’s name Osakare Oshodi and Godwin Odigie. I reported he cried out that he needed some water to drink. One boy whom I do not know brought some water for Monday, Osarodion refused that Monday should not be given some water. At the same time he Osarodion jumped up and kicked (him) Monday on his head. I called Godwin there and told him that what they were doing was not good. Godwin regretted immediately and we left as quickly as possible leaving the rest of the people there. I don’t know the time the rest people left with their passat car. I have forgotten the number of the passat car. Godwin Osadiaye, Kingsley Osadiaye, Johnbul Okotie Oshodi were not among us during the fight at all. They did not participate at all. We were eight in number and not more than eight. It was Theophilous, Saturday and Osarodion who actually the situation (sic) to them that Monday and his brothers were fighting Theophilous. They quickly left in the passat car, John Ekhator carried me on bicycle so we all left for late Monday’s house.…………………….V…………………….

On reaching the house we met Monday and his brothers outside in front of their house at No. 33, Igbindun Street Benin City. Osarodion Okoro was the first person to come down from the passat car driven by Harrison Ogbovon. That time Monday’s brother’s ran away leaving late Monday alone. Monday ran to a nearby house, Osarodion and Saturday Theophilous pursued him to the said house. It was even Osarodion who broke the door of the house and they all entered and started to beat Monday in that room. They dragged him out. It (sic) held late Monday by the leg and forced him out. They beat him beat the Soja man Monday to death. All I know.
The reason of the fight was because of one girl Eghiose because she was girl friend to both Monday and Theophilous. After the incident I went to Ikoha Village today 6/2/83, I decided to report myself to police I met Osagie on the road he held me at Ekiose market. I begged one police man who escorted us to police station where I made statement to police.”
While exhibit 7 reads as follows-
“That on the 10/12/83 at about 4 p.m. I went to obstacle’s house (house). (sic) I have forgotten the name of his Street, but the Street is, off St. Saviour Road, Benin City. I met him in his room together with one Osarodion Okoro and wife and some of his sisters. I was in that room for not up to ten minutes when one boy whom I know as obstacle’s brother came with running and reported to obstacle that some people were fighting Theophilous whom I know as Theo. As the brother of Theo was reporting this matter, then one Harrison Oghevon also known as Agada came with a car a passat car Registration BD 3650 BB. The same Agada was the driver of the car. We entered the Passat car we were six inside the passat car. These includes obstacle also known as Godwin, Osarodion Okoro. Isoken Odigie a brother to Godwin, myself Saturday Izekor. The driver of the Passat, Agada and two others whom I do not know their names but if I see them I will surely identify them. While we were in the vehicle, on reaching Wire Road I wanted to drop because I live at Wire Road off St. Saviour Road Benin City. They refused they said I should accompany them to where some people were fighting Theo. The driver drove to Igbinidun street. Isoken was the person directing the driver. On reaching the scene we met Theo. We all dropped down from the vehicle and as we came out from the vehicle I stood by the vehicle while Osarodion Okoro and others who with me, in vehicle rushed into the house of the deceased. When the deceased saw them he ran through the back yard to a nearby house. These people Okoro Osarodion and others pursued him into the said house. The late Monday ran from one room to another in that house but they still pursued him. It was even Osarodion Okoro who broke the door of the house which enabled the rest of the people entered. They met the boy in one of rooms and all of them started to blow the boy. Osarodion carried one small Mortar pistle. They over powered the man and he started to shout for help.
I was the person who seized the motar pistle from Osarodion Okoro and threw it away. Osarodion Okoro and others drew the boy out from the room and he was still crying. I drew some water from the well and gave the victim to drink and the remaining water was poured on him. But for Okafo and others they insisted and wanted to put the victim inside the boots (sic) of the car. I refused. This boy became unconscious and could not talk again. That was the time we left him and entered the same Passat car and went away. When the boy was beaten, the owner of the house was there but was to enable (sic) separate these people from fighting the victim. I do not know Theo before but it was only on that day I saw him in action. He is black and fat and I understand he is judica. I also heard from them that the fight was because of a girl. I could have not joined them if I know that it was a girl who caused the fight. Infact I never know that the boy has died because when we left him he was still breathing, It was during the fight I was told that the victim is a soldier.”
The corpse of the deceased which had been deposited in the mortuary of the Central Hospital, Benin City on 10th December, 1983 was examined on 15th December, 1983 by a medical officer – P.W.1 who testified. P.W.1 said in his testimony that the corpse was identified to him by an uncle of the deceased called Peter Mozea. He concluded his evidence expressing the opinion that the death of the deceased was caused by cardio vascular shock or a failure of the peripineral circulation due to (1) excessive blood loss (2) severe pain.”…………………….W…………………….

The appellant as well as the 2nd, 4th, 5th, 6th and 7th accused persons gave evidence on their own behalf but called no witness whatsoever. The appellant denied ever beating the deceased. He said that he did not know the deceased. He denied knowledge of the incident that brought about the death of the deceased. He set up an alibi by saying that he was at his home between 3.00 p.m. and 6 p.m. on 10th December, 1983.
In their testimonies both the 6th and 7th accused persons incriminated the appellant by stating that the appellant was among a gang that attacked the deceased. The 6th accused person said –
“when the six of us got to the residence of law deceased at No. 33 Igbinidu Street we saw the deceased and his brother standing outside. The 1st accused person was the 1st person to come out of the car. I saw Theophilous on the other side of the road. The remaining 5 of us came out of the car and as soon as the deceased brothers saw us, they ran into the nearby bush. The deceased seeing what was happening also took flight and ran into a nearby house. I saw the 1st accused person (appellant) – Theophilous, and 7th accused person pursued the deceased into the nearby house where the deceased had ran into. Harrison Ogbevoen, Godwin Odigie, and Nosakhare Oshodi pursued the deceased brothers who had fled to the nearby bush. Earlier Harrison Ogbevoen had instructed me to stand by the Passat Saloon Car because there were some valuable property in the car. From where I was standing by the Passat Saloon Car outside I saw the deceased enter into a room in the nearby house and locked up himself therein. I saw the 1st accused person (appellant) from where I was standing outside breaking the door leading to where the deceased had locked himself up. When the 1st accused person succeeded in breaking the door leading to the room where the deceased was, I saw the other persons in the 1st accused person’s company enter into the room.
Shortly afterwards I saw Theophilus dragging the deceased on the ground by pulling him on the legs. The deceased was then finally dragged outside and placed on a spot about 16 feet away from me. While the deceased was on the floor outside. I saw the 1st accused person, Theophilous and Harrison Ogbevoen beat the deceased with hands and legs. The 7th accused person who also came out with the 1st accused person and Harrison Ogbevoen did not beat the deceased instead he joined me where I was watching the Passat Car. I noticed that the beating was severe and the deceased cried in pains and asked for water to drink. One boy whom I had not known before brought some water to the deceased but the 1st accused person refused that the water should not be given (sic) to the deceased. The 1st accused threw the water away. While the deceased was still sprawling on the ground the 1st accused jumped up and hit the deceased on the head. When I saw what was happening, I called on my brother Godwin Odigie who all the time took part in beating the deceased and told him that what he and others were doing was bad and that he should stop and proceed for home immediately. Godwin immediately retracted from the assault on the deceased and Godwin and I left for home leaving the remaining people and the Passat Car. At the time land Godwin Odigie left for home, the deceased was lying flat on the ground outside talking very inaudibly and gasping for breadth… (Italics ours).
The 7th accused gave a similar account of the incident. He testified as follows –
…I followed them to the scene of the crime. At the scene of the crime I joined the others to pursue the deceased. Those of us who pursued the deceased were the 1st accused (appellant), Theophilous, Harrison, Godwin and myself in addition to the other boy whose name I cannot remember. The deceased ran into room of a house and locked up himself there. A woman was by the door and pleaded with us that the deceased was not in the room. The 1st accused said that the woman was lying and so the 1st accused person forced the door open and immediately the deceased came out of the room to the parlour. The deceased was seized by Theophilous and 1st accused, Theophilous, Harrison, Godwin and the other boy begin to beat the deceased. The deceased was beaten with fists and legs. When I could not stand what the 1st accused person, Theophilous, Godwin and Harrison were doing and I could not stop them from beating the deceased I came out of the room. I was outside when I saw Theophilous, the 1st accused, Harrison and Godwin drag the deceased outside. While the deceased was lying on the floor outside the 1st accused, Theophilous, Godwin, Harrison and the other boy began to beat the deceased by using fist and legs. One old man came, he is P.W.2 in this case. P.W.2 tried to prevent further beating of the deceased, the old man was pushed away, he fell got up and sat at a place close by…I did not join the beating of the deceased.…………………….X…………………….

(Italics ours). At the close of the case for the defence, counsel that represented the parties addressed the trial court. In a considered judgment, the learned trial Judge accepted the evidence of P.W.!. He said in that regard –
“There is evidence before me that there is death and that the deceased died a violent death. There is evidence that the deceased died from injuries inflicted on him by his assailants. The cause of death as stated by 1st prosecution witness is consistent with the voluntary act of the deceased’s assailants as stated by the 2nd prosecution witness. I therefore hold that the deceased died from the voluntary act of the assailants.
On the evidence before me it can safely be inferred from the circumstances of the case and I so infer that the deceased’s assailants intended to kill the deceased or do grievous bodily harm to him”
Learned trial Judge examined the testimonies of the 6th and 7th accused persons, whom he referred to as eye-witnesses to the incident that took place at the scene of the crime. He observed that the part played by the 7th accused person in the commission of the offence was similar to that played by the 6th accused person. He found difference only in that the 7th accused person joined in pursuing the deceased to the room that the deceased entered, and held that the 7th accused person did not participate in beating the deceased both inside and outside the room. With regard to the weight to be attached to the evidence of the 6th and 7th accused persons, the learned trial Judge observed as follows- “The evidence of the 6th and 7th accused persons are those of co-accused who have an interest to serve. I am aware that the court must be very cautious in the admission of such evidence. I have, however, warned myself of the danger in the admission of the evidence of a co-accused. As I said earlier, the 6th and 7th accused persons who made a clean breast of the whole case impressed me very much as witnesses of truth. They were unshaken during cross-examination. Besides their evidence on oath were exactly in line with what they told the police on their earliest opportunity. I am not taking their statement to the police into consideration because their statements to the police are no evidence against the 1st accused person. I have merely referred to them to show how consistent they have been. I believe the 6th and 7th accused persons that the 1st accused person joined the other assailants to murder the deceased. I do not believe the 1st accused person”
Earlier on the learned trial Judge considered the evidence adduced against the 2nd. 4th, 5th, 6th and 7th accused persons. Relying on the testimonies of 6th and 7th accused persons, he came to the conclusion that the prosecution had failed to establish the case against all of them beyond reasonable doubt. They were accordingly, acquitted and discharged.
The defences of provocation and self-defence were considered by the learned trial Judge and were found by him not to avail the appellant. Consequently, the appellant was convicted of murder and was sentenced to death by the trial Court. The appellant appealed to the Court of Appeal from the decision of the High Court. His appeal in that Court failed and it was dismissed.
Appellant has appealed further to this Court. Three grounds of appeal were filed with his notice of appeal. The second ground of appeal thereof was abandoned in the course of oral argument before us. The ground was therefore struck out. An application had earlier been brought by learned counsel to the appellant, seeking leave to argue additional ground of appeal.
Whilst moving the application learned counsel to the appellant abandoned particular (a) to the proposed additional ground of appeal. Leave was granted for him to argue the additional ground of appeal without particular
(a) thereof. The 2 original grounds of appeal read as follows-
“1. The learned Justice (sic) of the Court of Appeal erred in law when they held that there were no fundamental and material inconsistences between the statement of the 6th and 7th accused persons to the Police and their evidence in Court as erroneously held by the Learned Trial Judge.…………………….Y…………………….

Particulars

(a) The Justices of the Court of Appeal were wrong to hold that after carefully reading the statements made by the 6th and 7th accused persons to the police and their evidence in Court failed to appreciate that both the 6th and 7th accused were given evidence with a view to saving their necks from the gallows. The Justices of the Court of Appeal ought to have held that the mere fact that the trial Judge said in his judgment that he had warned himself was not sufficient to meet the requirement of the law.
(b) The Justices of the Court of Appeal was (sic) wrong to hold that the mere fact that both the 6th and 7th accused persons were not cross-examined on their statements to the police, the appellant automatically lost the protection afforded him by the law.
(c) The Justices (sic) of the Court of Appeal and the trial court ought to have stressed that great caution as distinct from legal phrase of I have warned myself ought to have been greatly exercised in a case of this nature which involved sudden free for all fight.
2. …
3. The Learned Trial Judge and the Justices of the Court of Appeal erred in law in finding the appellant guilty of murder when the prosecution had failed to prove all the essential ingredient (sic) of murder beyond reasonable doubt.
Particulars
(a) Four witnesses who gave evidence at the preliminary investigation before the committing Magistrate and whose names were on the back of the deposition were not called as witnesses at the High Court and the Defence Counsel was therefore deprived of the opportunity of questioning them.
(b) It was impossible therefore for the Learned Trial Judge and the Justices of Court of Appeal to say with certainty what effect the evidence of these four witnesses would have had on the case if they had been present to give evidence at the trial. Some of the witnesses were arrested and detained by the police and the Defence Counsel had no opportunity of putting questions to the witnesses relating to the cause of their fight, how or why they were arrested and detained and what was the duration of such detention.”
The additional ground of appeal argued reads-
“The learned Trial Judge and the Honourable Justices of the Court of Appeal erred in law to have convicted the accused/appellant of murder, when all the circumstances of the case did not lead with irresistible (sic) force to his guilt or when all the elements of murder were not proved beyond reasonable doubt at the Court of trial.
Particulars
(a) …
(b) There was also no evidence that the body of the deceased was identified by any witness for the prosecution who knew the deceased before his death before the medical officer performed the autopsy and this omission was fatal to the case of the prosecution. The mere fact that the medical officer said in his evidence that the body of the deceased was identified to him by one Peter Mozea was not a sufficient identification in murder cases.
(c) Although the learned trial Judge said in his judgment that the deposition of the deponents tendered as Exhibits in evidence (sic) should not be looked into, yet the Judge and the Honourable Justices of the Court of Appeal relied upon the said exhibits and thereby came to a wrong conclusion.”
A brief of argument was filed on behalf of the appellant. The brief has classified the issues for determination under three heads, viz-
“(a) Whether the trial Judge and Justices of the Court of Appeal were right to have convicted the appellant solely on the uncorroborated evidence of the 6th and 7th accused who were co-accused at the Court of Trial.…………………….Z…………………….

(b) Whether the trial Judge was justified in accepting the depositions of four deponents as exhibits during the proceedings when there was no foundation laid in accordance with the provisions of section 34(1) of the Evidence Act.
(c) Whether the failure to identify the body of the deceased to the medical officer before autopsy by a witness who knew the deceased before his death was not fatal to the case of the prosecution,”
Arguing issue (a), it is submitted in the appellant’s brief that the appellant’s conviction was based entirely on the evidence of the 6th and 7th accused persons. In support of the submission, the brief refers to the following observation which was made by the Court of Appeal –
‘There is no dispute whatsoever that without the evidence of the 6th and 7th accused, the appellant could not have been convicted for the murder of Monday Mozea.’
In my opinion this submission is misconceived. Apart from the evidence of the 6th and 7th accused persons, there was the evidence of P.W.2 which the learned trial Judge accepted. P.W.2 was an eye-witness to the attack on the deceased. He clearly described the nature of the attack on the deceased. He was only unable to give the identity of the deceased’s assailants; the testimonies of the 3rd, 6th and 7th accused persons, however, corroborated the evidence of P. W.2 by establishing the identity of the appellant as well as the identities of the other assailants. It follows, therefore, that although the Court of Appeal was not right in stating that without the evidence of the 6th and 7th accused persons the appellant could not have been convicted (since the identity of the appellant could not have been established). The learned trial Judge did not rely solely on the evidence of the 6th and 7th accused to convict the appellant. There was the evidence of P. W.3 as to the identity of the appellant which the trial Judge believed.
Learned Counsel for the appellant submitted further that the 6th and 7th accused persons went into hiding after the deceased was attacked and were in hiding for two and three months respectively before they were arrested. He pointed out that their statements to the police, exhibits and 7 respectively, were not made at the earliest opportunity to the police. This, it was argued, was not considered by the learned trial Judge when he held, erroneously, that the statements agreed with the testimonies of the 6th and 7th accused persons. Learned counsel said that although the learned trial Judge observed that he should be cautious in accepting the evidence of the 6th and 7th accused persons being co-accused, and had warned himself before accepting the evidence; the warning which the learned trial Judge administered upon himself was not sufficient to satisfy the requirement of the law since the 6th and 7th accused persons were in hiding for months and were persons who had some purpose of their own to serve. Their evidence, he canvassed, should have been corroborated and without the corroboration it was not possible to hold that the appellant committed the offence. He supported his argument with the following cases – William Idahosa & Anor. v. The Queen (1965) N.M.L.R. 85; R v. Prater 44 C.A.R. 83 and Akpan Udo Ukut & Ors. v. The State (1965) 1 All N.L.R. 306 at p. 311.
Learned Counsel to the appellant failed to refer in his brief to the law that requires that the evidence of the 6th and 7th accused persons needed to be corroborated or that in accepting their testimonies the learned trial Judge was obliged to warn himself as canvassed. The requirement that a trial Judge should warn himself before accepting the uncorroborated evidence of an accomplice to convict is contained in section 177 of the Evidence Act. So also the provision that corroboration is not necessary before a conviction can be based on the evidence of a co-accused. The section reads-…………………….AA…………………….

“177 (1) An accomplice shall be a competent witness against an accused person, and conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Provided that in cases tried with a jury when the only proof against a person charged with a criminal offence is the evidence of an accomplice, uncorroborated in any material particular implicating the accused, the Judge shall warn the jury that it is unsafe to convict any person upon such evidence, though they have a legal right to do so and in all other cases the court shall so direct itself.
(2) Where accused persons are tried jointly and any of them gives evidence on his own behalf which incriminates a co-accused the accused who gives such evidence on his own behalf shall not be considered to be an accomplice.”
It is clear from the foregoing provisions of the Evidence Act, that it is where the trial court is relying only on the evidence of an accomplice to convict that the requirement to warn itself and look for corroboration in material particular becomes mandatory. The 6th and 7th accused persons, though accomplices to the appellant at the time of committing the murder of the deceased, were in fact co-accused at the trial before the High Court. When they testified to defend themselves they did not do so as prosecution witnesses. Their testimonies were the testimonies of co-accused and not of accomplices.
With regard to the provisions of sub-section (2) it is not very clear, reading the subsection on its own if it would be necessary for a trial Judge to warn himself where a co-accused gives evidence which incriminates another co-accused. However, this Court had interpreted the provisions of Section 177 and held per Bairamian, J.S.C., in Akpan Udo Ukut & Ors. v. The State (supra) at pp.311  A.G. and 314 as follows –
“……. the draftsman of our section 177 (of the Evidence Act) did not draft a single provision on an accomplice called by the prosecution, but drafted two subsections, after speaking of an accomplice merely in sub-section (1) which apparently includes any and every accomplice went on in sub-section (2) to prove that a defendant testifying as aforesaid shall not be considered to be an accomplice, with a terseness which has given rise to misunderstandings due to the mistake of treating sub-section (2) as if it stood in isolation.
The subsections must be read together. Subsection (1) imposes a statutory duty on the trial Judge to warn the jury (or himself as the jury) that it is unsafe to convict solely on the uncorroborated evidence of an accomplice, although they have the right so to do if they wish, and the omission to give that warning when needed usually has the consequence of acquittal on appeal unless the appellate court in a given case thinks that no substantial miscarriage of justice was occasioned by the omission. Subsection (2) exempts the Judge from that statutory duty in the case of a defendant who testifying on his behalf in a joint trial incriminates a co-defendant; that duty does not extend to him, and the omission to give that warning in his case does not necessarily carry that consequence. Subsection (2) in stating that such a defendant shall not he considered to be an accomplice, means no more than this- that he shall not be so considered for the purposes of statutory requirement in subsection (1). That way of reading subsection (2), as a qualification designed to restrict the apparently all inclusive ambit of subsection (1) removes the impossible and absurd results mentioned earlier in this judgment. In our opinion there was no intention to do more in subsection (2): it was not meant to promote an incriminating defendant to a spotless angel or endue him with a nimbus of immunity; and it is open to the trial Judge, and may he rightly desirable upon the facts of the case, to advise the jury (or him.w.4 as the jury) in regard to his evidence as may be fit. ”
Thus it is prudent for the trial Judge to remind the jury or himself of the need for caution in regard to any witness, including a defendant, who has an interest to serve. Subsection (2) does not debar the Judge from treating a defendant’s evidence as the case may require. There is no hard and fast rule, but the Judge is expected to act with good sense, and the appellate court may think that his lack of caution led to a substantial miscarriage of justice in a given case.”
(parenthesis and emphasis mine).…………………….AB…………………….

In the present case learned trial Judge did not ignore the aforementioned requirement. The 6th and 7th accused persons though accomplices to the appellant, testified as co-accused, and the learned trial Judge warned himself as follows-
“The evidence of the 6th and 7th accused persons are those of co-accused who have an interest to serve. I am aware that the court must be very cautious in the admission of such evidence. I have, however, warned myself of the danger in the admission of the evidence of a co-accused. As I said earlier, the 6th and 7th accused persons who made a clean breath of the whole case impressed me very much as witnesses of truth.”
The submission made by learned counsel to the appellant is that the warning was insufficient. As decided in Akpan Udo Ukut & Ors. v. The State supra, there can be no hard and fast rule as to the warning which the trial Judge is to give to himself when relying on the evidence of a co-accused who had been an accomplice. What is expected of the trial Judge is that he should apply good sense in accepting such evidence. I think the learned trial Judge had done so in this case. Though corroboration of the evidence of the 6th and 7th accused persons is not statutorily required, there is such corroboration in the evidence of P.W.2, which makes it probable that they told the truth. The fact that they went into hiding does not detract their evidence against the appellant from being the truth. They incriminated themselves as well in their testimonies and did not deny being present at the scene of the incident, as was done by the appellant. In my opinion the warning administered by the trial Judge in believing the evidence of the 6th and 7th accused persons was sufficient and did not give rise to a miscarriage of justice in convicting the appellant of the murder of the deceased.
The second issue for determination (issue (b) is in my view devoid of merit. Learned counsel to the appellant complains that the depositions taken in Magistrate’s Court during a preliminary investigation into the case were wrongly relied upon, by the learned trial Judge, in holding in the ruling quoted at the beginning of this judgment, that the appellant had a case to answer. These depositions were exhibits 13, 13(a), 13(b), 13(c) and 13(d). They were admitted in evidence at the trial at the instance of the prosecution who could not trace the witnesses who made the depositions during the preliminary investigation held at Magistrate’s Court, Benin City. The depositions were tendered, at the trial by P.W.5 who was the Principal Registrar of that court. The depositions were in fact not relied upon in convicting the appellant because they were rejected by the learned trial Judge at the on-set of his judgment. This is what he said of the depositions-
“First, I would like to deal with the question of the depositions of witnesses who would not be produced to give evidence before this Court. I must say that I am not satisfied with the procedure adopted by the prosecution in the tendering of the depositions. I do not hold the view that a trial for murder should be done by mere tendering of depositions of witnesses who were not subjected to cross-examination at the lower court and worst still when some of the accused persons were at a stage of the preliminary investigation not defended by counsel. I am of the strong view that the depositions Exhibits 13, 13(a), 13(b), 13(c) and 13(d) should not be looked into and should not form part of the evidence against the accused persons. I, therefore, ignore them.”
It is to be noted that at the time the learned trial Judge made his ruling in which he held that the appellant as well as the 2nd, 4th, 5th, 6th and 7th accused persons should be called upon to make their defences, he stated in the ruling that he was doing so on the evidence before him. What was this evidence? Was it the depositions alone or there was other evidence in addition? It is to be remembered that the prosecution called a total of 5 witnesses. One of these witnesses was P.W.2 who was an eye-witness to the attack on the deceased. When he was cross-examined by counsel for the 3rd and 7th accused persons at the trial, he positively said that he did not see a woman amongst B the assailants of the deceased. 3rd accused person was a woman. Furthermore, the statement made by the 3rd accused person was tendered in evidence as exhibit 2. She denied, in the statement, taking part in attacking the deceased. Therefore when the learned trial Judge said in his ruling that there was no sufficient evidence to call upon the 3rd accused person to defend herself he was not relying on the depositions to do so. There was really no sufficient evidence from the evidence admitted by him to call upon her to defend herself.…………………….AC…………………….

The third and final issue for determination (issue (c) raises an important point. Learned Counsel to the appellant argued that although the medical officer- P.W.1. who allegedly performed the post-mortem examination on the body of the deceased, said that the corpse was identified to him by Peter Mozea, who was an uncle of the deceased, Peter Mozea was not called as a witness. Learned counsel to the appellant, therefore, submitted that the conviction of the appellant cannot stand, because the cause of deceased’s death could not have been established since there was no connection or nexus between the corpse examined by P.W.1 and the deceased. He cited in support R. v. Laoye, 6 WACA 6, and Inyere Akpeunye v. The State (1976) 11 S.C. 269 at pp. 276 to 277.
Replying, learned Senior State Counsel for the respondent argued that there was proper identification of the deceased’s corpse even if Peter Mozea was not called to testify. He said that it was not necessary but only desirable that Peter Mozea should have been called as a witness. He referred to the evidence of P.W.3 who was the investigation police officer. P. W.3 testified that one Uche Mozea reported to him a case of murder at Esigie Police Station. Benin City. He said that Uche Mozea told him that the deceased had been taken to the Central Hospital. Benin City. P.W.3 said he went to the hospital in company of Uche Mozea and on getting there he discovered that the deceased had already died and his body had been deposited in the hospital’s mortuary. Uche Mozea was not also called as a witness for the prosecution. In spite of that, learned Senior State Counsel submitted that there was proper identification of the corpse to P.W.1 and cited, in support of his submission, Inyere Akpuenya v. The State (supra) at p.270.
Now in a trial where the prosecution intends to establish the cause of death by relying on a medical report, it is necessary to call evidence which will establish that the body examined by the doctor or medical officer concerned was definitely the body of the deceased. The standard of proof in a criminal case is stringent. It is that the case against the appellant must be proved beyond reasonable doubt. Therefore, where death does not occur contemporaneously with or within a short time of the infliction of wound on the deceased, to enable the court draw an inference that the deceased died as a result of the wound so inflicted, medical evidence establishing that the deceased’s death was caused by such wound becomes indispensable. The identification, by a relation of the deceased or persons who knew the deceased  when he was alive, to the doctor or medical officer that is to perform the post-mortem examination becomes essential unless the doctor or medical officer is a person that knew the deceased when he was alive. The identification becomes necessary so that the medical report may be connected to the deceased beyond reasonable doubt. It is a notorious fact that many dead bodies are received at hospitals’ mortuaries. At any given time there may be numerous bodies. Medical Officers are always called upon to perform autopsy on the bodies. The possibility of confusion in examining the appropriate body cannot reasonably be ruled out. Hence the necessity in a criminal case to prove beyond reasonable doubt that the body examined by a doctor or medical officer is in fact the body of the deceased, whose death is the subject of the trial.
In the present case Peter Mozea who identified the body of the deceased did not give evidence. The evidence of the medical officer that the body was identified to him by Peter Mozea as that of the deceased is undoubtedly hearsay, and therefore inadmissible in the absence of the evidence of Peter Mozea. Similarly, the evidence of P.W.3, the Investigation Police Officer that when he got to the hospital he found that Monday Mozea had died and the body had been deposited in the mortuary, does not establish beyond, reasonable doubt that the body examined by P.W.1 was in fact the body of the deceased. P.W.1 did not say that P.W.3 identified the body to him. Even if he said so, there was no clear evidence that P.W.3 knew the deceased when the latter was alive. Moreover, if it was Uche Mozea that identified the corpse to P. W.3, Uche Mozea was not called as a witness. In that case, his identification of the deceased to P.W.3 would have been hearsay and the repetition of the identification to P.W.1 by P.W.3 would have rendered such identification as double hearsay. I therefore think that the point on identification is well taken by learned counsel to the appellant. The point was raised at the trial, by counsel for the 7th accused person, in the course of his address. He cited the decision of the Court of Appeal in Msughando v The State (1980) 2 NCR. 23, but the learned trial Judge did not advert to the submission in his judgment. In the case cited, the Court of Appeal (per Ademola, J.C.A.) has this to say at pp.31-32 thereof-…………………….AD…………………….

“Learned Counsel for the appellant however submitted that the person named on the medical report as having identified the body to the doctor who performed the post-mortem examination was not called to give evidence to connect the medical report with the person named as the deceased. This ground of appeal, to my mind, is a good one. The learned trial Judge himself in the course of his judgment had this to say –
“The post-mortem examination was performed on May 20th, 1976 and the report showed that one Adamu Salihu identified the corpse of the deceased. It is strange that the prosecution did not think it important to call this Adamu Salihu. I must however mention here that the defence did not question the identity of the deceased and I further hold that the identity of the victim allegedly shot by the first accused is not in dispute in view of the testimonies of the first and third witnesses for the prosecution.”
With great respect to the learned trial Judge he seems to have overlooked one important fact: that the plea of not guilty recorded by him on behalf of the appellant means that every allegation of fact contained in the charge before the court is denied by the appellant including, for the purpose of this case, the identity and the name of the person allegedly killed by him. The fact that the first three prosecution witnesses named the person killed as Kaduna Sule in their testimony does not necessarily mean that the medical officer who made the medical report performed a post-mortem examination on Kaduna Sule. The medical officer does not know the person upon whom he has performed a postmortem examination. The mere fact that he inserted the name of a person, i.e. Kaduna Sule, on the medical report is a piece of hearsay evidence and that hearsay evidence cannot be admissible. The witness (sic) who supplied the information as to the identity of the deceased to the medical officer in the making of the medical report must of necessity be called. To the extent that this has not been done the report is not a strong piece of evidence against the appellant, whatever it may contain. It does not establish beyond any shadow of doubt the identity of the person allegedly shot by the appellant. In my view this ground of appeal must succeed.
Similar view had earlier been expressed by this Court, per Ajegbo, J.S.C. in Emetulu v The State SC.578/1964 (unreported) judgment delivered on the 29th January, 1965 and is contained on pp.318-319 of Volume 10 of the Digest of the Supreme Court Cases 1956-84 edited by Chief Gani Fawehinmi. Therein, learned Justices stated thus-
“Learned Counsel for the appellant has argued, in the two additional grounds of appeal filed by him, and for which he sought and obtained leave to argue, that there was no evidence to connect that Alfred Abaka Erife who was hit on the head with a plank and taken to hospital was the person who was said to have died in the hospital and on whose corpse a post-mortem examination was performed. In other words, counsel argued that there was not sufficient proof of the death of Alfred Abaka Erife; that the story of his admission to the hospital, his death and the postmortem examination lacked continuity. We are inclined to agree with him for several reasons. In the first place, the doctor who admitted him into the hospital was not the doctor who treated him or who performed the autopsy. Secondly, the driver of the lorry who took him to hospital was not the person who identified the corpse to the doctor and, thirdly, not one of the ‘members of the family’, who identified him to the doctor at the Hospital when he was alive, was called to give evidence. And lastly, the person who identified the corpse to the doctor at the post mortem was not produced to give evidence of the identification. If these were just omissions on the part of the prosecution, they were very serious omissions indeed’… (Italics ours).
These authorities have brought out the necessity to call, as witness for the prosecution, the person that identifies the corpse of a deceased to a doctor before a post-mortem examination is performed. It is not just sufficient to call the doctor as a witness. In the present case the evidence of Peter Mozea became the more important in view of the fact that although the deceased died on 10th December, 1983, the post-mortem examination was not performed till the 15th December, 1983, that is, five days after it had been taken to the mortuary. I am satisfied that there was no proof of the identity of the corpse on which P.W.1 performed the autopsy. Consequently, the evidence of P.W.1 should have been rejected. His post-mortem examination cannot be connected to the deceased. It follows, therefore that the proof of the cause of deceased’s death cannot be based on the autopsy performed by the medical officer.…………………….AE…………………….

The decision of this Court in Inyere Akpuenya v The State (supra) must be distinguished from the decisions in Msughando v The State (supra) and Emewlu v The State (supra). In Inyere Akpuenya’s case, the person that identified the corpse to the doctor was called as P.W.1. He gave evidence that he identified the corpse to all the Police Officers involved in the investigation of the case, but denied being present when the post-mortem examination was performed by the doctor. This was submitted, on appeal to this Court, to have been a contradiction of the evidence of the doctor who said that it was P.W.1 that identified the corpse to him. This Court, per Obaseki, Ag. J.S.C. (as he then was), held as follows-
“We are unable to see any positive conflict in the evidence.
The 1st prosecution witness’s evidence on the point reads-
The Police later asked the members of my family to convey the corpse of the deceased to the Police Station at Agbor. From the Police Station, the corpse of the deceased was conveyed to the public mortuary at Agbor.
I was not present when post mortem examination was performed”
It would appear that he was not led in evidence on the question of identification of the corpse to the doctor. We do not see how the doctor could tolerate his presence when carrying out his examination he not being on his staff.
The doctor, (2nd prosecution witness) was emphatic on the point that it was John Edobor the son of the deceased who identified the body of Edobor Ekhoraghon deceased to him. This is borne out by his evidence which reads:
“The corpse of the deceased was brought to the public mortuary on the 12/2/74. The dead body of the deceased was identified to me by one John Edobor the son of the deceased. I saw the man who identified the corpse of the deceased to me in the mortuary and he actually identified the dead body of the deceased before I performed post-mortem examination on it.”
This evidence was accepted by the learned trial Judge in his judgment the material portion of which reads:
“I believe and accept the evidence of the doctor who is the 2nd prosecution witness in this trial, when he said that the corpse of the deceased was identified to him.”
We also agree with the observation made by the learned trial Judge that, apart from the evidence, there is sufficient evidence to infer beyond reasonable doubt that the deceased died from the stab wound inflicted on him by the appellant (see Tonara Bakuri v. The State, 1965 N.M.LR. 163).
We therefore find no substance in this submission.
The issue for determination in the case is not based on the question of the person who identified the corpse to the doctor not being called as a witness, but on whether the identifier having been called had contradicted the testimony of the doctor that it was him that identified the corpse to the doctor. The Court found that there was no conflict between the evidence of the identification witness and that of the doctor.
This is not however the end of the matter. The evidence accepted by the trial Judge shows that the deceased was beaten to a state of unconsciousness. The attack on the deceased took place in the evening. P.W.1 testified that from the hospital record, the corpse of the deceased was received at the mortuary of the hospital on the 10th December, 1983. From these facts it is reasonable to infer and I hold that the deceased died within few hours of the attack on him. P.W.2 testified that the deceased was beaten by his assailants with sticks, iron rods, fists and legs. But 6th and 7th accused said that the deceased was attacked with fists and legs. The learned trial Judge…………………….AF…………………….

believed P.W.2 and the 6th and 7th accused persons. At no time was the evidence of P.W.2 held to be in conflict with the evidence of the 6th and 7th accused persons as to the weapon employed in attacking the deceased. But suppose one favours the appellant by limiting the attack on the deceased to the use of fists and legs only: Is a brutal attack by many persons using fists and legs not enough to cause death. From the account given by P.W.2, the 6th and 7th accused persons on the nature and the duration of the attack on the deceased to the extent that he became helpless, I am of the view that there is ample evidence from which it can be inferred that the deceased who died shortly after the attack, in fact, died as a result of it. I therefore hold that the wicked and merciless attack on the deceased by the appellant and his accomplices caused the death of the deceased – See Kano Dan Adamu v. Kano N.A., 1 F.S.C 25; Tonara Bakuri v. The State (1965) NMLR 163; and Bwashi v. The State (1972) 6 S.C 93.
But for the fact that I am dissenting from the lead judgment this would have been the end of my judgment. I am, regrettably, unable to agree with the decision reached by the majority for the following reasons. It is significant that neither the appellant’s grounds of appeal – both original and additional – nor the issues for determination based on these grounds (both quoted above) raise the issue whether or not there was sufficient evidence at the close of the prosecution’s case to justify the trial Judge calling upon the appellant to enter his defence. The golden rule of this Court has always been that where a point is not properly raised as a ground of appeal or as an issue for determination based on a ground of appeal, the point will be disregarded as it goes to no issue – N.I P.C. v. Thompson Organization, (1969) 1 All N.L.R. 138 at p. 142 Ebba v. Ogodo, (1984) 1 S.C.N.LR. 372 at p.374 and Eyesan v. Sanusi, (1984) 1 S.C.N.LR. 353 at p. 360. Ordinarily, therefore, the point should have been ignored. But since it is being considered by the majority, I find it necessary to express my reasons for dissenting.
Reliance has been placed on the decision of this Court in Wahabi Onasanya Mumuni & 13 Ors. v. The State, (1975)6 S.C. 79; (1975) 1 All N.L.R. (Pt. 1) at p. 17, to hold that where at the close of the case for the prosecution there is no sufficient evidence upon which an accused person could be called upon to defend himself against the charge preferred against him, the trial Court is bound to discharge the accused even if no submission of no case to answer is made on his behalf and the Court cannot continue with the trial and then rely on the evidence of co-accused to convict the accused. It is being held further that in the event of such conviction an appellate court is bound to discharge the accused. The decision in Mumuni’s case (supra) alluded to the English authorities of R. v. Power, (1919) 14 Cr. App. R. 17; R. v. Hogan, (1922) 16Cr. App. R. 182 and R. v. Abbot, (1955) 2 All E.R. 899 among others, before coming to the conclusion that the West African Court of Appeal decision in R. v. Ajani, (1936) 3 W.A.C.A. 3 is no more the law in Nigeria as regards what a trial Judge should do at the close of the prosecution’s case. It is significant to mention that neither Mumuni’s case nor any of the English decisions advert to the provisions of Section 186 and 187 of the Criminal Procedure Law of Bendel State (quoted above) or any law with similar provisions.
With respect, it will be over-stretching the decision in Mumuni’s case to say that it applies to a situation where no submission of no case has been made on behalf of the accused at the close of the prosecution’s case. Mumuni’s case was concerned with a situation where a submission of no case had been made and the trial Judge overruled the submission. This is what Irikefe, J.S.C. (as he then was) said on P. 317 of (1975)1 All N.L.R. (Part 1)
“Where, however, there is no case for a co-accused to answer at the close of the prosecution’s case, he should be acquitted by the trial Judge of the offence charged at that stage of the trial. As Lord Goddard L.C.J. observed in R. v. Abbot, (supra), (1955) 1 All E.R. 899) overruling the submission (of no case to answer) in those circumstances and calling upon such a co-accused to testify in his defence, the co-accused is, in effect, being asked to prove his innocence. Under our law, it is not for an accused person to prove his innocence. By virtue of Section 22(4) of the Constitution of the Federation (1963), he is presumed to be innocent of the offence charged until the prosecution have proved beyond reasonable doubt that he is guilty of that offence. In the light of the foregoing, it is our view that R. v. Ajani (supra) (1936) 3 W.A.C.A. 3) is no longer good law.” (parenthesis and italics mine).…………………….AG…………………….

It is clear from this excerpt that the dictum in Mumuni’s case pertains to a case where a submission of no case to answer has been made. The point of law argued in that case was also based on the submissions of no case to answer made on behalf of the accused persons concerned in the case. Any dictum on the position of the law as regards the position where no submission of no case to answer was made is, with the greatest respect, bound to be obiter. It is significant and worthy of note that the decision in Mumuni’s case made no reference whatsoever to the provisions of sections 286 and 287 of the Criminal Procedure Act (Law) quoted at the beginning of this judgment. Section 286 deals with both the situation where a submission of no case is made at the end of the case for the prosecution and the circumstance when no submission of no case to answer has been made.
I think it is necessary to quote in extenso the decision in Ajani’s case (supra) at p.7 thereof-
“(The law as it stands) appears to amount to this, that in cases where the prosecution has made out no case against an accused, but in spite of that he is called upon by the Court to enter upon his defence instead of being discharged:
(a) If at the close of the case for the prosecution his Counsel, if he was represented, made no submission, he can be properly convicted upon evidence subsequently given.
and (b) If at the close of the case for the prosecution, he being unrepresented and probably completely ignorant of procedure, made no submission, he can be properly convicted upon evidence subsequently given.
and (c) If at the close of the case for the prosecution he or his Counsel made a submission which was wrongly overruled then, if either he or his Counsel took any part in the subsequent proceedings, an appeal against a conviction resulting from those proceedings will fail.
But (d) If at the close of the case for the prosecution he or his counsel made a submission which was wrongly overruled and then refused to take any part in the subsequent proceedings, he be ‘quite safe’ i.e. apparently certain to get a possible conviction quashed on  appeal.”
(Italics mine)
This was the position of the law in 1936. The Criminal Procedure Act, Cap. 43 was enacted in 1945 and it came into force on 1st June, 1945. It is this Act that is now applicable in Bendel State as the Criminal Procedure Law, Cap. 49 of the Laws of Bendel State of Nigeria, 1976; Sections 286 and 287 of which are the same as those of the Act.
The West African Court of Appeal which decided Ajani’s case was not itself happy with the position of the law as it stood then on a submission of no case to answer. The Court made the following remarks and observation in that regard at p.7 thereof-
“On to the horns of what a dilemma does this cast an accused or a defending Counsel? Should he stay quiet he may meet with unjust conviction on the uncontradicted evidence of a co-accused when one question by way of cross-examination would have demonstrated the falseness of the evidence. Should he put that question he is throwing away certain safety, if his view as to the submission is right.
If this state of the law appears to make it difficult for an accused in England, it seems to amount to a positive hardship in this country where so many of the accused are illiterate, where trials of several accused together are frequent and where Judges owe a special duty to protect their interests. Bur it is for the legislature and not for this Court to effect an alteration of the law, and we feel bound to give effect to the law as we find it.”
(Italics mine).…………………….AG…………………….

Perhaps the legislature had this call of the West African Court of Appeal in mind when it enacted Sections 286, 287 and 288 of the Criminal Procedure Act, Cap. 43 in 1945! By that enactment the position is now as follows
“286.  If at the close of the evidence in support of the charge it appears to the Court that a case is not made out against the defendant sufficiently to require him to make a defence the court shall, as to that particular charge, discharge him.
287. (1) At the close of the evidence in support of the charge if it appears to the court that a prima facie case is made out against the defendant sufficiently to require him to make a defence the court shall call upon him for his defence and
(a) if the defendant is not represented by a legal practitioner, the court shall inform him that he has three alternatives open to him, namely –
(i) he may make a statement, without being sworn, from the place where he then is; in which case he will not be liable to cross-examination; or
(ii) he may give evidence in the witness box, after being sworn as a witness; in which case he will be liable to cross-examination, or
(iii) he need say nothing at all, if he so wishes, and in addition the court shall ask him if he has any witnesses to examine or other evidence to adduce in his defence and the court shall then hear the defendant and his witnesses and other evidence, if any; and
(b) If the defendant is represented by a legal practitioner, the court shall call upon the legal practitioner to proceed with the defence.
(2) If the defendant or his legal practitioner states that he has witnesses to call but that they are not present, the court may, in the circumstances set forth in sections 186 to 193 take the steps therein mentioned to compel their attendance.
288. Failure to comply with the requirements of paragraph (a) in section 287 shall not of itself vitiate the trial provided that the court called upon the defendant for his defence and asked him if he had any witnesses and heard the defendant and his witnesses and other evidence, if any.”
Furthermore, the innocence of the accused was strengthened by Section 22 subsection (4) of the 1963 Constitution the provisions of which are the same as those of Section 33 subsection (5) of the 1979 Constitution. The latter provides-
“(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”
From the foregoing it appears to me that what has changed is the position of the accused as stated under paragraphs (c) and (d) on p.7 in Ajani’s case (supra) and not the position of an accused who either himself or his counsel has not made a submission of no case to answer. In my view the position as stated in paragraphs (a) and (b) of page 7 of Ajani’s case (supra) (which was not the subject of the criticism of the West African Court of Appeal) has not been affected by the provisions of either Section 286 of the Criminal Procedure Code Act, Cap. 43 (Cap. 49 of Bendel State of Nigeria Laws, 1976) or Section 33 subsection (5) of the 1979 Constitution. It seems to me Irikefe, J.S.C. (as he then was) was to some extent right when he observed that the decision in Ajani’s case is no more the law. That is as it applies to a submission of no case to answer either by the accused or his counsel. But this, with respect, cannot be right in respect of an accused who has not made a submission of no case to answer, as in the present case. Whether a submission of no case to answer is made or not, what Section 287(1) requires is that if at the close of the case for the prosecution it appears to the trial Court that a prima facie case has been made against the accused sufficiently for him to make a defence, then, the trial court should call upon the accused in the terms, as the case may be, stated under paragraphs (a) and (b) of Section 287 subsection (1) to make his defence.
What constitutes a prima facie case was stated in 1962 by the Practice Direction issued by the Queen’s Bench Division of the High Court of England – See (1962) 1 W.L.R. 277. The Practice Direction states in part as follows-…………………….AH…………………….

“A submission that there is no case to answer may properly be made and upheld:
(a) when there has been no evidence to prove an essential element in the alleged offence;
(b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict upon it.”
This direction was cited with approval, it seems, by this Court in Ibeziako v. Commissioner of Police (1963)1 All N.L.R. 61 at p. 68. In the present case it has not been contended and there is no ground to suggest that the evidence of the prosecution had been discredited under cross-examination. There was evidence at the close of the case for the prosecution that the deceased was attacked by the appellant in concert with others and that the deceased died soon after the attack. The evidence to link the appellant with the attack of the deceased, which I agree is a vital ingredient of the offence charged, was given by P.W.3 – the Investigation Police Officer, who said under cross-examination by Counsel representing the appellant at the trial as follows-
“I arrested the 1st accused person after in the midnight of 10th/11th of December, 1983. Osagie Idahosa had identified him and told me in the presence and to the hearing of the 1st accused (that 1st accused?) was one of those who killed the deceased.”
In George Godwin Daboh v. The State, (1977)5 S.C. 197 at p. 210 Sir Udo Udoma, J.S.C. stated as follows, of a case to answer-
“On the other hand it is well settled that in a case of a trial by jury, no less than in a trial without a jury, however slight the evidence linking an accused person with the commission of the offence charged might be, the case ought to be allowed to go to the jury for their findings as judges of fact and their verdict.”
Consequently, I am of the view that a prima facie case had been made against the appellant at the close of the prosecution’s case and the learned trial Judge was right when he called upon the appellant to enter his defence.
For all the above reasons, I hold that this appeal has failed and it should be dismissed. Accordingly, it is hereby dismissed. The decision of the Court of Appeal which confirmed the conviction of the appellant of murder is hereby affirmed.

A. G. O. AGBAJE, J.S.C: The appellant Osarodion Okoro was charged along with six other persons with the murder of one Monday Mozea at Benin City in the Benin Judicial Division Bendel State on 10th December, 1983. They were tried in a Benin High Court presided over by Okungbowa J. In his judgment dated 25th February, 1986 only the appellant was found guilty of the offence charged and was sentenced to death. The appellant appealed unsuccessfully against his conviction and sentence to the Court of Appeal, Benin Division. He has now lodged a further appeal against his conviction and sentence to this court. Briefs of Arguments were filed by counsel for both parties in this court. In the appellant’s brief of arguments filed on his behalf by G. E. Oaikhena Esq. the issues arising for determination in this appeal have been identified by his counsel as follows:
“QUESTIONS FOR DETERMINATION
(a) Whether the trial judge and Justices of the Court of Appeal were right to have convicted the appellant solely on the uncorroborated evidence of the 6th and 7th accused who were co-accused at the Court of Trial.
(b) Whether the trial judge was justified in accepting the depositions of four deponents as Exhibits during the proceedings when there was no foundation laid in accordance with the provisions of Section 34(1) of the Evidence Act?
(c) Whether the failure to identify the body of the deceased to the medical officer before autopsy by a witness who knew the deceased before his death was not fatal to the case of the prosecution?
In the Alternative
(d) Whether the death of the deceased was caused by the alleged act of the appellant?”
According to the brief filed for the respondent by Michael I. Edokpayi, Esq. Senior State Counsel, the issues arising for determination in this appeal are:-…………………….AI…………………….

“ISSUES FOR DETERMINATION
(a) Whether the appellant was rightly convicted and sentenced to death for the offence of murder on the evidence of the 6th and 7th Accused persons who were co-Accused persons and affirmed by the Learned Justices of the Court of Appeal.
(b) Whether the depositions of the four deponents whose names appeared at the back of the Information were properly tendered by the prosecution and rightly admitted in evidence by the Learned trial Judge.”
Both counsel agreed that these issues arise from the grounds of appeal filed by the appellant in this case. In the circumstances I do not think it will be necessary to refer to the grounds of appeal again.
The thrust of the arguments of counsel for the appellant in respect of issue (a) identified in the appellant’s brief of argument is based on the following submission of counsel, namely:-
“It is apparent on the Record that at the close of the case of the prosecution there was no iota of evidence against the appellant.
However, the trial Judge ruled on page 18 of the Record that the accused persons had a case to answer..”
In effect counsel is saying that the learned trial Judge wrongly called on the appellant to make his defence to the case for the prosecution which in fact the appellant did by going into the witness box to defend himself. Counsel has submitted that in the circumstances the evidence of the 6th and 7th accused persons in the witness box after the close of the case for the prosecution against the appellant was not sufficient to ground the conviction of the appellant. It is however the submission of counsel for the respondent that the appellant could be and has been properly convicted on the evidence of the 6th and 7th accused persons.
I think the proper starting point in the consideration of the submissions of counsel on the point at issue is to find out whether counsel for the appellant in his submission to us was right in saying that at the close of the case for the prosecution no prima facie case has been made against the appellant by the prosecution. The following passage from the judgment of Dahiru Musdapher J.C.A. in the Court of Appeal in this case in which Omo and Ogundare JJ.C.A. concurred lent support to the view that no prima facie case has been made by the prosecution against the appellant at the close of the case for the prosecution. The passage is as follows:-
“There is no dispute whatever that without the evidence of 6th and 7th accused, the appellant could not have been convicted for the murder of Monday Mozea. The evidence that, Osagie Idahosa told P.W. 3 in the presence of the appellant, that the appellant joined other assailants to kill Monday, may not be sufficient to ground a conviction for murder.”
There is no doubt that at the close of the case for the prosecution no evidence from any of the witnesses for the prosecution including P.W.2, besides P.W.3 Barnabas Shagana Sergeant No. 86942, an Investigating Police Officer in this case, linked the appellant with the offence charged in this case. It is to be noted that the appellant in a statement to the police in connection with this case said as follows:-
“That I did not know any person at all and I did not fight when they were fighting I was not there. I never even know if there was a fight yesterday. I live in the same compound with Godwin and we are even related. Godwin is a friend to Theophilous. Four days ago Theophilous met me in my from and told me that two soldiers met him along St. Saviour Road, Benin City caned him with Koboko and removed N47.00 from him. He did not mention the name of the soldiers. I inquired from him if he has reported the matter to the police he said yes.
I was surprised to see police and soldiers in my room waking me from sleeping. Not quite a month when I parked to that house I was formally living in Compound No. 27, Republic Street along Upper Sakpoba Road Benin City. I do not know any thing about the death of Monday at all.”
It is evident that nowhere in this statement did the appellant make any incriminating statement against himself. It is trite law that the statements of the other accused persons were not evidence against him in this case.…………………….AJ…………………….

As I said it was only the Investigating Police Officer 3rd P.W. Sergeant Shagana who said anything which could connect the appellant with the offence for which he stood trial and this is what this witness said in this regard even in cross examination:
“I arrested the 1st accused person after in the midnight of 10th/11th of December. 1983. Osagie Idahosa had identified him and told me in the presence and to the hearing of the 1st accused that he was one of those who killed the deceased.”
Osagie Idahosa was not a witness in this case. P.W.3 Sergeant Shagana did not say whether or not the appellant denied the allegations which Osagie Idahosa made against him. Assuming the appellant did not deny the allegations and this is the highest one can put the case for the prosecution based as it were on the evidence of P.W.3, the question then will be what is the evidential value of that evidence?
The right to silence permits the accused person’s silence on questions against or concerning him. The right to silence is one of the civil liberties in the legal system of this country and corner stone of our judicial system. Even one of the fundamental human rights of an accused person under the Constitution of the Federal Republic of Nigeria 1979 is that no person who is tried for a criminal offence shall be compelled to give evidence at the trial. See Section 33 Sub-section 11 of the 1979 Constitution. It follows therefore that no accused person could be convicted for not talking but perhaps the prosecution could call the court’s attention in appropriate cases to the accused person’s silence where evidence linking him to the offence charged exists. Then the irresistible inference of guilt from that evidence linking the accused person with the offence charged might be abundantly clear.
In the case of Hall v. Regina (1971) 1 A.E.R. 322 at 324 Lord Diplock delivering the opinion of the Privy Counsel stated clearly the position of the law on the point I am talking about as follows:-
“It is a clear and widely-known principle of the common law in Jamaica, as in England, that a person is entitled to refrain from answering a question put to him for the purpose of discovering whether he has committed a criminal offence. A fortiori he is under no obligation to comment when he is informed that someone else has accused him of an offence. It may be that in very exceptional circumstances an inference may be drawn from a failure to give an explanation or a disclaimer, but in their Lordships’ view silence alone on being informed by a police officer that someone else has made an accusation against him cannot give rise to an inference that the person to whom this information is communicated accepts the truth of the accusation.”
See also on the same point R. v. Christie (1914) A.C. 545 at 554 which was quoted and applied in Hall v. Regina (supra).
As I have just stated Osagie Idahosa who made the allegation against the appellant was not called as a witness in this case. The prosecution could well have relied upon Osagie Idahosa’s evidence as evidence of the guilt of the appellant of the offence charged, if Osagie Idahosa was called as a witness. However he was not called. The net result of the evidence P.W.3 gave is the failure of the appellant to say anything when Osagie Idahosa accused him of having committed the offence. But the authorities are clear and I have stated them above that that will not do. The conclusion I reach therefore is that Dahiru Musdapher J.C.A. was right in his judgment when he said that without the evidence of the 6th and 7th accused the appellant could not have been convicted of the murder of Monday Mozea. But however when he said that the evidence that Osagie Idahosa told P.W.3 in the presence of the appellant that the appellant joined other assailants to kill Monday might not be sufficient to grand his conviction for murder I am satisfied that he has not put the position of the law on the point quite accurately. The position on the authorities is that that evidence could not be sufficient to grand a conviction for murder.
I am therefore satisfied from what I have been saying above that counsel for the appellant was right in his submission to us that at the close of the case for prosecution no prima facie case had been made by the prosecution against the appellant. So in the words of the Queen’s Bench Divisional Court. Lord Parker C.J. Ashworth and Fenton Atkinson J.J. in a Practice direction dated 9th February, 1962 reported in (1962) 1 All E. R. 448 given to Magistrates no reasonable tribunal could convict the appellant on the evidence of P.W.3 even if the court believed the evidence. So in my judgment the prosecution had not made any case for the appellant to answer.…………………….AK…………………….

At the close of the case for the prosecution on 18/1 1/85 and without any no case submission being made to him the learned trial judge said as follow:-
“At this stage this case is adjourned to 29/11/85 for ruling and for further hearing.”
On 29/11/85 the learned trial Judge true to his word gave the following ruling:-
“At close of the prosecution’s case, while one witness stated that no woman took part in the beating of the deceased another stated that the 3rd accused person merely stood by and watched the deceased beaten to death. I hold that these pieces of evidence are not sufficient for me to call upon the 3rd accused person Victoria Exhoha to make a defence. The 3rd accused person is accordingly acquitted and discharged.
However, on the evidence before me I rule that there is sufficient evidence upon which the 1st, 2nd, 4th, 5th and 7th accused persons can be called upon to make their defence. V. Oviosu Esq., O. I. Adewoye Esq. and O. Evbuomwan Esq. are accordingly called upon to lead their defence. In view of other pressing matters this case is adjourned to 11/12/85 for defence to open.”
It is evident therefore that the learned trial Judge had ruled that the appellant in this case along with 4 other accused persons had a case to answer and from what I have been saying so far the learned trial Judge had wrongly called upon the appellant to make his evidence when in fact the prosecution had not made a prima facie case against him.
I must remind myself that no no case submission was made on behalf of the appellant and that following the ruling of the learned trial Judge on the case presented by the prosecution the appellant and the other accused persons went into the witness box to defend themselves. It now remains for me to look at the authorities and find out whether in the circumstances as I have just stated them the evidence of the 6th and 7th accused persons was legal evidence against the appellant or not. In Mumuni & 13 ors. v. The State (1975) 6 S.C. 79 this court having reviewed English authorities and Nigerian authorities on the point said as follows at page 109:-
“Where, however, there is no case for a co-accused to answer at the close of the prosecution’s case, he should be acquitted by the trial Judge of the offence charged at that stage of the trial. As Lord Goddard, L.C.J., observed in R v Abbott (supra), overruling the submission in those circumstances and calling upon such a co-accused to testify in his defence, the co-accused is, in effect, being asked to prove his innocence. Under our law, it is not for an accused person to prove his innocence. By virtue of the provisions of section 22(4) of the Constitution of the Federation, he is presumed to be innocent of the offence charged until the prosecution have proved beyond reasonable doubt that he is guilty of that offence. In the light of the foregoing, it is our view that R v. Ajani (supra) is no longer good law.”
Prominent among the English authorities referred to is the case of R. v. Abbott (1955) 2 ALL E.R. 899 at 902. There Lord Goddard who presided over the Court of Appeal England had this to say about the decision in R. v. Power 14 C.A.R. 17:-
“What the court said in that case was that if the case did go to the jury, then the evidence given by the prisoners respectively was part of the sum of the evidence in the case, and that this court when asked to quash a conviction might take the whole of the evidence into account. They did not say that the court must, but they said this court might, take the whole of the evidence into account. They certainly did not say that, if there was no evidence given against one of two or more prisoners, the learned judge could simply leave the case to the jury to see whether when the case for the defence opened one or other of the prisoners would support the case set up by the prosecution.”
(Italics ours) .
Later on in his judgment in the case Lord Goddard said as follows:-
Another point which it seems to me to be very necessary to take into consideration in deciding the present case is this, that with all respect it cannot be right for a judge to leave a case to the jury where the whole of the structure on which the prosecution has been built up to that moment collapses and falls, for that is what happened in this case.…………………….AL…………………….

Once it was shown that neither Mrs. Warburton nor the appellant could have taken part in the telephone conversation on which the whole of the case for the prosecution was built, it was not only the duty of the judge but it was the prisoner’s right to say that the case against the prisoner had collapsed, and that he was not called on to answer the case any further. If it were said to the prisoner that he should go into the box and satisfy the jury that he did not have any of this money, that would be putting the onus on the prisoner.”
(Italics ours).
It is stated in Mumuni v. The State (supra) that R. v. Ajan; 3 W.A.C.A. 3 is no longer good law. One needs only to state what R. v. Ajani decided at page 7 in order to appreciate it that it stood out in strong relief against the decision in Mumuni v. The State. This is what R. v. Ajani said on the point now under consideration:-
“And that is how the law stands today, and it appears to amount to this, that in cases where the prosecution has made out no case against an accused, but in spite of that he is called upon by the Court to enter upon his defence instead of being discharged:-
(a) If at the close of the case for the prosecution his counsel, if he was represented, made no submission, he can be properly convicted upon evidence subsequently given.
and (b) If at the close of the case for the prosecution, he, being unrepresented and probably completely ignorant of procedure, made no submission, he can be properly convicted upon evidence subsequently given.
and (c) If at the close of the case for the prosecution he or his counsel made a submission which was wrongly overruled then, if either he or his counsel took any part in the subsequent proceedings, an appeal against a conviction resulting from those proceedings will fail
But (d) If at the close of the case for the prosecution he or his counsel made a submission, which was wrongly overruled, and then refused to take any part in the subsequent proceedings, he will be ‘quite safe,’ i.e. apparently certain to get a possible conviction quashed on appeal.
On to the horns of what a dilemma does this cast an accused or a defending counsel! Should he stay quiet he may meet with unjust conviction on the uncontradicted evidence of a co-accused when one question by way of cross-examination would have demonstrated the falseness of the evidence. Should he put the question he is throwing away certain safety, if his view as to the submission is right.
If this state of the law appears to make it difficult for an accused in England, it seems to amount to a positive hardship in this country where so many of the accused are illiterate, where trials of several accused together are frequent and where Judges owe a special duty to protect their interest. But it is for the legislature and not for this court to effect an alteration of the law, and we feel bound to give effect to the law as we find it.”
So if R. v. Ajani had remained good law and no no case submission was made on behalf of the appellant in this case and, more importantly, the appellant had gone into the witness box to defend himself after the ruling of the learned trial Judge wrongly calling upon him to defend himself the evidence which the 6th and 7th accused persons gave in the witness box would be legal evidence against him. But Mumuni v. The State (supra) had decided it that that is no longer the case and this court has held in the recent case of Ohuka & ors. v. The State Part 86 (1988) 4 N.W.L.R Page 36 coram Kayode Eso, Adolphus Godwin Karibi-Whyte, Chukwudifu Akunne Oputa, Abdul Ganiyu Olatunji Agbaje and Ebenezer Babasanya Craig that where no case to answer had been made by the prosecution against an accused person no evidence given in the proceedings subsequently after that ruling would be evidence in any event against the accused person.
The conclusion I reach therefore is that the learned trial Judge and the Justices of the Court of Appeal were in error to have relied on the evidence of the 6th and 7th accused persons in the witness box to convict the appellant when the prosecution had not made a prima facie case against the appellant.…………………….AM…………………….

What I have just said is enough to dispose of the appellant’s appeal in his favour in my judgment but since the other issues raised by the appellant were argued before us I will touch on them.
I am satisfied that counsel for the appellant was right in his submission to us that the medical evidence as to the cause of death of the deceased in this case had not been linked with the death of the deceased for the person who identified the corpse upon which the medical officer performed his post mortem operation to him was not called as a witness in this case. However I am satisfied that in the circumstances of this case cause of death of the deceased could be inferred from the other evidence led in this case. The evidence showed quite clearly that the deceased died as a result of the injuries he received at the hands of those who attacked him on that fateful day.
Even if the evidence of the 6th and 7th accused persons was legal evidence against the appellant, which of course it is not in my judgment, since the evidence was that of co-accused persons it would be necessary for the trial Judge to warn himself of the danger of acting on that evidence and furthermore to look for corroborative evidence of that evidence. Co-accused persons are essentially accomplices but because of Section 177 subsection 2 of the Evidence Act which says that where accused persons are tried jointly and any of them gives evidence on his own behalf which incriminates a co-accused the accused who gave such evidence shall not be regarded to be an accomplice, the evidence of a co-accused is not regarded as that of an accomplice. But the modern trend is that such evidence if believed and corroborated is sufficient to justify the conviction of a co-accused. See R. Ibe 4 W.A.C.A. 131 at 132. The position therefore is that such evidence although not regarded as that of an accomplice is treated when it comes to the question of basing the guilt of an accused person on it in the same manner as that of an accomplice.
In the Queen v. Omisade & 17 ors (1964) N.M.L.R. 67 this court held, albeit as regards evidence of an accomplice, that in considering the extent of corroboration required, the Judge must ask himself whether or not he believes the evidence of the accomplice, and if he believes the evidence, then he must warn himself that it is unsafe to convict on it alone; having done this he must then look for some additional evidence not being that of another accomplice, rendering it probable that the story of the accomplice is true and that it is safe to act upon it. The Justices of the Court of Appeal relying on the case of the Queen v. Samailla & ors. in Re Adamu Maiduguri (1961) All N.L.R 673 held that the 6th and 7th accused persons corroborated the evidence of each other’s.
The doctrine of mutual corroboration of evidence of accomplices was discussed at length in the case of Director of Public Prosecutions v. Kilbourne (1973) 1 All E.R. 440.
That case recognises it that the doctrine of mutual corroboration of evidence of accomplices exists in certain cases but it is also noted that the doctrine is not at all of universal application. It is said that the latter is the case because of the proposition that one accomplice cannot corroborate another. See R. v. Noakes (1832) 5 C. & p.326; R. v. Gay (1909) 2 Cr. App. Rep. 327; R v. Pratter (1960) 2 Q.B. at 465 and R. v. Omisade (supra).
In the case of D.P.P. v. Kilbourne (supra) reference was made to the speech of Lord Simons L.C. in Davies v. Director of Public Prosecutions (1954) 1 All E.R. 507 at 513 a House of Lords decision where the Lord Chancellor said with reference to accomplices as follows:-
“The remaining questions, therefore, on the main issue are-(B) and (C): What is an ‘accomplice’ within the rule? And has the rule, on the proper construction of the word ‘accomplice’ contained in it, any application to Lawson in the present case? There is in the authorities no formal definition of the term ‘accomplice’: and your Lordships are forced to deduce a meaning for the word from the cases in which X, Y and Z have held to be, or held liable to be treated as, accomplice. On the cases it would appear that the following persons, if called as witnesses for the…………………….AN…………………….

prosecution, have been treated as falling within the category:- (i) On any view, persons who are participes criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact (in felonies) or persons committing, procuring or aiding and abetting (in the case of misdemeanors). This is surely the natural and primary meaning of the term ‘accomplice.’ But in two cases, persons falling strictly outside the ambit of this category have, in particular decisions been held to be accomplices for the purpose of the rule: viz, (ii) receivers have been held to be accomplices of the thieves from whom they receive goods on a trial of the latter for larceny R. v. Jennings (1912).7 Cr. App. R. 242, R. v. Dixon (1925) 19 Cr. App. R.36 and (lit) when X has been charged with a specific offence on a particular occasion, and evidence is admissible, and has been admitted of his having committed crimes of this identical type on other occasions, as proving system and intent and negativing accident: in such cases the court has held that, in relation to such other similar offences if evidence of them were given by parties to them, the evidence of such other parties should not be left to the jury without a warning that it is dangerous to accept it without corroboration: R v. Mohammed Farid (1945) 173 L.T. 68.9d
Now going back to the speech of the Lord Chancellor in Director of Public Prosecutions v. Kilbourne (supra) I refer to page 454 where he said:-
“I do not therefore believe that there is a general rule that no persons who come within the definition of accomplice may be mutually corroborative. It applies to those in the first and second of Lord Simonds L.C’s categories and to many other cases where witnesses are not or may not be accomplices. It does not necessarily apply to all witnesses in the same case who may deserve to be categorised as ‘accomplice’. In particular it does not necessarily apply to accomplices of Lord Simonds L. C.’s third class, where they give independent evidence of separate incidents, and where the circumstances are such as to exclude the danger of a jointly fabricated story.”
The Lord Chancellor in that speech said that although he did not believe that the proposition that one accomplice could not corroborate another was a general rule, he said that the rule would apply to the 1st & 2nd of Lord Simonds L.C.’s categories of accomplices which I have reproduced above. The first category of accomplice according to Lord Simonds comprises persons who are participes criminis in respect of the actual crime charged whether as principals or accessories before or after the fact or persons committing, procuring or aiding and abetting. The 6th & 7th accused persons in the case in hand clearly fall within this category. They are accused by the prosecution of having committed the offence charged and the learned trial Judge in his judgment recognised this fact and even went on to say in his judgment that they made a clean breast of the whole case. So the proposition that one accomplice cannot corroborate another will, going by the authorities I have just referred to above apply to their evidence. It cannot be said that the 6th and 7th accused persons gave independent evidence of separate incidents. Nor can it be said that the circumstances surrounding the evidence they gave were such as to exclude the danger of a jointly fabricated story. In short the 6th & 7th accused persons do not belong to the third category of accomplices, in Lord Simonds L. C.’s classification of accomplices which category consists of persons who fall strictly outside the ambit of persons who are participes criminis in respect of the actual offence charged, but whose evidence relates to the commission by the accused person of crimes of the identical type of the one charged on other occasions with a view to proving system and intent and negativing accident. And it is to this category of accomplices that the doctrine of mutual corroboration of evidence of accomplices applies as it is made clear in D.P.P. v. Kilbourne (supra).
Accordingly I am satisfied that the Court of Appeal was in error in applying the doctrine of mutual corroboration of evidence of accomplices whilst considering the evidence of the 6th & 7th accused persons.
As regards their evidence the proper direction on the authorities should have been that the evidence of 6th accused person cannot in law corroborate the evidence of the 7th accused person.
The conclusion I would reach therefore is that there is nothing in this case corroborative of the evidence of 6th & 7th accused persons independently of their own evidence in the witness box. The fact that each of the 6th & 7th accused persons was consistent in the statement he made to the Police and the evidence he gave in the witness box cannot have been corroborative evidence of the evidence they gave in the witness box. Since there is no corroboration of the evidence of 6th and 7th accused persons this is another reason why the conviction and sentence of the appellant cannot in my judgment stand based as it were on the evidence of the 6th and 7th accused persons.…………………….AO…………………….

The point raised by counsel for the appellant as to whether the learned trial Judge was right in accepting the depositions of four deponents as Exhibits in this proceedings goes to no issue in this appeal for the learned trial Judge having accepted the deposition later on in these proceedings reversed himself and held that he had wrongly accepted the depositions in evidence and further more ruled that he has expunged the depositions from the proceedings of this case. The respondent had not challenged the reversal by the learned trial Judge of his earlier decision accepting the depositions in evidence. As a matter of fact if the depositions had been in evidence in this case no reasonable tribunal could ever have held that no prima facie case has been made against the appellant. It was because the depositions had been expunged from the proceedings in this case by the learned trial Judge and that course of action has not been challenged either in the court below or before us that I am able to come to the conclusion I reach in this case that no prima facie case has been made against the appellant.
For the above reasons and in addition to the fuller reasons given in the lead judgment of my learned brother Karibi-Whyte J.S.C. which I have had the privilege of reading in draft I too allow the appellant’s appeal, set aside is conviction and sentence by the trial court which were affirmed by the Court of Appeal. Benin Division and in their place enter a verdict of acquittal and discharge.

E. B. CRAIG, J.S.C.: I have had the advantage of a preview of the judgment of my learned brother, Karibi-Whyte. J.S.C. and I agree with his analysis of the fact, his reasoning and the conclusions reached by him. I would adopt the judgment as mine.
For the reasons so lucidly set out in the lead judgment, I agree that this appeal succeeds and it is allowed. The conviction and sentence passed on the appellant by the trial court and confirmed by the lower court are hereby set aside.
It is ordered that the appellant shall be acquitted and discharged.

Appeal Allowed.

Appearances

F. H. EduvieFor Appellant

AND

M. I. Edokpayi, Senior State Counsel, Bendel State Ministry of JusticeFor RespondentBURDEN OF PROOFMURDER

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