OKOAGWU AZU VS THE STATE
July 9, 2025ALHAJI YUSUF DAN HAUSA & CO. LTD VS PANATRADE LTD
July 9, 2025Legalpedia Citation: (1993) Legalpedia (SC) 35141
In the Supreme Court of Nigeria
Mon Jul 12, 1993
Suit Number: SC.38/1989
CORAM
MUHAMMADU LAWAL UWAIS JUSTICE, SUPREME COURT
ADOLPHUS GODWIN KARIBI-WHYTE JUSTICE, SUPREME COURT
PHILLIP NNAEMEKA-AGU JUSTICE, SUPREME COURT
ABUBAKAR BASHIR WALI JUSTICE, SUPREME COURT
UCHE OMO JUSTICE, SUPREME COURT
PARTIES
ADEBAYO ADEYEMI APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellant and the deceased lived in adjacent houses at Nos. 10/12 Femi Adebule Street, Abule Ijesha, Yaba. The balconies of their flats faced each other on the first floor of each house. On the 21st February, 1986 at about 9p.m, an alarm was raised as to the presence of armed robbers in the street and gun shots were fired. The deceased and two others, who had gone out to verify the safety of her husband who had gone to purchase fuel, were hit by shots fired from the Appellant’s gun whose intention of firing the shot was to scare the armed robbers. They were rushed to the hospital but the deceased died on arrival and the Appellant was consequently charged for the murder of the deceased person. At trial, the bullets recovered from the deceased body were not tendered in evidence neither was there any ballistic evidence to show that the bullets recovered from her came from the same source. At the end of the trial, the Appellant was found guilty of manslaughter and sentenced to a term of three years imprisonment. Dissatisfied with the decision of the High Court, the Appellant appealed to the Court of Appeal which confirmed his conviction and sentence. It is against this decision that the Appellant has appealed to this Court.
HELD
Appeal Allowed
ISSUES
– At a stage of the submission of no case to answer by counsel to the appellant could the learned trial Judge ask the appellant to defend himself on a charge of manslaughter while discharging him of the offence of murder? – Is the charge against the appellant proved beyond reasonable doubt in the light of the evidence adduced?
RATIONES DECIDENDI
CRIMINAL TRIAL – APPROPRIATE MODE OF TRIAL WHEN AN ACCUSED PERSON CHARGED WITH MURDER IS GUILTY OF A LESSER OFFENCE
“Where an accused person is charged with murder, it would, in the interest of Justice, be better that he goes through the “psychological agony” of a full trial on the serious offence of murder, and subsequently be found guilty and convicted of the lesser offence of manslaughter, rather than that he be discharged of the more serious offence of murder on a no-case submission, when a verdict of the lesser offence is probable at the end of the trial.”PER. U. OMO, J.S.C.
EXTRA-JUDICIAL STATEMENT OF AN ACCUSED PERSON – SCOPE OF AN EXTRA -JUDICIAL STATEMENT TENDERED DURING THE HEARING OF A MATTER
“The extra-Judicial statement of an accused person which is rendered at the hearing is part of the evidence called by the prosecution and will therefore be looked upon from the standpoint of the onus on them to prove their case beyond reasonable doubt, an onus that never shifts.” PER P. NNAEMEKA-AGU, J.S.C
NO CASE SUBMISSION – EFFECT OF A DISCHARGE ON A NO CASE SUBMISSION
“The point of law involved is whether a court of trial can after discharging an accused person of an offence upon the submission that he had no case to answer in respect of such charge, proceed to trial and conviction for a lesser offence arising from such charge? There is no doubt that if this question is answered in the negative quaesitocadit, the trial Judge having no jurisdiction, the subsequent trial after the discharge on a submission of no case to answer is a nullity.”PER A. G. KARIBI-WHYTE, J.S.C
NO CASE SUBMISSION – IMPLICATION OF A NO CASE SUBMISSION MADE BY A COUNSEL
“When counsel makes a submission that the accused has no case to answer, the meaning is that in law, there is no evidence on which, even if believed, the court can convict – See Ibeziako v. C.O.P. (1963) 1 All NLR. 61; (1963) SCNLR 99: Ajidagba v. IGP (1958) 3 FSC. 5; (1958) SCNLR 60”. PER A. G. KARIBI-WHYTE, J.S.C
CONVICTION ON A LESSER OFFENCE – CONDITIONS TO BE FULFILLED FOR AN ACCUSED PERSON TO BE CONVICTED FOR A LESSER OFFENCE
“It is useful to understand that for an accused to be convicted for a lesser offence, the following conditions must be fulfilled. First the elements in the offence charged and those in the lesser offence for which the accused is convicted must be the same.
Secondly, the evidence adduced and the facts found must be insufficient for conviction in respect of the offence charged, but at the same time support thelesser offence in respect of which the accused was convicted. – See R v. Adokwu 20 NLR. 103, at p.105,where Bairamian J. said,
“If he is to be convicted under section 179 of the Criminal Procedure Ordinance of a lesser offence, this must be on facts embraced in the particulars of the greater offence charged, otherwise he cannot properly be deemed to have notice of the lesser offence.”
Thirdly, the lesser offence in respect of which the accused was convicted is usually not charged. This is clearly envisaged by the expression in sub-section (1) italicized waiving the requirement of a formal charge. Finally, the accused must be tried on the more serious offence.” PER. A. G. KARIBI-WHYTE, J.S.C
EVIDENCE – DUTY OF THE COURT WHERE THE EVIDENCE BEFORE IT SUPPORTS A LESSER OFFENCE THAN THE ONE THE ACCUSED IS CHARGED WITH
“Where the evidence supports a lesser offence only, the court should either discharge the accused of the serious offence charged, and thereafter call on him to answer to a lesser offence, or hold that a prima facie case for the more serious offence had been made out, and then proceed in its verdict to convict of the lesser offence.” PER U. OMO, J.S.C.
SECTION 179 OF THE CRIMINAL PROCEDURE LAW –APPLICABILITY OF SECTION 179 OF THE CRIMINAL PROCEDURE LAW
“In my considered opinion, and I so hold, section 179 of the Criminal Procedure Law is only applicable to enable verdict of a less serious offence where there was a trial on the merits of the more serious offence and the evidence supports conviction for the lesser offence. It is not designed for cases where there was no trial as in the instant case.” PER. A. G. KARIBI-WHYTE, J.S.C
JURISDICTION OF COURT – PARTIES CANNOT CONFER JURISDICTION ON THE COURT.
“It is pertinent to observe that parties cannot confer jurisdiction on the Court where it has none or can have none. Thus where the court has no jurisdiction and the act done without jurisdiction is a nullity. The fact that appellant co-operated did not clothe it with jurisdiction and the consequent act with validity.” PER. A. G. KARIBI-WHYTE, J.S.C
ADMISSION OF FACT IN CIVIL MATTER – ADMISSION BY A PERSON OF FACT NOT KNOWN TO HIM IS NO EVIDENCE IN CIVIL CASES.
“In civil cases an admission by a person of a fact of which he knows nothing is of no evidential value: see: Seismograph Service (Nig.) Limited v. Eyuafe (1976) 9-10 S.C. 135, Comptroller of Customs v. Western Lectric Co. Ltd. (1966) A.C.367.”PER P.NNAEMEKA-AGU, J.S.C
SECTION 179 OF THE CRIMINAL PROCEDURE LAW –APPLICABILITY OF SECTION 179 OF THE CRIMINAL PROCEDURE LAW
“In my considered opinion, and I so hold, section 179 of the Criminal Procedure Law is only applicable to enable verdict of a less serious offence where there was a trial on the merits of the more serious offence and the evidence supports conviction for the lesser offence. It is not designed for cases where there was no trial as in the instant case.” PER. A. G. KARIBI-WHYTE, J.S.C
PRESUMPTION OF INNOCENCE – IT IS AGAINST THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE TO REQUIRE AN ACCUSED PERSON TO PROVE HIS INNOCENCE.
“Under our constitution, there is no onus on an accused person to establish his innocence. Hence where at the close of the case of prosecution, no case has been made out against the accused asking him to answer any charge connected with the offence with which he has been discharged is a reversal of the constitutional presumption of innocence by asking him to establish his innocence. No court has such a jurisdiction – See Mumuni v. The State (1975) 6 S.C.79. In re Maiduguri (1961) 1 All NLR. 673; (1961) 2 SCNLR 341; Osarodion Okoro v. The State (1988)12 S.C. N.J. 191 (1988) 5 NWLR (Pt.94) 255.”PER. A. G. KARIBI-WHYTE, J.S.C
SECTION 181 OF THE CRIMINAL PROCEDURE LAW – IMPORT OF SECTION 181 OF THE CRIMINAL PROCEDURE LAW
“One final observation on this issue Section 181 of the Criminal Procedure Law provides an absolute defence in respect of charges where the accused has been previously convicted or acquitted by a competent court exercising jurisdiction, if the offence in respect of which he was convicted or acquitted is the same as that in the charge now before the court, or the charge before the court is for an offence in respect of which he could have been convicted in the previous case.” PER. A. G. KARIBI-WHYTE, J.S.C
NO CASE SUBMISSION- EFFECT OF A NO CASE SUBMISSION ON THE OFFENCE OF MURDER.
“In a submission of no case to answer a discharge on the offence of murder is a discharge on the offence of manslaughter; and since a discharge under section 286 constitutes a discharge on the merits, which in turn amounts to an acquittal, then the trial court cannot go on to convict for manslaughter. Such conviction is an infringement of the provisions of section 181 subsection (1) of the Criminal Procedure Act and section 33 subsection (9) of the 1979 Constitution. In effect after the discharge under Section 286 the trial Judge becomes functus officio and ceases at that moment to have the power to try or convict the accused person of the lesser offence of manslaughter.” PER. M. L. UWAIS, J.S.C
CONCURRENT FINDINGS OF FACT– INSTANCES WHERE THE PRINCIPLE OF CONCURRENT FINDINGS WILL NOT BE APPLICABLE
“The principle of concurrent findings of fact by the lower courts cannot apply in this case as there is no direct, positive and unequivocal evidence that it was the shot fired by the appellant that caused the death of the deceased”. PER A.B.WALI, J.S.C
OFFENCE OF MANSLAUGHTER – AN ACCUSED PERSON CHARGED WITH AN OFFENCE OF MANSLAUGHTER CAN BE CONVICTED ON A CHARGE OF MURDER
“Manslaughter is an offence of which an accused person could, in a proper case, be convicted on a charge of murder.”PER P. NNAEMEKA-AGU, J.S.C
ADMISSION– FACTORS THAT DETERMINES THE WEIGHT TO BE ATTACHED TO AN ADMISSION
“Where, therefore, what is being relied upon in the statement is only an admission which falls short of a voluntary confession, its weight and value depend upon a variety of considerations, including the circumstances of the admission, the competence and capability of the accused person to know what was allegedly admitted by him.” PER P. NNAEMEKA-AGU, J.S.C
NO CASE SUBMISSION – EFFECT OF A SUCCESSFUL PLEA OF A NO CASE SUBMISSION IN A CHARGE OF MURDER
“It is well settled that after a successful submission of a no case to answer had been made in respect of the murder charge, accused is no longer to be regarded as charged with that offence and must be discharged on the merits – See Police v. Marke (1957) 2 FSC.5; (1957) SCNLR 53. This proposition follows from the fact that a successful submission is a confirmation that there was insufficient evidence in respect of the offence of murder for which the accused was charged and that it would be unconstitutional to call upon the accused to make his defence. – See S.33(9) Constitution 1979.” PER. A. G. KARIBI-WHYTE, J.S.C
NO CASE SUBMISSION – EFFECT OF A SUCCESSFUL PLEA OF A NO CASE SUBMISSION IN A CHARGE OF MURDER
“It is well settled that after a successful submission of a no case to answer had been made in respect of the murder charge, accused is no longer to be regarded as charged with that offence and must be discharged on the merits – See Police v. Marke (1957) 2 FSC.5; (1957) SCNLR 53. This proposition follows from the fact that a successful submission is a confirmation that there was insufficient evidence in respect of the offence of murder for which the accused was charged and that it would be unconstitutional to call upon the accused to make his defence. – See S.33(9) Constitution 1979.” PER. A. G. KARIBI-WHYTE, J.S.C
STANDARD OF PROOF – EFFECT OF A SUBSTANTIAL MISDIRECTION AS TO STANDARD OF PROOF
“A substantial misdirection as to standard of proof robs a court of the capacity to decide an important issue correctly.” PER P.NNAEMEKA-AGU, J.S.C
NO CASE SUBMISSION – IMPLICATION OF A NO CASE SUBMISSION MADE BY A COUNSEL
“When counsel makes a submission that the accused has no case to answer, the meaning is that in law, there is no evidence on which, even if believed, the court can convict – See Ibeziako v. C.O.P. (1963) 1 All NLR. 61; (1963) SCNLR 99: Ajidagba v. IGP (1958) 3 FSC. 5; (1958) SCNLR 60”. PER A. G. KARIBI-WHYTE, J.S.C
LESSER OFFENCE – DETERMINATION OF WHAT CONSTITUTES A LESSER OFFENCE
“Attempt was made in Torhamba v. Police (1956) NRNLR. 94, to provide a guide for the determination of what constitutes a lesser offence. In that case Bairamian Ag. C.J. laid down the test required by S. 179 as follows –
“…the lesser offence is a combination of some of the several particulars making up the offence charged; in other words the particulars constituting the lesser offence are carved out of the particulars of the offence charged. For example if the charge is wounding with intent to do grievous harm, the lesser offence is unlawful wounding; and if unlawful wounding is proved but not the intent to do grievous harm, the defendant may be convicted of unlawful wounding. Again if a person is charged with murder, he may be convicted of manslaughter; for murder is unlawful killing with malice and manslaughter is unlawful killing merely, or it may be murder reduced to manslaughter by provocation which furnishes an example under sub-s (2) …” PER. A. G. KARIBI-WHYTE, J.S.C
OFFENCE OF MANSLAUGHTER – AN ACCUSED PERSON CHARGED WITH AN OFFENCE OF MANSLAUGHTER CAN BE CONVICTED ON A CHARGE OF MURDER
“Manslaughter is an offence of which an accused person could, in a proper case, be convicted on a charge of murder.”PER P. NNAEMEKA-AGU, J.S.C
PROOF IN A CHARGE OF MANSLAUGHTER – NATURE OF EVIDENCE REQUIRED TO PROVE BEYOND REASONABLE DOUBT A CHARGE OF MANSLAUGHTER
“To constitute proof beyond reasonable doubt, negligence of the degree required to establish manslaughter must be revealed by the evidence and proved.”PER. U. OMO, J.S.C.
LESSER OFFENCE – DETERMINATION OF WHAT CONSTITUTES A LESSER OFFENCE
“Attempt was made in Torhamba v. Police (1956) NRNLR. 94, to provide a guide for the determination of what constitutes a lesser offence. In that case Bairamian Ag. C.J. laid down the test required by S. 179 as follows –
“…the lesser offence is a combination of some of the several particulars making up the offence charged; in other words the particulars constituting the lesser offence are carved out of the particulars of the offence charged. For example if the charge is wounding with intent to do grievous harm, the lesser offence is unlawful wounding; and if unlawful wounding is proved but not the intent to do grievous harm, the defendant may be convicted of unlawful wounding. Again if a person is charged with murder, he may be convicted of manslaughter; for murder is unlawful killing with malice and manslaughter is unlawful killing merely, or it may be murder reduced to manslaughter by provocation which furnishes an example under sub-s (2) …” PER. A. G. KARIBI-WHYTE, J.S.C
MURDER – DEFINITION OF MURDER
“Murder is defined in Section 316 of the Criminal Code and six circumstances are therein set out under any of which any person who unlawfully kills another is guilty of murder.”PER. M. L. UWAIS, J.S.C
MURDER – DEFINITION OF MURDER
“Murder is defined in Section 316 of the Criminal Code and six circumstances are therein set out under any of which any person who unlawfully kills another is guilty of murder.”PER. M. L. UWAIS, J.S.C
NO CASE SUBMISSION- EFFECT OF A NO CASE SUBMISSION ON THE OFFENCE OF MURDER.
“In a submission of no case to answer a discharge on the offence of murder is a discharge on the offence of manslaughter; and since a discharge under section 286 constitutes a discharge on the merits, which in turn amounts to an acquittal, then the trial court cannot go on to convict for manslaughter. Such conviction is an infringement of the provisions of section 181 subsection (1) of the Criminal Procedure Act and section 33 subsection (9) of the 1979 Constitution. In effect after the discharge under Section 286 the trial Judge becomes functus officio and ceases at that moment to have the power to try or convict the accused person of the lesser offence of manslaughter.” PER. M. L. UWAIS, J.S.C
DISCHARGE – IMPLICATION OF A DISCHARGE
“A discharge after the prosecution has closed its case amounts to an acquittal which can support a plea of autrofois acquit: see Police v. Marke(1957) 2 F.S.C.5; (1957) SCNLR 53; “Nwali v. Police (1956) 1 E.N.L.R.I”. PER P. NNAEMEKA-AGU, J.S.C
CONVICTION WITHOUT A CHARGE – INSTANCE WHERE AN ACCUSED PERSON CAN BE CONVICTED WITHOUT A CHARGE
“Where the elements are the same, there can be a lesser offence in respect of which an accused can be convicted without a charge.”PER. A. G. KARIBI-WHYTE, J.S.C
PRESUMPTION OF INNOCENCE – IT IS AGAINST THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE TO REQUIRE AN ACCUSED PERSON TO PROVE HIS INNOCENCE.
“Under our constitution, there is no onus on an accused person to establish his innocence. Hence where at the close of the case of prosecution, no case has been made out against the accused asking him to answer any charge connected with the offence with which he has been discharged is a reversal of the constitutional presumption of innocence by asking him to establish his innocence. No court has such a jurisdiction – See Mumuni v. The State (1975) 6 S.C.79. In re Maiduguri (1961) 1 All NLR. 673; (1961) 2 SCNLR 341; Osarodion Okoro v. The State (1988)12 S.C. N.J. 191 (1988) 5 NWLR (Pt.94) 255.”PER. A. G. KARIBI-WHYTE, J.S.C
CRIMINAL TRIAL – DUTY OF A JUDGE WHERE THE PROSECUTION PROVES A LESSER OFFENCE
“Where the trial judge, on a submission of no case to answer, finds that although the prosecution have prima facie not proved the offence charged but the lesser offence, then he is obliged to rule that there is a case for the accused person to answer and to proceed with the trial by asking the accused person to enter his defence.” PER. M. L. UWAIS, J.S.C
CONFESSIONAL STATEMENT –POWER OF AN APPELLATE COURT TO QUASH A CONVICTION BASED ON AN EQUIVOCALCONFESSIONAL STATEMENT
“Where, however, the confession is equivocal, the appellate court may quash a conviction based on it: R.v. Barker(19 16) Cr. App. R.191.”PER P. NNAEMEKA-AGU, J.S.C
CONFESSIONAL STATEMENT –POWER OF AN APPELLATE COURT TO QUASH A CONVICTION BASED ON AN EQUIVOCALCONFESSIONAL STATEMENT
“Where, however, the confession is equivocal, the appellate court may quash a conviction based on it: R.v. Barker(19 16) Cr. App. R.191.”PER P. NNAEMEKA-AGU, J.S.C
NO CASE SUBMISSION – EFFECT OF A DISCHARGE ON A NO CASE SUBMISSION
“The point of law involved is whether a court of trial can after discharging an accused person of an offence upon the submission that he had no case to answer in respect of such charge, proceed to trial and conviction for a lesser offence arising from such charge? There is no doubt that if this question is answered in the negative quaesitocadit, the trial Judge having no jurisdiction, the subsequent trial after the discharge on a submission of no case to answer is a nullity.”PER A. G. KARIBI-WHYTE, J.S.C
EXTRA-JUDICIAL STATEMENT OF AN ACCUSED PERSON – SCOPE OF AN EXTRA -JUDICIAL STATEMENT TENDERED DURING THE HEARING OF A MATTER
“The extra-Judicial statement of an accused person which is rendered at the hearing is part of the evidence called by the prosecution and will therefore be looked upon from the standpoint of the onus on them to prove their case beyond reasonable doubt, an onus that never shifts.” PER P. NNAEMEKA-AGU, J.S.C
DISMISSAL ON THE MERIT- MEANING OF A DISMISSAL ON THE MERIT
“The effect of a discharge under section 286 of the Criminal Procedure Act had been considered by a High Court in the case of Inspector-General of Police v. Sydney Marke, (1957) N.R.N.L.R.89. In that case Bairamian, S.P.J. (as he then was) stated on p.94 thereof
“To repeat what has been quoted from Reed v. Nutt; (1890) 24 Q.B.D., 669 at p.673) a dismissal on the merits is a dismissal based on the facts or on the law applicable to the facts. The facts come to light when evidence has been heard. In other words, a dismissal on the merits means a dismissal after evidence has been heard, or as the Chief Justice observed, in the course of the argument in this appeal, where there has been a trial .“ PER. M. L. UWAIS, J.S.C
PROOF IN A CHARGE OF MANSLAUGHTER – NATURE OF EVIDENCE REQUIRED TO PROVE BEYOND REASONABLE DOUBT A CHARGE OF MANSLAUGHTER
“To constitute proof beyond reasonable doubt, negligence of the degree required to establish manslaughter must be revealed by the evidence and proved.”PER. U. OMO, J.S.C.
CONVICTION ON A LESSER OFFENCE – CONDITIONS TO BE FULFILLED FOR AN ACCUSED PERSON TO BE CONVICTED FOR A LESSER OFFENCE
“It is useful to understand that for an accused to be convicted for a lesser offence, the following conditions must be fulfilled. First the elements in the offence charged and those in the lesser offence for which the accused is convicted must be the same.
Secondly, the evidence adduced and the facts found must be insufficient for conviction in respect of the offence charged, but at the same time support thelesser offence in respect of which the accused was convicted. – See R v. Adokwu 20 NLR. 103, at p.105,where Bairamian J. said,
“If he is to be convicted under section 179 of the Criminal Procedure Ordinance of a lesser offence, this must be on facts embraced in the particulars of the greater offence charged, otherwise he cannot properly be deemed to have notice of the lesser offence.”
Thirdly, the lesser offence in respect of which the accused was convicted is usually not charged. This is clearly envisaged by the expression in sub-section (1) italicized waiving the requirement of a formal charge. Finally, the accused must be tried on the more serious offence.” PER. A. G. KARIBI-WHYTE, J.S.C
DISCHARGE – IMPLICATION OF A DISCHARGE
“A discharge after the prosecution has closed its case amounts to an acquittal which can support a plea of autrofois acquit: see Police v. Marke(1957) 2 F.S.C.5; (1957) SCNLR 53; “Nwali v. Police (1956) 1 E.N.L.R.I”. PER P. NNAEMEKA-AGU, J.S.C
EVIDENCE – DUTY OF THE COURT WHERE THE EVIDENCE BEFORE IT SUPPORTS A LESSER OFFENCE THAN THE ONE THE ACCUSED IS CHARGED WITH
“Where the evidence supports a lesser offence only, the court should either discharge the accused of the serious offence charged, and thereafter call on him to answer to a lesser offence, or hold that a prima facie case for the more serious offence had been made out, and then proceed in its verdict to convict of the lesser offence.” PER U. OMO, J.S.C.
PRIMA FACIE CASE – EFFECT OF FAILURE TO MAKE A PRIMA FACIE CASE AGAINST AN ACCUSED PERSON
“Accordingly where the prosecution has failed to make a prima facie case, sufficiently to require the accused to make his defence, the court shall, and this is mandatory, discharge him as to that particular charge. See Ajidagba v. I.G. of Police (supra), Okoro v. State (1988) 12 SCNJ 191; (1988) 5 NWLR (Pt.94) 255; andR v. Plain (1967) 1 All ER.614.” PER A. G. KARIBI-WHYTE, J.S.C
SECTION 181 OF THE CRIMINAL PROCEDURE LAW – IMPORT OF SECTION 181 OF THE CRIMINAL PROCEDURE LAW
“One final observation on this issue Section 181 of the Criminal Procedure Law provides an absolute defence in respect of charges where the accused has been previously convicted or acquitted by a competent court exercising jurisdiction, if the offence in respect of which he was convicted or acquitted is the same as that in the charge now before the court, or the charge before the court is for an offence in respect of which he could have been convicted in the previous case.” PER. A. G. KARIBI-WHYTE, J.S.C
ADMISSION OF FACT IN CIVIL MATTER – ADMISSION BY A PERSON OF FACT NOT KNOWN TO HIM IS NO EVIDENCE IN CIVIL CASES.
“In civil cases an admission by a person of a fact of which he knows nothing is of no evidential value: see: Seismograph Service (Nig.) Limited v. Eyuafe (1976) 9-10 S.C. 135, Comptroller of Customs v. Western Lectric Co. Ltd. (1966) A.C.367.”PER P.NNAEMEKA-AGU, J.S.C
ADMISSION– FACTORS THAT DETERMINES THE WEIGHT TO BE ATTACHED TO AN ADMISSION
“Where, therefore, what is being relied upon in the statement is only an admission which falls short of a voluntary confession, its weight and value depend upon a variety of considerations, including the circumstances of the admission, the competence and capability of the accused person to know what was allegedly admitted by him.” PER P. NNAEMEKA-AGU, J.S.C
CRIMINAL TRIAL – APPROPRIATE MODE OF TRIAL WHEN AN ACCUSED PERSON CHARGED WITH MURDER IS GUILTY OF A LESSER OFFENCE
“Where an accused person is charged with murder, it would, in the interest of Justice, be better that he goes through the “psychological agony” of a full trial on the serious offence of murder, and subsequently be found guilty and convicted of the lesser offence of manslaughter, rather than that he be discharged of the more serious offence of murder on a no-case submission, when a verdict of the lesser offence is probable at the end of the trial.”PER. U. OMO, J.S.C.
CRIMINAL TRIAL – DUTY OF THE TRIAL COURT WHEN AN EVENT GIVES RISE TO TWO DIFFERENT INTERPRETATIONS
“It has long been established where in a criminal trial a given event is equally open to two different interpretations, the construction that is most favourable to the accused should, in that case, be given by the trial court”.PER. M. L. UWAIS, J.S.C
CONVICTION WITHOUT A CHARGE – INSTANCE WHERE AN ACCUSED PERSON CAN BE CONVICTED WITHOUT A CHARGE
“Where the elements are the same, there can be a lesser offence in respect of which an accused can be convicted without a charge.”PER. A. G. KARIBI-WHYTE, J.S.C
STANDARD OF PROOF – EFFECT OF A SUBSTANTIAL MISDIRECTION AS TO STANDARD OF PROOF
“A substantial misdirection as to standard of proof robs a court of the capacity to decide an important issue correctly.” PER P.NNAEMEKA-AGU, J.S.C
PRESUMPTION OF INNOCENCE –CONSEQUENCE OF A PROCEEDING SUBSEQUENT TO THE VIOLATION OF SECTION 33(5) OF THE CONSTITUTION
“Consequently every proceeding subsequent to the violation of the provisions of section 33(5) of the Constitution is void having been conducted without competence – See Madukolu v. Nkemdilim (1962) 1 All NLR.688; (1962) 2 SCNLR 341.”PER. A. G. KARIBI-WHYTE, J.S.C
PRIMA FACIE CASE – EFFECT OF FAILURE TO MAKE A PRIMA FACIE CASE AGAINST AN ACCUSED PERSON
“Accordingly where the prosecution has failed to make a prima facie case, sufficiently to require the accused to make his defence, the court shall, and this is mandatory, discharge him as to that particular charge. See Ajidagba v. I.G. of Police (supra), Okoro v. State (1988) 12 SCNJ 191; (1988) 5 NWLR (Pt.94) 255; andR v. Plain (1967) 1 All ER.614.” PER A. G. KARIBI-WHYTE, J.S.C
CRIMINAL TRIAL – DUTY OF THE TRIAL COURT WHEN AN EVENT GIVES RISE TO TWO DIFFERENT INTERPRETATIONS
“It has long been established where in a criminal trial a given event is equally open to two different interpretations, the construction that is most favourable to the accused should, in that case, be given by the trial court”.PER. M. L. UWAIS, J.S.C
DISMISSAL ON THE MERIT- MEANING OF A DISMISSAL ON THE MERIT
“The effect of a discharge under section 286 of the Criminal Procedure Act had been considered by a High Court in the case of Inspector-General of Police v. Sydney Marke, (1957) N.R.N.L.R.89. In that case Bairamian, S.P.J. (as he then was) stated on p.94 thereof
“To repeat what has been quoted from Reed v. Nutt; (1890) 24 Q.B.D., 669 at p.673) a dismissal on the merits is a dismissal based on the facts or on the law applicable to the facts. The facts come to light when evidence has been heard. In other words, a dismissal on the merits means a dismissal after evidence has been heard, or as the Chief Justice observed, in the course of the argument in this appeal, where there has been a trial .“ PER. M. L. UWAIS, J.S.C
JURISDICTION OF COURT – PARTIES CANNOT CONFER JURISDICTION ON THE COURT.
“It is pertinent to observe that parties cannot confer jurisdiction on the Court where it has none or can have none. Thus where the court has no jurisdiction and the act done without jurisdiction is a nullity. The fact that appellant co-operated did not clothe it with jurisdiction and the consequent act with validity.” PER. A. G. KARIBI-WHYTE, J.S.C
PRESUMPTION OF INNOCENCE –CONSEQUENCE OF A PROCEEDING SUBSEQUENT TO THE VIOLATION OF SECTION 33(5) OF THE CONSTITUTION
“Consequently every proceeding subsequent to the violation of the provisions of section 33(5) of the Constitution is void having been conducted without competence – See Madukolu v. Nkemdilim (1962) 1 All NLR.688; (1962) 2 SCNLR 341.”PER. A. G. KARIBI-WHYTE, J.S.C
CONVICTION – INSTANCES WHERE AN ACCUSED PERSON CAN BE CONVICTED FOR A LESSER OFFENCE
“An accused person can only be convicted for a lesser offence at the conclusion of the trial and where he is, for any reasons, discharged on the charge for which he was arraigned”. PER A.B.WALI, J.S.C
CONVICTION – INSTANCES WHERE AN ACCUSED PERSON CAN BE CONVICTED FOR A LESSER OFFENCE
“An accused person can only be convicted for a lesser offence at the conclusion of the trial and where he is, for any reasons, discharged on the charge for which he was arraigned”. PER A.B.WALI, J.S.C
CONCURRENT FINDINGS OF FACT– INSTANCES WHERE THE PRINCIPLE OF CONCURRENT FINDINGS WILL NOT BE APPLICABLE
“The principle of concurrent findings of fact by the lower courts cannot apply in this case as there is no direct, positive and unequivocal evidence that it was the shot fired by the appellant that caused the death of the deceased”. PER A.B.WALI, J.S.C
CRIMINAL TRIAL – DUTY OF A JUDGE WHERE THE PROSECUTION PROVES A LESSER OFFENCE
“Where the trial judge, on a submission of no case to answer, finds that although the prosecution have prima facie not proved the offence charged but the lesser offence, then he is obliged to rule that there is a case for the accused person to answer and to proceed with the trial by asking the accused person to enter his defence.” PER. M. L. UWAIS, J.S.C
CASES CITED
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria,1979Criminal CodeCriminal Procedure Act Cap. 43 of the Laws of the Federation of Nigeria, 1958Criminal Procedure Law of Lagos State (cap 32) Laws of Lagos State 1973.Criminal Procedure Ordinance
