CORAM
ANDREWS OTUTU OBASEKI, JUSTICE, SUPREME COURT
KAYODE ESO, JUSTICE, SUPREME COURT
AUGUSTINE NNAMANI, JUSTICE, SUPREME COURT
ADOLPHUS GODWIN KARIBI-WYHTE, JUSTICE, SUPREME COURT
SAJDU KAWU, JUSTICE, SUPREME COURT
PARTIES
MANAWA OGBODU
APPELLANTS
THE STATE
RESPONDENTS
AREA(S) OF LAW
CRIMINAL LAW PRACTICE AND PROCEDURE- EVIDENCE-PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The appellant was charged and convicted for the murder of one John Okporokpo. The Court of Appeal also affirmed the conviction hence this present appeal.
HELD
Dismissing the appeal
ISSUES
1. Whether the learned Justices of the Court of Appeal directed themselves properly in law and on the evidence on the failure of the prosecution to call Sylvanus Egbede – a vital eye witness to the incident.
2. Whether there was miscarriage of justice to the Appellant when the lower court Refused Appellants application to call the only witness he has to sup-port his case i.e. his son.
3. Whether the Court below was right in upholding the conviction and sentence of the Appellant on the basis of an amended proof of evidence which did not comply with S.164 and S.165 of the Criminal Procedure Law Volume II Laws of Bendel State of Nigeria.
4. Whether the Court below in upholding the conviction and sentence of the Appellant was right when it held that the defence of provocation under S.286 of the Criminal Code cannot avail the Appellant.
5. Whether the conviction of the Appellant of the offence of murder was proper when in fact the particulars of the offence disclose a case of manslaughter.
RATIONES DECIDENDI
FINDING OF FACT BASED ON THE CREDIBILITY OF A WITNESS
Where there is a finding of fact based on the credibility of a witness, as in this case, a Court of Appeal will be very reluctant to interfere. Per Kawu JSC
DEFENCE OF PROVOCATION
The defence of provocation must be based on some credible evidence. Per Kawu JSC
RE-OPENING OF QUESTIONS OF FACT WHERE THERE HAVE BEEN CONCURRENT FINDINGS BY TWO LOWER COURTS
This Court has held in several cases that in the absence of special circumstances, it will not allow a question of fact to be re- opened where there have been concurrent findings by two lower courts. Per Kawu JSC
NO OF WITNESSES NECESSARY TO PROVE A CASE
Although the burden is on the prosecution to prove its case against the accused beyond any reasonable doubt, it has a discretion to call only those witnesses required to prove its case. The law does not impose on the prosecution the duty or function of both the prosecution and the defence. Per Kawu JSC
CASES CITED
Saidu v. The State (1982) 4 S.C. 41 at p.69; Also see Okonofua v. The State (1981) 6-9 SC. 1 at p.18
Kponuglo v. Kodaia (1933) 2 W.A.C.A. 24
Mogo Chikwendu v. Mbamaii (1980) 3 S.C.31
Ubodo & Ors. v. Enarofie & Ors. (1980) 5-7 S.C. 42 at p.55
Overseas Construction Ltd. v. Creek Enterprises Ltd. (1985) 3 N.W.L.R (Part 13) 407.
STATUTES REFERRED TO
Criminal Procedure Law Volume II Laws of Bendel State of Nigeria.”