MBELE v. THE STATE

• Pages: 11-26

MBELE V. STATE

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MBELE V. STATE

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NGWUTA MBELE

APPELLANT

V.

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THE STATE

RESPONDENT

APPEAL NO. SC.171/1989

SUPREME COURT OF NIGERIA

OBASEKI,

J.S.C.

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KARIBI-WHYTE,

J.S.C.

BELGORE,

J.S.C.

AGBAJE,

J.S.C.

NNAEMEKA-AGU, J.S.C.

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6th July, 1990.

Appeals - Concurrent findings of two lower courts - Attitude of Supreme Court thereto.

Criminal Law and Procedure - Murder - An eye witness being a child - Whether conviction

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can be based on the corroborated evidence of the child witness - Fair hearing - Question

of substance and not of form - Right ofaccused person to remain silent - Whether silence

amounts to admission of guilt.

Evidence - 10 year old girl - Unsworn evidence of - How treated - Need for the trial Judge

to investigate whether the child understands the duty of speaking the truth - Whether

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failure by the trial Judge to put in the record the nature of questions asked the child is

fatal to the reception of the evidence - Need for unworn evidence of a child to be

corroborated - Corroboration - Whether circumstantial evidence will suffice - Sections

154, 179 and 182 of the EvidenceAct, Cap.112, Laws of the Federation, 1990 construed.

Interpretation and Construction - Sections 154, 179 and 182, Evidence Act - How

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construed.

Words and Phrases - 'Corroboration' - Requirements and meaning of

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ISSUES:

1.

What is the duty of a judge faced with the testimony of a child?

2.

When may the Supreme Court interfere with the concurrent findings of fact of

two lower courts?

FACTS:

The appellant was charged with the murder of his wife. In all, five witnesses

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

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testified for the prosecution. The appellant testified in his own behalf. He called no

other witness. Two of the witnesses for the prosecution (P.W.3 and P.W.4) were

children of tender years. P.W.4 (Nwankwo Mbele) was the only eye witness to the

murder. She was about ten years old. She was examined on oath in compliance

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NIGERIAN SUPREME COURT CASES [1990] 3 N.S.C.C.

with sections 154 and 182 of the Evidence Act, Cap.112, L.F.N. 1990 to enable the

Judge determine if she understood the duty of speaking the truth, and if she was

possessed of sufficient intelligence to justify the reception of her evidence.

At the end of the trial, the learned trial Judge found the appellant guilty as

charged and sentenced him to death.

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The appellant, dissatisfied with the judgment of the trial court, appealed to the

Court of Appeal, contending,

inter alia,

that the learned trial Judge failed to comply

with the requirements of sections 154 and 182 of the Evidence Act. Part of the

record of the learned Judge complained against read as follows:

"Nwankwo Mbele (P.W.4) was examined by me in accordance with sections 182

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and 154 of the Evidence Act. She is aged about 10 years. She gave rational

answers to my questions and appears quite intelligent although she says she

does not attend school. She understands the duty of speaking the truth and is

possessed of sufficient intelligence as to justify reception of her evidence."

The learned counsel to the appellant contended that the learned trial Judge

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ought to have recorded the specific questions he put to the child and the answers

he got from her, from which he drew the inferences that she was possessed of

sufficient intelligence to understand the importance of speaking the truth and the

nature and consequences of an oath.

The Court of Appeal affirmed the judgment of the trial court. And the appellant

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again appealed to the Supreme Court contending,

inter elle,

that the current

findings of the courts below that appellant killed the deceased, relying on the sole

evidence of a child of ten years were perverse, having regard to the fact that a child

confronted with a frightful situation imagines many things.

HELD:

per

NNAEMEKA AGU, J.S.C.

1.

Corroborative evidence must be evidence which confirms in some material

particular not only that the crime has been committed but also that it was the

accused (appellant in this case) who committed it.

In the instant case, the doctor's evidence cannot, in law, be corroborative

evidence of the appellant that P.W. 4 ran to P.W.2 crying and that P.W.2 came

with her. This evidence did not show that an offence has been committed let

alone that he (the appellant) committed it.

(see p..22 lines 6-8).

2.

The corroborative evidence need not be direct evidence that the accused

committed the crime. It is sufficient if it is merely circumstantial evidence of the

accused connection with the crime.

(see p.23 lines 1-3.)

3.

The Supreme Court will not interfere with the concurrent findings of fact of two

lower courts unless there is a miscarriage of justice. A significant finding of fact

on the question of corroboration of the evidence of RW.4 is the fact that the

learned trial Judge believed the evidence of P.W.2. The Court of Appeal did not

disturb the finding and in fact endorsed it.

(see p.21 lines 17-18.)

4.

A Judge faced with the testimony of a child witness has two vital investigations

to make, namely: (1) Is he or she possessed of sufficient intelligence to justify

the reception of his/her evidence, that is: does he/she understand the duty of

speaking the truth?; (2) Does he understand the nature of an oath? It is only

after the above two questions have been answered in the affirmative that an

oath can lawfully be administered to the child. (see

p.26 line 1-11)

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