OKORO V. STATE

• Pages: 275-332

OKORO V. STATE

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275

OKORO V. STATE

OSARODION OKORO

V

0 THE STATE

SUPREME COURT OF NIGERIA

NNAMANI,



J.S.C.

UWAIS,



J.S.C.

5



KARIBI-WHYTE,



J.S.C.

AGBAJE,



J.S.C.

CRAIG,



J.S.C.

16th December, 1988

APPELLANT

RESPONDENT

SUIT NO. SC 48/1988

Crinzinal Procedure - Appeals - Failure of Prosecution to establish its case - Issue raised

suo motu by Court - Propriety - Submission of no case to answer - Duly of Court under

S.286 of the Criminal Code - Validity of Conviction based on evidence of a co-accused.

Evidence - Onus of proof in Criminal Trials - Burden on Prosecution - Section 137( 1) -

Evidence Act - Failure to discharge - Effect of - Corpse of the deceased - Requirement

of Identification - Medical evidence - Evidence of Co-accused persons - Attitude of

Courts - Judicial interpretation of Section 177(2) Evidence Act.

Constitutional Law - Presumption of Innocence - Section 33(5) 1979 Constitution - Effect

on criminal proceedings - Rebuttal of presumption by strong suspicion.

ISSUES:

1.

Whether the presumption of innocence afforded an accused person under the

1979 constitution is a fundamental prerequisite to the just determination of a

criminal trial and if so whether this presumption can be rebutted by a case

founded on very strong suspicion.

2.

When can it be said that the prosecution has successfully discharged the

constitutional burden of proving the guilt of the accused beyond reasonable

doubt.

3.

In the light of Section 177(2) of the Evidence Act how do the courts view the

incriminating evidence of a co-accused person.

4.

Whether a court can

suo motu

raise the fact that the prosecution has failed to

prove the case alleged against the accused.

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5. Whether a Criminal trial would be rendered a nullity where the trial court failed to

comply with the provisions of Section

33(5)

of the 1979 constitution.

6.

Under what circumstances would a trial court uphold a submission of no case to

answer.

7.

Whether in the light of Section 286 of the Criminal Procedure Law, there exists a

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mandatory duty on a trial court to discharge an accused person, where the

prosecution has failed to make out its case against

the accused.

8.

Whether in a trial for murder the prosecution must establish both the cause of

death and that a nexus exists between the accused and the death of the deceased

person.

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276

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NIGERIAN SUPREME COURT CASES

[1988] 3 N.S.C.C.

9.

Whether it is essential in a murder trial for the person who identified the corpse

of the deceased to be called to give evidence and whether it is necessary in such

a trial for medical evidence to be given in proof of the crime alleged.

10.

Whether an accused person can properly be convicted for an offence by a trial

court merely because the accused refused to answer when asked certain

questions concerning him.

11.

Whether a trial court can properly call on an accused person to make his defence

to the offence charged, where the prosecution has failed to establish a

prima -

facie

case against the accused person.

12.

Whether the Supreme Court would consider, in an appeal before it, a point not

properly raised as a ground of appeal.

FACTS:

On the 10th of December 1983 while P.W.2 (Stephen Ozerbogie) was in a near-

by bush he heard an unusual loud noise coming from the direction of his house. On

proceeding to the road he saw some people beating the deceased (Monday Mozea)

with fists, legs and sticks, when he asked the assailants to stop beating the deceased

they refused and when he attempted to physically stop them he was violently pushed

to the ground.

The assailants consequently left leaving the deceased on the ground. P.W.2 at-

tempted to give the deceased first aid but the deceased did not respond to the treat-

ment, shortly after the deceased's brother came out of the bush and helped P.W.2

to carry the deceased to Central Hospital.

The deceased subsequently died at the Hospital and was thereafter taken to the

mortuary.

P.W.1 (Dr. Ogbemi) stated that on the 15th of December 1983 he performed the

post-mortem on the corpse of the deceased (Monday Mozea) and that the body was

identified by one Peter Mozea who claimed to be the Uncle of the deceased.

P.W.3 (Sergeant Shegana) testified how he arrested the appellant and the 6 other

accused persons and took their statements. He further testified how at the residence

of the appellant (the 1st accused person) one Idahosa identified the appellant as one

of those that murdered the deceased.

At the end of the prosecutions case the trial judge in his ruling acquitted and dis-

charged the 3rd accused person for want of evidence since no

prima facie

case was

made against her.

The 1st, 2nd, 4th 5th 6th and 7th were called upon to make their defence.

Each of the accused persons gave evidence in his own defence denying the

charge of murder. The 2nd accused was acquitted and discharged due to incon-

clusive evidence.

The prosecution failed to give more credible evidence as to the part played by

the 4th and 5th accused persons so as to demolish their alibi. The 4th and 5th ac-

cused persons were subsequently acquitted and discharged.

Although there was evidence that the 6th and 7th accused were present at the

locus criminis

there was no evidence as to the part they played in the assualt of the

deceased. They were also discharged and acquitted_

The learned trial judge had then only the case of the 1st accused (the appellant)

to consider. He found him guilty as charged. The judge in sentencing the appellant

to death relied on

inter alia

the evidence of the 6th and 7th accused persons.

The 1st accused being aggrieved appealed to the Court of Appeal and the Court

dismissed his appeal.

OKORO V. STATE

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277

The appellant subsequently appealed to the Supreme Court questioning

inter alia

the propriety of his conviction based upon the testimony of the 6th and 7th accused

persons and further raising the issue as to the lack of proper identification of the

body of the deceased person.

HELD:

1.

That it is a constitutional requirement that every person who is charged with a

criminal offence will be presumed innocent until he is proven guilty. The

prosecution must establish the guilt of the accused beyond reasonable doubt,

this burden remains on the prosecution to the end of the case and never shifts.

It is when the prosecution has established a

prima facie

case against the

accused that he will be called upon to answer the allegations made against him.

To call on the accused at any other time would be tantamount to requiring the

accused to prove his innocence arid this would be a savage attack on the

administration of criminal justice in our courts and on the fundamental

presumption of innocence afforded an accused under S.33(5) of the 1979

constitution.

The protection of the accused under the constitution cannot be curtailed by a

case founded on suspicion, however strong. A conviction must be founded on

evidence establishing the guilt of the accused beyond reasonable doubt.

2.

That 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 of or exceptions allowed

under the law generally or the statute creating the offence. It is only after these

essential ingredients have been proved that the trial judge would hold that a

prima facie

case has been made out and call for the accused to make his

defence. Consequently if at the close of the case for the prosecution the

evidence led fails to meet the essential requirements, the prosecution would

have failed in discharging their constitutional burden of establishing the guilt of

the accused beyond reasonable doubt.

In the instant appeal, the prosecution must prove that; (a) the death of the

deceased was by the voluntary act of the accused and (b) that the accused had

the intent to cause such death or grevious bodily harm to the deceased.

3.

That despite the clear words of S.177(2) of the Evidence act the judicial attitude

is that, although the evidence of a co-accused is not regarded as the evidence

of an accomplice which requires corroboration, to be relied upon it is necessary

to find extraneous corroboration outside the evidence of the accused person.

It is due to the provisions of S.177(2) of the Evidence Act that the evidence of a

co-accused is not regarded by the courts 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 person.

The position therefore is that the evidence of a co- accused 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.

4.

That where counsel failed to raise, before an appellate court, the point that the

prosecution has failed to prove its case alleged against the accused, the court

may raise the point

suo motu.

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.

This is entirely a point of law founded on sections 286, 287(1) of the Criminal

Procedure Law and S.33(5) of the 1979 Constitution. Even where counsel has

not raised this issue before an appellate court, it is so fundamental to the validity

of the trial that an appellate court ought not to ignore it.