OROSUNLEMI V. THE STATE

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138

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NIGERIAN SUPREME COURT CASES

[1967] N.S.C.C.

OROSUNLEMI V. THE STATE

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EMMANUEL OROSUNLEMI

V

THE STATE

SUPREME COURT OF NIGERIA

BRETT,

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Ag. C.J.N.

COKER,

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J.S.C.

LEWIS,

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J.S.C.

28th April, 1967.

APPELLANT

RESPONDENT

SUIT NO. SC 53/1967

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Criminal Appeal - Murder - Misdirection by trial judge - Effect - Whether any

substantial miscarriage of justice - Onus on prosecution to prove no miscarriage

- Proviso to Section 26(1) Supreme Court Act, 1960.

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Evidence - Child of tender years - Absence of corroboration of sworn evidence

- Court failing to warn itself of the risk of acting on such evidence -

Desirability of warning - Effect of absence of warning.

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ISSUES :

1.

Whether the failure of a trial Judge to warn himself of the risk of acting on the

uncorroborated sworn evidence of a child of tender years will always amount

to a substantial miscarriage of justice.

2.

Whether every misdirection by a trial Judge will amount to a substantial

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miscarriage of justice.

3.

Whether an inference of guilt can be drawn from the fact that an accused person

does not surrender himself to the police when he knows he is being looked for,

or from his running away from them on the day of his arrest.

4.

Whether the proviso to Section 26(1) of the Supreme Court Act, 1960 places

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any burden on the prosecution to satisfy the Court that no substantial

miscarriage of justice has occured.

FACTS:

The appellant was convicted of murder in the High Court of Western Nigeria.

The prosecution adduced detailed evidence through the eleven year old daughter

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of the deceased of how he (the deceased) was killed and it was upon this sworn

evidence that the Court convicted the appellant.

On appeal aga nst the conviction it was argued on behalf of the appellant that

in accepting the testimony of the eleven year old girl, the learned trial Judge failed

to warn himself on the danger of acting on the uncorroborated sworn evidence of

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a child of tender years and that there was no corroboration of her evidence where

the same inculpated the appellant. Counsel urged further that the appellant was

prejudiced by the erroneous finding of the trial Judge to the effect that the appel-

lant's failure to submit himself to arrest after he became aware that he was being

looked for by them was inconsistent with innocence.

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