OZAKI V. STATE

• Pages: 79-102

OZAKI V. STATE

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was the duty of the learned counsel to present evidence of these matters to the

court. He did not do so and the court cannot consider what was not before it.

This appeal is therefore, hereby dismissed."

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With the greatest respect the decision of the Court of Appeal, based as it were

on the authority of

Hearts of Oaks Assurance Coy. Ltd. v. Flower & Sons" (supra)

missed the important point about section 382 of the Companies Act 1968 which is

this just as its counter part in U.K. section 436 of the Companies Act 1948 (UK.)

overruled the decision in Hearts of oaks Assurance Coy, v, Flower & Sons,

the local

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legislation i.e. section 382 of the Companies Act 1968 renders that decision no longer

applicable here.

So guided by the passage from Palmer's company Law Twenty-second Edition

Volume 1 above, I would hold that having regard to section 382 of the Companies

Act 1968 the minutes of a Company need not be kept in a bound book but may be

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recorded in loose leaf books or in any other manner in accordance with accepted

usage. provided adequate precaution is taken for guarding against falsification and

facilitating discovery.

Minutes, if signed by the chairman, are only taken as

prima facie

correct. See

Indian Zoidone

Co. (1884) 2 Ch. D. 70. They can be contradicted by other evidence.

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See

Llanharry Hemiglite Iron Ore Co. v. Reney case

(1864) 4 De G. J. & Sons 426.

The points made by the Court of Appeal in its decision on section 382 of the

Companies Act 1968 relate in my view to matters which the opposing side can raise

in evidence in order to discredit or contradict the minutes. that is matters relating to

weight of evidence not to admissibility of evidence.

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It is for the above reasons and the fuller reasons given in the lead judgment of

my learned brother Belgore J.S.C. which I have had the opportunity of reading in

draft that I allowed this appeal and held that the minutes book put in evidence was

admissible in evidence.

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OZAKI V. STATE

35

DANLAMI OZAKI

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APPELLANTS

TUKURA OZAKI

V

THE STATE

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RESPONDENT

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SUIT NO. SC. 130/1988

SUPREME COURT OF NIGERIA

OBASEKI,

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J.S.C.

UWAIS,

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J.S.C.

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KAWU,

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J.S.C.

AGBAJE,

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J.S.C.

NNAEMEKA-AGU, J.S.C.

12th January, 1990.

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Evidence - Alibi - burden of proof on accused - standard of proof - negativingby prosecution

- Effect - Accomplice - co - accused - who is - S.177(1) & (2) Evidence Act - statement

of co - accused to police implicating accused - Effect - S.27 Evidence Act.

Criminal Law and Procedure - murder- Defences - self defence - provocation -Alibi - when

and

how raised -

statement of co - accused to the police implicating another accused -

Effect -Alibi - Duly on prosecution to investigate - Effect of failure

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NIGERIAN SUPREME COURT CASES

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[1990] 1 N.S.C.C.

ISSUES:

1.

When may an accused raise the defence of alibi?

2.

What is the duty of the prosecution where the accused raises the defence of Alibi?

3.

Whether a confession of murder induced by threat is admissible in evidence

4.

Can an accused be convicted on the statement of another accused to the police. 5

5.

What is the effect of a confessional statement of a co accused against an accused

person.

6.

What is the meaning of evidential burden?

7.

Whether the trial judge was right to reject the defence of alibi put up by the

accused and which was not investigated by the prosecution.

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8.

What is the duty of the court under s.177 (1) Evidence Act?

FACTS:

Seven accused persons (including the appellants) were charged before a Kwara

State High Court for the offence of culpable homicide punishable with death contrary

to S. 221(a) of the penal code. The case for the prosecution was that the accused 15

persons murdered one Mohammed Dan Manta on or about 25th December 1981 at

Ahoko village in kwara state.

During trial, the accused persons pleaded the defence of alibi, which failed in

each case. The trial judge then went ahead to examine the evidence adduced by the

prosecution with a view to see if any defence of provocation or self defence can be 20

deduced and sustained. Although he found these defences not available to the

accused persons he also held that their defence of alibi will no longer make the

defences of provocation available to them as they will either stand or fall by their

plea.

The judge also relied on the statement of the 2nd accused implicating another 25

accused. He, therefore, found the 1st, 2nd, 5th and 6th accused persons guilty and

convicted them and sentenced them to death for culpable homicide punishable with

death.

Dissatisfied with this judgment of the trial court, the 1st, 2nd, 5th and 6th accused

persons appealed to the court of appeal on the grounds

inter alia

that the trial judge 30

was wrong in the view he took that the onus on the prosecution to disprove the alibi

of the accused was on balance of probabilities and not on proof beyond reasonable

doubt, which occasioned miscarriage of justice.

The court of appeal allowed the appeal of the 3rd and 4th appellants and affirmed

the conviction of the 1st and 2nd appellants. The Appellants further appealed to the 35

supreme court relying on their argument before the court of appeal which had been

unsuccessful.

HELD:

1.

It

is a defence where an accused alleges that at the time when the offence with

which he is charged was committed, he was elsewhere. Thus, for the defence 40

of alibi to avail an accused, the law is that notice of intention to raise the defence

must be given. This is normally done at the earliest possible opportunity by the

accused in answer to a charge by the police at the investigation stage to enable

the truth or falsity of the allegation be established by the police.

2.

Once a defence of alibi has been promptly and properly put up, the burden is on 45

the prosecution to investigate it and rebut such evidence in order to prove the

case against the accused beyond reasonable doubt. Thus, the prosecution's

duty is to negative the defence.

3.

A confession of murder induced by threat is in admissible in evidence.

4.

It is an error in law to convict an accused on the statement of another accused 50

to the police. It is a travesty of justice and gross violation of all known rules of

evidence. S.27 of the Evidence Act forbids the use of such statement even when

it is confessional.

5.

It is settled law by statute and judicial decision that the confessional statement

of a co-accused is no evidence against an accused person who has not adopted

the statement. In the instant case, as the accused person did not adopt or confirm