SC.48/1988

A. G. KARIBI-WHYTE, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal Division in Benin City dated 20/1/88 dismissing the appeal of the appellant against his conviction and sentence at the High Court Benin City, by Okungbowa, J. Although the facts of the case as presented by prosecution is revolting, and the conduct attributed to the appellant in the offence alleged so callous, bizarre and unreasonable; nevertheless, I believe in the constitutional provision that the accused remains innocent until the prosecution has discharged the burden of establishing a prima facie case for him to be called upon to answer the allegations made against him. This is a fundamental requirement of our criminal justice administration.

I do not intend in this judgment to state the facts in any great detail. Since my judgment is based entirely on (a) the failure of the prosecution to make a prima facie case against the appellant, and the obligation of the trial Judge to have discharged him of the offence in consequence, and (b) the error in relying on the evidence of the 6th and 7th accused persons, to establish the guilt of the appellant. I intend to state only the facts which relate to these contentions.

The facts briefly stated are that arising from a disagreement among certain youths, a group of them attacked the other group. One Monday Mozea was a victim of this attack and died in consequence. Appellant and six other persons were charged with the murder of the deceased, an offence punishable under S.319 of the Criminal Code. Of the five witnesses called by the prosecution to prove the charge of murder alleged against the seven accused persons, only PW2, Stephen Ozevbogie claimed that he was an eye witness of the assault which resulted in the death of the deceased. He was unable both in examination in chief and cross-examination to identify any of the accused persons as those who participated in the assault. The 3rd PW, Sgt. Barnabas Shagana, who investigated the offence gave evidence that one Osagie Idahosa, who was not called as a witness by the prosecution identified the appellant and stated in the presence of and hearing of the Appellant, that the Appellant was one of those who assaulted the deceased, resulting in his death. PW1, Dr. Ogbemi, gave evidence of the cause of death of the deceased who was identified to him by one Peter Mozea who claimed to be an uncle of the deceased. He concluded his evidence by saying that death was due to severe pains resulting from the injuries received. The injuries he said could have been caused by blows from blunt objects like heavy pieces of wood, planks, metal rods, human fists, heavy shoes, boots or cement blocks.