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In The Supreme Court of Nigeria

On Friday, the 6th day of July 1990

SC 171/1989

 

Before Their Lordships

 

 

Andrews Otutu Obaseki

......

Justice, Supreme Court

Adolphus Godwin Karibi-Whyte

......

Justice, Supreme Court

Salihu Modibbo Alfa Belgore

......

Justice, Supreme Court

Abdul Ganiyu Olatunji Agbaje

......

Justice, Supreme Court

PhilipNnaemeka-Agu

......

Justice, Supreme Court

 

 

Between

 

Ngwuta Mbele

.......

Applicant

 

And

 

The State

.......

Respondent

   

 

Judgement of the Court

Delivered by

Agbaje ,J.S.C.  

 

On 19/4/90 I dismissed the appellant's appeal summarily. I indicated then that I would give my reasons for doing so today. I now proceed to do so.

 

The appellant, Ngwuta Mbele, was charged in an Abakaliki High Court of the Anambra State of Nigeria with the murder on 18/3/84 at Inyima Amuzu Ezza in the Abakaliki judicial Division of his wife, Onwushi Agwuta. The actual trial of the case began before Offiah, J., on l7/4/85 and ended with the judgment the learned trial Judge gave in it on 30/4/85 whereby he found the appellant guilty as charged and sentenced him to death. In all five witnesses testified for the prosecution. The appellant tes­tified in his own behalf. He called no other witness.

 

In his judgment the learned trial Judge held as follows:­

 

l have carefully considered the evidence led by the prosecution and the defence. I believe the evidence of the prosecution witnesses and find that it was the accused who inflicted the machete cuts which resulted in the death of the deceased. The deceased sustained very serious injuries. From the nature of the injuries sustained and the instrument used it seems clear to me that the accused had the requisite intent for murder. From the totality of the evidence. I am satisfied that the prosecution has proved its case of murder. I find the accused guilty of murder and convict him accordingly.

 

With particular reference to the evidence of P.W.3 and P.W.4, the learned trial Judge made the following findings:

 

 P.W.3. Nworie Mbele. and Nwankwo Mbele, P.W.4, are obviously children of tender years. It was therefore urged on behalf of the accused that I should treat their evidence with caution as there can be lapses of memory. I agree. I think it is now settled law that the sworn evidence of a child need not be corroborated as a matter of law, but a jury should be warned not that they must find corroboration but that there is a  risk in acting on the uncorroborated evidence of young boy or girls though they may do so if convinced that the witness is telling the truth. See Cross on Evidence, 4th Edition, p.182 and Anebamen V. The State (1972) 4 S.C. 35 at 38. Great caution is of course required in accepting their evidence because although children may be less likely to be acting from improper motives than adults, they are more suscep­tible to the influence of third persons and may allow their imagi­nations to run away with them - Cross on Evidence p.183. As I said, I watched P.W.3 and P.W.4 give evidence in the box. They were quite intelligent and gave rational answers to questions put to them by counsel. They were unshaken in cross-examination. They gave their evidence in a cool and assuring manner and were unruffled. There is also in my view sufficient evidence to cor­roborate their story. In the first place, the accused himself in his defence admitted seeing his wife lying dead in a pool of blood. He admitted that P.W.4, Nwankwo Mbele, came out of the house at the time. He also admitted that Stephen Mbele, P.W.2, came to the scene. Stephen Mbele saw the accused. The accused had a matchet at the time. When asked why he killed his wife, the de­ceased, accused threatened to kill him. There is also the accused's statement, Exhibit B. Although the accused denied most of the contents of the statement, I find from the evidence that the accused was the author of Exhibit B and that he made it voluntar­ily. There is again evidence to corroborate the statement. Ac­cused was seen with a matchet by Stephen Mbele, P.W.2. This fact was admitted by the accused. P.W.3 and P.W.4 were at home when the incident took place. This fact was admitted by the accused in his statement.

 

Because of the main point urged in favour of the appellant in this appeal it behoves me to reproduce here all what the record of proceedings says about evidence of P.W.4 before it was taken on oath and the evidence itself in chief:-

 

P.W.4: Nwankwo Mbele was examined by me in accordance with Section 182 and 154 of the Evidence Act. She is aged about 10 years. She gave rational answers to my question 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. She is now sworn on the gun and states in Ibo as follows: I live at Amuzu Ezza. I knew the deceased, Onwushi Ngwuta. I lived with her and the accused. On the day of incident and as I woke up I saw the accused inflicting matchet cuts on the deceased. I then ran to call Stephen Mbele, P.W.2. l went to P.W.3, Nworie. Stephen accompanied us back to the house. Stephen raised an alarm, people assembled and they used a stick in knocking off the matchet from the accused's hands. Witness is shown a matchet and says, this is the matchet accused used to inflict the cuts -matchet tendered for identification - matchet marked Identification 1.

 

The appellant appealed against his conviction and sentence to the Court of Appeal, Enugu Division. The appellant's appeal was dismissed and the judgment of the trial court was affirmed. However that court as per the lead judgment of Uwaifo, J.C.A., held that the Exh. B, the confessional statement of the appellant was inadmissible because it was not recorded in the Igho language in which the appellant made it, but in English language, and the interpreter who was used in the process could not be called to give evi- B dence because of his death. For the latter reliance was placed on the dccisions in R v. Ogbuewu 12 WACA 482 and R V. Zakwakwa (1960) 5 F.S.C. 12 at 13; [l960] SCNLR 36.

 

This view of the Court of Appeal on Exh. B has not been challenged before us by the prosecution.

 

Guided by the decision in Akpan V. The State (1967) NMLR 185 at 188; Arebamen V. State (1972) 4 S.C.35 and Director of Public Prosecutions v. Hester (1973) A.C. 296 at 314, Uwaifo, J.C.A. said:-

 

The sworn evidence of a child need not as a matter of law be cor­roborated but the Judge must realise the possible danger in act­ing on such uncorroborated evidence.

 

And finally, the learned Justice of Court of Appeal held that the only evidence in this case which could properly be used as corroborative evidence of P.W.4's evidence is as follows:-

 

(1)    The learned Judge believed the evidence of P.W.2. Part of his evidence is that he saw the appellant holding a matchet. He asked him why he killed his wife. The appellant threatened to kill him with the matchet.

 

(2)    The doctor's evidence is that the injuries on the deceased were consistent with matchet cuts.

 

(3)    The appellant said in evidence that P.W.4 ran to P.W.2 crying and that IP.W.2 came back with her.

 

And he then came to the conclusion that the pieces of evidence indeed cor­roborated the evidence of P.W.4 that it was the appellant who inflicted matchet cuts on the deceased.

 

P.W.1, Dr. Eric Nzeakor, a registered medical practitioner, gave, and the learned trial Judge believed him, the following evidence as to the cause of death of the deceased:­-

 

Cause of death was excessive bleeding from the injuries re­ceived. These were matchet cuts. The most obvious instrument which might have caused these injuries was a matchet.

 

The evidence was not challenged either in the Court of Appeal or before us.

 

As I have said above the Court of Appeal dismissed the appellant's ap­peal in that court. This is a further appeal in this court by the appellant against his conviction and sentence.

 

Briefs of arguments have been filed and served. According to counsel for the appellant, Chief C.J. Okoli, the issues arising out of the appellant's grounds of appeal for determination in this appeal are as follows:­

 

i.      Whether an infant aged 10 years is competent to give evidence OD oath without a disclosure of what questions if any, were asked by the Court and what answers were given by the Court considers the child not prevented by reason of tender years to be competent to testify.

 

ii.      If not, whether there has been a miscarriage of justice where the Court forms the opinion that such child is possessed of sufficient intelligence to justify the reception of the evidence without dis­closing what questions were asked by the Court and what answers were given by the child upon which said opinion were formed, and there were no other corroborative evidence im­plicating the appellant with the offence charged.

 

iii.    Whether the concurrent findings of the Courts below that appel­lant killed the deceased, relying on the sole evidence of a child of ten years were not perverse, having regard to the prevailing cir­cumstances in particular that a child confronted with a frightful situation imagines many things.

 

Counsel for the respondent, L.O. Okolo Esq., Principal State Counsel, Ministry of Justice, Enugu, for his part, states, in the respondent's brief, as regards the issues arising for determination in this appeal:­

 

1.    Is the failure to write down the questions to and answers from P.W.4 as part of the records fatal to the conviction of the appel­lant notwithstanding the fact that the preliminary examination by way of questions and answers was actually conducted by the learned trial Judge in the open court and to the hearing of the appellant?

 

2.    Depending on the answer to question 1 above, has the prosecution not proved its case beyond reasonable doubt on the basis of the evidence of P.W.4 corroborated as found by the court of appeal or without corroboration since this is not required as a mat­ter of law and the learned trial Judge approached her evidence with great caution before accepting and relying on the same?

 

In my consideration of the issues for determination as formulated by counsel for the appellant I must necessarily consider the issues formulated counsel for the respondent. So I will stick to the issues formulated by counsel for the appellant.

 

I will start with issue 1, which raises the quest ion of the competence of .4, an infant aged 10 years, to give evidence on oath in the circumstances surrounding the taking of her evidence on oath as revealed by the record of proceedings. Counsel for the appellant, Chief Okoli, directed us to the re­cord proceedings where the following appeared as to all what the learned Judge did before he started taking the evidence of P.W.4:-

 

Nwankwo Mbele was examined by me in accordance with Sec­tion 182 and 154 of the Evidence Act. She is aged about 10 years. She gave rational answers to my question 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.

 

Counsel then submits that because of the absence from the record of proceeding of (1) the very questions which the learned trial Judge put in his en­quiry under sections 154 and 182 of the Evidence Act to P.W.4 and (2) her 10 them, it cannot be said that there was sufficient compliance by the trial Judge with the said provisions. This being the case, counsel continues, the whole of the evidence of P.W.4 has been wrongly admitted in these proceedings and should therefore be expunged from the record of this case. Counsel rounded up his submissions on this issue by saying that since the evidence of P.W.4 was the mainstay of the case of prosecution against the appellant, there was no evidence besides it on the printed evidence on which the conviction of the appellant could be sustained.

 

Sect ion 154 of the Evidence Act which deals with competence of witnesses  provide as follows:­

 

154     (1)    All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them. or from giving rational answers to those questions. by reason of tender years, extreme old age, disease, whether of body or mind. or any other cause the same kind.

 

(2)    A person of unsound mind is not incompetent to testify un­less he is prevented by his mental infirmity from under­standing the questions put to him and giving rational answers to them.

 

Sections 179 and 182 of the Evidence Act and some of the other provisions of Part X of the Act, with which we are not here concerned, deal with the taking oral evidence in court.

 

Section 179 provides thus:

 

Save as otherwise provided in sections 18l and 182 all oral evi­dence given in any proceedings must be given upon oath or affirmation administered in accordance with the provisions of Oaths and Affirmations Ordinance.

 

Section 182 which provides for the taking of unsworn evidence of a child says:­

 

(1)    In any proceeding for any offence the evidence of any child who is tendered as a witness and does not, in the opinion of the understand the nature of an oath, may be received, though not given upon oath. if, in the opinion of the court, such child is possessed of sufficient intelligence to justify the reception of the evidence. and understands the duty of speaking the truth.

 

(2)    If the court is of opinion as stated in subsection (1) the deposition of a child may be taken though not on oath and shall be admissible in evidence in all proceedings where such deposition if made by an adult would be admissible.

 

(3)    A person shall not be liable to be convicted of the offence the testimony admitted by virtue of this section and give half of the prosecution is corroborated by some other rr evidence in support thereof implicating the accused.

 

(4)    (Not relevant).

 

I am satisfied that Aguda's Law and Practice relating to evidence in Nigeria in paragraph 23-05 page 299 sub-title “Children" correctly in., the provisions of sections 154,179 and 182 of the Evidence Act is so far as they relate to the taking of the evidence of a child to which class of person P.W.4 belongs. The said paragraph 23-05 says:-

 

A child who is prevented from understanding the questions put to him or from giving rational answers to those questions by reason of tender years, is not a competent witness. The first point to note is that there is no age stated and it is therefore the duty of each court before which a child appears for the purpose of giving evidence, to determine first of all whether the child is sufficiently intelligent to be able to understand questions put to him or to be able to answer questions put to him rationally. The court does this by putting preliminary questions to the child which may have nothing to do with the matter before the court. If as a result of this investigation the court comes to the conclusion that the child is unable to understand questions or to answer them rationally, then the child cannot be a witness at all in the case. But if the child passes this test, he is submitted to a further test for the determi­nation of a further question whether he is in the opinion of the court able to understand the nature of an oath. This question is also determined by the court putting questions to the child as to the nature of an oath. He is asked about God and what will hap­pen to one who tells lies after being sworn, etc. If he fails in this respect he will nevertheless be able to give his evidence but will not be sworn, provided he has passed the first test under section 154(1), and understands the duty of speaking the truth (s.182(1)). Such unsworn testimony is admissible evidence as in the case of the sworn testimony of adults (s.182(2)).

 

On this same point I will also quote with approval the following passages from the judgment of Kester, Ag. J., as he then was, in William Omosivbe V. Commissioner of Police (1959) W.N.L.R. 209 at 211 - 212:-

 

Section 182 is identical with the provisions of the Children and Young Persons Act, 1933, in England. The law in this respect is explicitly made clear by Lord Goddard, C.J., in R  V. Reynolds 34 Cr.A.R. 63 …………………………………………………………………………………….....................

From the foregoing it is clear that before a child of tender years is allowed to give evidence, it is the duty of the presiding Judge to satisfy himself as to whether or not the child is in a position to be sworn: R V. Surgenor 27 Cr.A. R. 175. In order to form this opinion preliminary questions must be put to the child in open Court in the presence of the accused and the jury. In R V. Dunne 21 Cr.A.R. 176 it was held that the examination of the Judge out of Court of a child to determine competency to take an oath was illegal and sufficient to invalidate a conviction. In the present case the learned trial Magistrate in his judgment admit-ted that the first prosecution witness was a girl of tender age. The notes  of evidence  merely  state:  “P.W.1  -  Omotie Anumamu: (aged under seven years) sworn on the matchet …” There is nothing on the record to show that an investigation was first made in Court to justify admitting the child's evidence on oath. This is a serious omission. It is more serious than in Dunne's case where the investigation took place but not in open Court before the accused and the jury. The fact that in his judgment the learned Magistrate said that after hearing the evidence of the child in the witness box he came to the conclusion that she was mentally capable of understanding and giving an intelligent account of the case to his satisfaction, cannot satisfy this condi­tion precedent nor cure the irregularity. The next question to de­cide is whether the irregularity occasioned a miscarriage of justice as would invalidate the conviction of the appellant. The evi­dence of a child of tender age on oath does not require corroboration although if uncorroborated it is customary to warn juries not to convict on such evidence of a child except after weighing it with extreme care.

 

The learned trial Magistrate failed as a condition precedent to satisfy himself that the first prosecution witness was aware of the responsibility of speaking the truth and of the obligations of an oath, before proceeding to record her evidence on which he principally acted in convicting the appellant. There was no mate­rial corroboration of the first prosecution witness's evidence, by an independent witness which might have helped to abate the ir­regularity. I hold that there is a miscarriage of justice here, and that the appeal should he allowed.

 

Once there are clear indications in the record of proceedings that a trial Judge carried out the preliminary investigation envisaged by sections 154 and 182 of the Evidence Act before taking the evidence of a child or an infant, that, in my view, would mean, at least prima facie, that the said inquiry was carried out even though the actual questions and answers in the course of the investigations are not recorded. It will then be up to counsel for the ap­pellant to rebut this prima facie opinion by showing either that there was no investigation at all or that what the trial Judge called an investigation under sections 154 and 182 was a parody or travesty of the investigation envisaged.

 

In coming to the conclusion I have just reached 1 am persuaded by the following passage in the judgment of Hurley, C.J., in Olawoym V. C. 0. P. (1962) N.N.L.R. 29 at 33:-

 

To paraphrase the words of the Federal Supreme Court in. judgment in Kano Native Authority V. Raphael Obiora N.R.N.L.R. 42 at page 47; [1195] SCNLR 577 we think that question whether there has been a fair hearing is one of substance, not of form, and must always be decided in the light of realities of any particular case.

 

I also bear in mind what the Lord Chief Justice said in Regma v. Langham  (The Times April 25. 1972), as regards the maxim justice must be seen to be done, that it was easy to reply on the hallowed phrase justice must be seen to be done in order to raise a com plaint over a  very wide field. But in order that justice was not seen to be done it was necessary to point to some factors on which the doing of justice depended and then to show that that factor was not visible to those present in court.

 

Counsel for the appellant has not by evidence rebutted the clear indications in the record of proceedings as to the learned trial Judge having carried out the preliminary inquiry pursuant to Sections 154 and l82 of the Evidence Act before taking the evidence of P.W.4. So I reject the submission of coun­sel for the appellant that the learned trial Judge did not carry out the inves­tigation. This however is not the end of the matter.

 

It still remains to be seen, whether the result of the investigation which the learned trial Judge carried out entitled him to take the evidence of P.W.4 on oath under Section 179 of the Evidence Act. I have said earlier on in this judgment that Section 182. provides for the taking of unsworn evidence of a child subject to certain conditions or safeguards. The record of proceedings shows that the learned trial Judge as a result of his investigation was satisfied that P.W.4 understood the duty of speaking the truth and was possessed of sufficient intelligence to justify the reception of her evidence. This result would entitle the learned trial Judge to take the unsworn evidence of P.W.4 under Section 182 of the Evidence Act. But that result without anything more will not entitle the learned trial Judge to take the evidence of P.W.4 under Section 179 of the Act. That something more will be investigated showing that P.W.4 understood the nature of an oath. There is no indication at all that the learned trial Judge appreciated this aspect of the point at issue let alone that he carried out any test at all with a view to determining whether in his opin­ion P.W.4 was able to understand the nature of an oath. In the absence of any indication in the latter regard I must hold and I do hold that the learned trial Judge was wrong to take the evidence of P.W.4 on oath. The evidence of P.W.4 is not altogether inadmissible in this case. It only means that it is only admissible as unsworn evidence of a child under section 182(1) of the Evidence Act. The implication of this is that, because of section 182(3) of the same Act, the appellant cannot properly be convicted on the uncorroborated evidence of p.w.4.

 

The question now is whether there is sufficient corroborative evidence of that of P.W.4 in Law to warrant the conviction of the appellant for the offence of the murder of his wife for which he stood trial.

 

Both the trial court and the Court of Appeal found that there was. So re are faced with concurrent findings of fact of the two courts below on the point. I am limiting the concurrent findings of fact on corroboration to those found by the Court of Appeal. I do not countenance the argument in the respondent’s brief to the effect that the Court of Appeal was wrong to have re­d the findings of the trial court in respect of certain pieces of evidence which the trial Court held to be corroborative evidence of the evidence of W.4. I do this because the prosecution has not filed a cross appeal challenging the decision of the Court of Appeal on the point.

 

The authorities are clear that this court will not interfere with the con­current findings of fact of the two courts below unless there is a miscarriage justice.

 

A significant finding of fact on the question of corroboration of the evi­dence of P.W.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.

 

P.W.2     in his evidence said:­-

 

Stephen Mbele sworn on gun, states in Ibo. I live at Inyima Amuzu, Ezza. I am a farmer. I know the accused. I knew Onwushi Ngwuta as deceased. She was the accused's wife. I know Nworie Mbele and Nwankwo Ngwuta came to my house on the day of the incident. They were crying when they came to my house. They told me something concerning the accused and his wife. I accompanied them to their house. There I saw the deceased, Onwushi Ngwuta, lying dead in a pool of blood. I saw the accused also. He was holding a matchet. I asked him why he kil­led the deceased. He said I should wait and that he would tell me why he killed her. He threatened to kill me with the matchet. I raised an alarm. Some villagers responded to the alarm. They as­sisted me to remove the matchet from him. We used a stick in knocking off the matchet from him. We apprehended him tied him up. We sent for our chief who later reported the matter to the Police. The Police then received the body. The deceased had matchet cuts on the neck and other parts of the body. The ac­cused is my half brother. I have known him for years and he has never behaved abnormally.

 

The evidence of P.W.4 was damning against the appellant. It shows that it was the appellant who inflicted the matchet cuts on the deceased, his wife, as a result of which the latter died. So corroborative evidence of the evidence of P.W.4 must be evidence outside of that given by P.W.4 which renders it probable that the evidence of P.W.4 to the effect that it was the appellant who inflicted the fatal injuries on the deceased was true and that it was reasonably safe to act on it. See R. V. Baskerville (1916) 2 K.B.D. 658 at 665 and R v. Ornisade & 17 Ors. (1964) NMLR 67.

 

Before I consider the significant evidence of P.W.2 on the issue of cor­roboration, I should mention the following evidence which the Court of Ap­peal regarded as corroborative evidence of that of P.W.4, namely:­-

 

(2)    The doctor's evidence is that the injuries on the deceased were consistent with matchet cuts.

 

(3)    The appellant said in evidence that P.W.4 ran to P.W.2 crying and that P.W.2 came back with her.

 

The doctor's evidence shows no doubt that there was a felonious killing. But nothing in the evidence linked or tried to link the appellant with the crime. 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 appellant who committed it. See again R. v. Baskerville (supra) at page 667. So 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 from the appellant did not show that an offence has been committed let alone that he committed it.

 

So, I am now left with the evidence of P.W.2 on the issue of corroboration. In assessing the evidential value of the evidence in this regard I will permit myself to be guided by the following passage in the opinion of the Privy Council in Hall V. Reginam (1971)1 All E.R. 322 at 324:-

 

It is a clear and widely known principle of the common law Jamaica, as in England, that a person is entitled to refrain from answering a question put to him for the purpose of discovering whether he has committed a criminal offence. A fortiori he is under no obligation to comment when he is informed that someone else has accused him of an offence. it may be that in very exceptional circumstances an inference may be drawn from failure to give an explanation or disclaimer, but in their Lordships' view silence alone on being informed by a police officer that someone else has made an accusation against him cannot give rise to an in­ference that the person to whom this information is communicated accepts the truth of the accusation. (Italics mine).

 

The gist of the evidence of P.W.2 is that following what P.W.4 told him he went immediately thereafter to the scene of the crime; when he got there he found the deceased lying dead in a pool of blood; the appellant was there too, holding a matchet in his hand; P.W.2 then accused the appellant of kil­ling the deceased and demanded an explanation for the act; the appellant neither gave an explanation nor a disclaimer; instead the appellant threatened P.W.2 with the matchet he, the appellant, was holding, after tel­ling P.W.2 to wait and he, the appellant, would tell P.W.2 why he, the appel­lant, killed his wife.

 

It appears very clear to me from the analysis of the evidence of P.W.2 I have just made that the evidence of P.W.2 does not consist only of the failure of the appellant to give an explanation or a disclaimation after having been accused of the crime in question. In other words the evidence of P.W.2 does not rest on this alone. In addition. P.W.2 found the appellant at the scene of the crime with the dead body of the deceased in a pool of blood and with the instrument, according to the evidence of P.W.4, with which the deceased was killed in his hands. The appellant showed aggression on the day by threatening P.W.2 with the weapon. All these facts from the evidence of P.W.2 taken along with the failure of the appellant to give an explanation or a disclaimer when he was accused of having killed his wife and the insinua­tion of his having admitted the same when he told P.W.2 to wait and he would tell him why he killed the deceased. leave me in no doubt that they render it probable that the evidence of P.W.4 was true and that it was reason­ably safe to act on it.

 

In effect I am satisfied that in fact and in law the evidence of P.W.2 was corroborative of that of  P.W.4

 

All what I have regarded above as corroborative evidence was circumstantial evidence. Nevertheless, it has been said in R v. Baskerville (supra) at 667 that the corroboration need not be direct evidence that the ac­cused committed the crime and it is sufficient if it is merely circumstantial evidence of his connection with the crime.

 

The conclusion I reach therefore is that I can find no justifiable reason disturb the concurrent findings of the two lower courts as to the guilt of the This disposes of issues 2 and 3 raised in the appellant's brief of arguments. For I can find no miscarriage of justice in the finding of the two lower court that the evidence of P.W.2 corroborated that of P.W.4.

 

It is for the above reasons that I dismissed on 19/4/90 the appellant's appeal and affirmed his conviction and sentence.

 

Judgment delivered by

Obaseki, J.S.C.

 

I dismissed this appeal on the 19th day of April, 1990 after reading the record of proceedings and judgment in the court below, the briefs of argument in the appeal filed by counsel to the parties, and hearing counsel at the oral hearing, and reserved my reasons for the judgment till today. I now proceed to give my reasons for the judgment.

 

The appellant was tried and convicted of the offence of the murder of his wife, Onwushi Ngwuta, on 18/3/84 at Inyima Amuzu, Ezza, in the Abakaliki Judicial Division of the High Court of Anambra State. The case against the appellant is that he inflicted serious matchet cuts on the deceased and these injuries caused her death. The appellant denied being responsible for the injuries although he admitted seeing the deceased in a pool of blood. The only eye witness was Nwankwo Mbele, P.W.4, a girl of 10 years of age. She gave evidence on oath after the learned trial Judge, Offiah, J., examined her in accordance with sections 182 and 154 of the Evidence Act to satisfy himself that she understood the duty of testifying on oath - to speak the truth  and that she possessed sufficient intelligence to justify reception of evidence.

 

In her testimony, she said she woke up that morning and saw accused/appellant inflicting matchet cuts on the deceased. The appellants appeal to the Court of Appeal was unsuccessful and the appellant has now appealed to this court against the sentence. The appellant's contention that:

 

(1)    a child of 10 years of age is too young to understand the an oath and the duty of speaking the truth; and

               

(2)    accordingly there is danger of acting on the uncorroborated evidence given by such a child.

 

There can be no doubt that as a matter of law the sworn evidence of a child need not be corroborated. See Akpan v. The State (1967) NMLR 185 at 188; Arabamien v. The State (1972)4 S.C.35 and Director of Public Prosecutions v. Hester (1973) A.C.296 at 314.

 

Before today, I have had the advantage of reading the draft reasons for judgment just delivered by my learned brother, Agbaje,J.S.C. He has considered in detail all the issues raised in this appeal in issue of corroboration of the sworn evidence of a child of the tender age of 10 years and the danger of acting on such evidence without corroboration.

 

I find myself in agreement with the opinions expressed by brother, Aghaje, J.S.C., on all the issues raised in this appeal. I adc as my own. It was for the above reasons and the fuller reasons set ot reasons for judgment delivered by my learned brother, Agbaje, J.S.C., I dismissed the appeal.

 

Judgment delivered by

Karibi-Whyte, J.S.C.

 

I summarily dismissed the appeal of the appellant on 19/4/90 and I indicated then that I will give my reasons today. 

 

I have read the reasons given by my learned brother, Agbaje for dismissing this appeal. I am satisfied that he has dealt with the issues involved which are already well settled and so completely that I consider it unnecessary to add my own opinion which could not be different. 1 agree entirely with them and adopt them as mine.

 

Judgment delivered by

Belgore, J.S.C.

 

I read in draft form the reasons for judgment by Ag­baje, J.S.C., and I am in full agreement with him. It was for the same reasons I dismissed this appeal on 19th day of April, 1990.

 

Judgment delivered by

Nnaemeka-Agu, J.S.C.

 

On the 19th of April, 1990, the appellant's appeal was dismissed summarily. After reading the record of proceedings and the brief of the appellant and listening to the arguments of counsel, I dismissed the appeal and adjourned the matter till today to give my reasons for the dismissal of the appeal. I now proceed to do so.

 

I have had the privilege of a preview of the reasons for judgment just de­livered by my learned brother, Agbaje, J.S.C., and I agree with his reason­ing and conclusions. I only wish to underscore a few points.

 

One principal complaint on behalf of the appellant is that the learned trial Judge failed to comply with the provisions of sections 154 and 182 of the Evidence Act. Now part of the record of the learned trial Judge runs as follows:-

 

Nwankwo Mbele was examined by me in accordance with sections 182 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.

 

Learned counsel for the appellant has attacked this procedure. The gist of his submission is that the learned trial Judge ought to have recorded the specific questions he put to the child of tender years and the answers he got therefrom, 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 learned Principal State Coun­sel for the respondent on the other hand submitted that the above record shows that the sections of the law have been substantially complied with and that, in any event, there has been no miscarriage of justice.

 

To some extent, I think the learned Principal State Counsel is right. To begin with none of the cases which the learned counsel relied upon appears to support the proposition he has advanced. The case of William Omosivbe v. Commissioner of Police ( l959) W.N.l..R. 209 was one where the learned Magistrate did not at all advert his mind to the requirement of the  law. The record did not show that he asked any question at all. The present case in which the record clearly shows that the learned trial Judge put the necessary and questions and came to the correct conclusions on them, although those ques­tions were not clearly spelt out is different. In the case of Rex V. Dunne 21 Cr. A.R. 176, the Judge held the preliminary examination of the small child outside the court. In the instant case. the record clearly shows that the examination was done inside the court as a part of the proceedings and it has not been disputed that the questions were asked as recorded. In the case of William John Surgenor (1940) 27 Cr. A.R. 175, the learned trial Judge merely accepted the opinion of the committing justices on the point without any further investigation. It is clear, therefore, from all these that the cases which the learned counsel for the appellant relies upon for his propositions do not support his submission.

 

This brings me to the true interpretation of section l82(I) of the Evidence Act. That section says:

 

S.182    (1)       In any proceedings for any offence the evidence of any child who is tendered as a witness and does not, in opinion of the court, understand the nature of an oath, may be received, though not given upon oath, if, in the opinion of the court, such child is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth.

 

The first important observation that must be made is that the sub-section says if “any child who is tendered as a witness…does not, in the opinion of the court, understand the nature of an oath", or does not show that he is possessed of sufficient intelligence and understands the duty of speaking the truth to justify the reception of his evidence on oath, then his evidence may be received by the courts even though it has not been given on oath. It does not state that there must be a mini-trial before the opinion of the court is reached on the point. Indeed, there is no prescribed procedure under section 182(1) for that. All that is necessary is that before the full view of all in open court, the Judge puts the necessary preliminary questions to enable him reach a decision on the point, and that that he has done so is borne out by the record, and that the manner he puts the questions complies with the rules of natural justice. Ideally a Judge may, ex abundantia cautela, put down in his record what questions he asked and what answers he got which enabled him to reach his conclusions on the point. But in my opinion, that he has failed to record them is not fatal to his conclusions once his record that he put the necessary questions and got the proper answers. In the instant case, I am satisfied that as far as the procedure adopted goes there ha~ been a sufficient compliance with the law.

 

But that is not the end of the problem with respect to the reception the evidence of P.W.4. In this respect, I must once more reiterate the function of a court faced with the testimony of a witness who appears to be a child within the meaning of the law. I can do no better here than repeat what stated in this court in the case of Asuquo Eyo Okon and 2 Ors. v. The State (1988) 2 S.C.N.J. (Part 1)45 at p.53 (l988) I NWLR (Pt.69) 172,, said:

 

It is my view that once a witness is a child, by the combine effect of sections 154 and 182(1) and (2) of the evidence Act, the child is sufficiently intelligent to understand the questions he may be asked in the course of his testimony and to be able to answer rationally. This is tested by the court putting  to him preliminary questions which may have nothing to do with the matter before the court. If, as a result of these preliminary questions, the court comes to the conclusion that the child is unable to understand the questions or to answer them intelligently, then that child is not a competent witness within the meaning of section 154(1). But if the child passes this preliminary test then the court must proceed to the next test as to whether, in the opinion of the court, the child is able to understand the nature and implications of an oath. If after passing the first test he fails this second test, then being a competent witness he will give evidence which is admissible under section 182(2), though not on oath. If. on the other hand, he passes the second test so that, in the opinion of the court, he understands the nature of an oath, he will give evidence on oath.His evidence thus given will be admissible and be admitted.

 

It is thus clear that 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?

 

If the answer is in the affirmative, then to the second question:

 

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.

 

Applying the above principles to the case in hand. it appears tome from the extract of the learned trial Judge's record set out above. that he adverted to the first of the above questions but not the second. As it is so. it appears to me that the positive answer to the first question entitled him to receive her evidence. But as the second question was not adverted to. she ought not to have been sworn. So, the evidence of P.\V.4 must be treated as an unsworn testimony of a child under the section. It would require corroboration by reason of section 182(3).

 

As for evidence in corroboration of the evidence of P. W.4, I agree with the two lower courts that it is to be found in the evidence of P.W.2. It was Wrong. however. to have treated the medical evidence of Dr. Eric Nzeako (P.W.1) as corroborative evidence. For, corroboration requires that such evidence must be of a material particular implicating the accused. Although evidence of P.W.1 is maternal, it does not in anyway implicate the appellant.

 

For the above reasons and the fuller ones contained in the Reasons for Judgment just delivered by my learned brother, Agbaje, J.S.C., I dismissed the appellant's appeal on 19/4/90 and postponed the reasons for my judgment till today.

 

Appeal dismissed.

 

 

Counsel

 

J.C. Okonkwo Esq.

  ........

For the Appellant

D.O. Okolo, Principal State Counsel,

 Anambra Ministry of Justice

With Mrs.C.O. Nweke, Senior State Counsel,

Anambra State Ministry of Justice

  ........

For the Respondent