Clement Obri Vs The State (1997)
LAWGLOBAL HUB Lead Judgment Report
KUTIGI, J.S.C.
The appellant was charged with the offence of murder contrary to section 319(1) of the criminal code. He pleaded not guilty to the charge. Thereafter the prosecution called five witnesses and tendered some exhibits. The appellant testified in his own defence and called no witness.
The learned trial judge in a considered judgment found the appellant guilty as charged and sentenced him to death.
Being dissatisfied with the judgment of the High Court, the appellant appealed to the Court of Appeal, Enugu Division. Three issues were formulated for its determination thus:-
“(i) Did the learned trial judge comply with sections 154(1) and 182(1) of the Evidence Act before he received and relied on the evidence of PW 1 to convict the accused and can the conviction stand
(ii) Do the irregularities committed by the learned trial judge in the course of the trial not amount to denial of fair hearing to the accused
(iii) Given the irreconcilable contradictions between the previous statement to the Police and the testimony in court, was the learned trial judge right to have relied on the testimony in court of PW.1 to convict the accused”
Each of the above issues was considered and resolved against the appellant. Consequently his appeal was dismissed by the Court of Appeal and the conviction and the sentence of the High Court were confirmed.
The appellant has now appealed against the judgment of the Court of Appeal to this Court. In accordance with the Rules of Court, the parties filed and exchanged briefs of argument. These were adopted and relied upon at the hearing and in addition, oral submissions were made.
Chief Onyali learned counsel for the appellant in his brief submitted the following three issues as arising for determination in the appeal:-
“1. Whether the Court of Appeal was right when it came to the conclusion that the trial Judge had complied with the provisions of sections 155(1) and 183(1) of the Evidence Act, Cap. 112 Laws of the Federation of Nigeria, before receiving the evidence of PW.1. a small child aged about 7 years.
- Whether the Court of Appeal was right when it refused to consider the effect of the contradictory statement made by PW.1 to the Police simply on the ground that the said statement was not tendered in evidence even though the said statement had formed part of the record of proceedings before the Court of Appeal.
- Whether the Court of Appeal was right to have come to the conclusion that there had been sufficient corroboration of the evidence of PW.1 from the evidence of PW.2, PW3 and PW.4.”
What is common to all the three issues above is the evidence of PW.1. His evidence was either not properly received, contradictory with his extra judicial statement to the Police, or not at all corroborated. Because of the importance of the evidence of PW.1 who was the only eye witness among the five prosecution witnesses, this court at the hearing and on the application of the learned counsel for the appellant, Chief Onyali, and in the interest of justice admitted in evidence the extra-judicial statement which PW.1 made to the Police dated 23/9/84, the day the alleged murder was committed. It was marked Exhibit SC.1. It could be seen that even in the Court of Appeal, two out of the three issues submitted for determination revolved around the evidence of PW.1. Certainly as the lone eye witness, the importance of his evidence cannot be over-emphasized.
Now, PW.1 (Ogar Joseph) the record shows was a child of about seven year, of age at the time he appeared in court before the learned trial judge on 27/11/85. He must therefore be aged about six years at the time the offence was committed on 23/9/84. PW.1 who was said to be a brother of the deceased testifying on page 12 of the record said amongst others:-
“On the day this thing happened I was sleeping when the accused Clement, came in with one person and tied Okara to his bed. He picked one knife from the cupboard and cut his throat. Witness points to the neck region. After cutting the deceased, the accused started to shout that thieves had killed Okara. The other person ran away. As accused was shouting he used the knife and inflicted a wound on his shoulder. The accused then, threw the knife into the bush in front of our house. The incident happened at night but the accused had brought in a lantern. I was sleeping as I laid down but accused’s noise woke me.”
Under cross-examination he said:-
“I made a statement to the Police. It is true that on the fateful date, I was with my brother – the deceased – in the house and also with the accused and that we had our meal together.”
As I said above, the witness PW.1, as rightly admitted by him, had made a statement to the Police on 23/9/84, the very day the incident happened. In the said extra-judicial statement (Exhibit SC.1) the witness said inter alia:-
“In the night of 22/9/84, the deceased Okara, Clement and myself ate food-supper. When we finished, Okara went outside on trousers saying that he was going to take bath. Clement asked him to come for us to sleep. The deceased replied that he should be left alone. Clement and I went and slept on the floor of the room. When Clement shouted that thief had killed Okara I woke from sleep. I saw Okara on the bed in pool of blood . He was bound hand and feet. Our lamp was on and electric light. There was blood on my head. The landlady came out. I went to sleep in her room. By the time I got up there was blood on the body of Clement. He told me to wash the blood on my head. He too, washed the one on him. We had slept before the deceased came in and I cannot tell if he locked the door before he slept.”
It is glaring that PW.1 made a clear and unambiguous statement (Exhibit SC.1) to the Police showing that he did not witness the murder. He was asleep. But surprisingly in his evidence in court he claimed to be an eye witness to the extent that he saw the appellant cut the throat of the deceased. If as the witness claimed he was sleeping, definitely he did not witness anything like seeing the appellant cutting the throat of the deceased. The fact of murder or death of the deceased was proved beyond doubt. But the issue here is – who killed the deceased There is no doubt that the evidence of PW.1 in court and his extra judicial statement to the Police violently contradict one another on the crucial point of whether or not he saw the murderer commit murder in this case. The law on the point is quite clear.
And that is that where a witness’s real testimony in court contradicts or is inconsistent with his previous extra judicial statement, the court should not only regard the sworn oral testimony as being unreliable but also the previous statement whether sworn or unsworn as not constituting evidence upon which it can act. Consequently, neither of the two versions of the story is worthy of any credit and therefore incapable of establishing the truth. (see R. v. Ukpong (1961) All NLR 25, Asanya v. The State (1991) 3 NWLR (Pt.180) 422, Oladejo v. The State (1987)3 NWLR (part 61) 419, Umani v: The State (1988) 1 NWLR (Pt 70)274, Esangbedo v. The State (1989) 4 NWLR (Pt. 113) 57.
The appellant as I said denied the charge. In his statement to the Police (Exhibit 8) he said:-
“Nobi me do the thing. Nobi me kill my brother Okara. I been sleep for carpet for ground with Ogar and the carpet near the bed where Okara been sleep. As I they sleep somebody cut me with knife for my shoulder. I run commot outside and I begin to shout thief, thief. Ogar too run follow me. I go knock the landlady for door and she wake up. I tell am say them cut me something for my back. The landlady ask me say where Okara, I tell am say Okara sleep there for house. Me and landlady carry lamp go for our room and before we reach there Okara don die. Them cut Okara something for neck and he been lie for bed. Blood been dey commot Okara for neck and blood been pour for bed and pillow case. Me and landlady come go report for Police….”
And in his testimony before the trial Court he also said:-
“On 22/9/87, being Saturday, I went to the market in the morning at about 8a.m. I supplied meat as usual and then returned home. After returning I carried my motor cycle battery to the electrician. I was with him till about 6p.m. I went into my house and met PW.1 and one other man. Deceased told me that we have a stranger 1 and one other person. That I should go to Ishibori to tell the wide to prepare food for them. The wife told me that she couldn’t because she was tired. I returned and told the deceased. He told me to go and buy food. I went and bought food for the stranger and the PW.1.
All of them ate. The stranger said he was going to Okuku but will return later in the evening to spend the night with us. He did not return in time. The deceased left for the house of the nearby girlfriend. I put a goat skin on the ground and put bed sheet and I layed down with PW.1. The deceased shut the door and left for the girl friend’s house.
The PW.1 and I slept. I did not know when the deceased returned.
In the midnight, I heard someone stabbed me on my shoulder. I shouted – thief, thief, thief, but no one came out. I went to PW.2 and woke her up. She brought a lantern to our house and then I saw that my friend had been killed. I cried. I asked PW.2 to take me to the Station and there I reported the matter to the Police …”
The record abundantly shows that the learned trial judge relied solely on the unreliable evidence of PW.1 to convict the appellant. I know he did talk of corroboration of PW.1’s evidence in certain respects, but once PW.1’s evidence was declared unreliable, then there is nothing to be corroborated in his evidence by any other evidence. The only logical conclusion therefore is that there was no proof that the appellant caused the death of the deceased, an essential ingredient of the offence of murder.
The appeal therefore succeeds and it is hereby allowed. The judgments of both the High Court and the Court of Appeal are accordingly set aside. The appellant is found not guilty of the offence charged and is hereby discharged and acquitted.
A. B. WALI, J.S.C: I have a preview of the lead judgment of my learned brother Kutigi, JSC and I agree with it. I only want to contribute the following by way of emphasis. The success or failure of the prosecution’s case is hinged to the evidence of PW1, a boy of about 6 years when the offence was committed and about 7 years old when he testified in court. Before his evidence in court, he made extra-judicial statement to police which was not put in evidence at the trial, though PW1 was cross-examined on its contents. With the consent of both the prosecution and the defence the extra-judicial statement was put in evidence and marked Exhibit SC 1 in this Court.
It is evident from both evidence of PW1. and Exhibit SC 1, the witness was asleep when the incident took place. In his evidence, he said:
“On the day this thing happened I was sleeping when the accused Clement, came in with one person and tied Okara to his bed. He picked one knife from the cupboard and cut his throat. After cutting the deceased the accused started shouting that thieves had killed Okara. The other person ran away………..I was sleeping as I laid down but accused’s noise woke me up.”
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Under cross examination he said:-
“When they tied him and cut his throat, I did nothing but laid down quietly to observe all that they were doing. I was not sleeping but my eyes were shut when he brought a lantern close to me to find out if I was asleep.”
In exhibit SC I he stated as followings:-
“In the night of 22/9/84 the deceased Okara Clement and myself ate food-super, when we finished Okara went outside on trousers saying that he was going to take bath. Clement asked him to come for us to sleep. The deceased replied that he should be left alone. Clement and I went and slept on the floor of the room. When Clement shouted that thief had killed Okara, I woke from sleep.”
Both the evidence of P.W.1 and his extra-judicial statement showed beyond any doubt that the witness cannot be an eye witness to the happening of the incidence leading to the deceased’s death as he was fast asleep at the time and only awakened by the shout of the appellant after it had happened. The best that could be said about this evidence is that it is circumstantial which did not identify the appellant as the only person that could have committed the offence. To further weaken inference on the evidence that it was the appellant that committed the crime is the statement contained in Exhibit SC 1 that appellant was in company of another person who ran away immediately after the offence was committed. Where the credibility of a witness is successfully impeached his evidence loses probative value: Ayanwale & Ors v. Atanda & Anor.(1988)1 SC1; (1988) 1 NWLR (Pt.68) 22. There was no evidence by the prosecution explaining the contradiction. If the prosecution’s case was to be proved beyond reasonable doubt, it was necessary and imperative on the prosecution to disprove the appellant’s allegation that it was somebody else that slaughtered the deceased. See Opayemi v. The State (1985) 2 NWLR (Pt. 5) 101; Eze Ibeh v. The State (1997) 1 KLR 134; (1997) 1 NWLR (Pt.484) 632; Frank Onyenankeya v. The State (1964) 1 All NLR 151; Oje v. The State (1972) 1 All NLR (Pt.11) 385 and Jizurumba v. The State (1976) 1 All NLR 219.
If an accused person made an allegation that someone else committed the offence, it is incumbent on the prosecution to rebut the allegation by evidence. In the present case, failure by the trial court and the Court of Appeal to consider properly the defence raised by the appellant coupled with the prosecution’s failure to satisfactorily explain the contradiction between the evidence of P.W.1 and his extra-judicial statement Exhibit SC 1 and of which the trial court based its judgment as an eye-witness to the murder of the deceased, lead to miscarriage of justice. See Njovens v. The State (1973)5 SC 17 at 35.
The prosecution’s case has not been proved beyond reasonable doubt. See Valentine v. The State(1980)1-2 SC 116; Ohunyon v. The State (1996) KLR (Pt.38) 359. The appellant is entitled to the benefit of doubt created in prosecution’s evidence ..
It is for these and the more detailed reasons in the lead judgment of my learned brother Kutigi, J.S.C. that I also hereby allow the appeal and enter a verdict of acquittal and discharge in favour of the appellant.
Other Citation: (1997) LCN/2727(SC)
