Jonathan Igbi & Anor V. The State (2000)
LAWGLOBAL HUB Lead Judgment Report
AYOOLA, J.S.C.
The appellants were two of eight persons jointly charged at the High Court of (what was then) Bendel State with the offences of conspiracy to commit felony contrary to section 519 of the Criminal Code, Cap. 48 Vol II Laws of Bendel State of Nigeria, 1976 and murder contrary to seclion 319 (1) of the said Code. The two appellants, Jonathan Igbi and Okiemute Odibo, who were respectively 6th and 8th accused at the trial, now, respectively the Ist and 2nd appellants on this appeal. In the course of the trial three of the accused persons had died in prison and three were acquitted and discharged at the conclusion of the trial. The two appellants were found by the High Court of Bendel State (as it then was) not guilty of the offence of conspiracy but guilty of offence of murder as charged and incurred the mandatory sentence of death by hanging on 31st July 1991. Their appeals to the Court of Appeal were dismissed on 17th September 1998. These appeals are from the decision of the Court of Appeal. The background facts, taken largely from the summation of [he facts by Achike, J.C.A, (as he then was) who delivered the leading judgment of the Court of Appeal, with which Muhammed and Rowland, J.C.A. concurred, were as follows: On the night of 24th May, 1986 Abel Emunemu (“the deceased”) Josephine, Michael Eyeta (pw 1 “), David Emunemu (“pw 2”), Grace Edema (“pw3) Moses Eseguoro (“pw 4”) and others attended a burial ceremony in a neighbouring village called Otumara at which pw 3 was one of the chief mourners. The deceased and the others had attended the ceremony on the invitation of pw 3. The two appellants, among several others, were present at the ceremony. In the course of the ceremony, at about 3 am on 25th May, 1986, the deceased was alerted by one Umuboro (7th accused) that some Otumara boys were planning to attack him and those with him on their way home because the deceased, it was alleged, was befriending one Josephine who had once been a girlfriend of one of the Otumara boys and because the deceased had the effrontery of bringing her to their village. The deceased, with the help of pw 1, sent Josephine away at about 12 midnight. After the 7th accused had come back again to warn the deceased and his group that the Otumara boys had gone to waylay them on the road, the deceased, pw 2 and pw 4, against the advice of pw 3, decided to go back to Igun through an alternative road which, unknown to them, was the route where their assailants were waiting. On their way home, they were chased by a group of boys who were armed, among whom were the two appellants. At a nearby bush the deceased was matcheted to death. Pw 2, and pw4 gave eyewitness accounts of the killing of the deceased by the appellants and others. At their trial the appellants pleaded not guilty to the two counts, respectively of conspiracy and murder.
The 1st appellant’s case at the trial was that he was present at the burial ceremony which started in the evening of 24th May, 1986 and continued on 25th May, 1986 where he was the master of ceremony. As the ceremony was about to start, people from other villages came. Upon hearing a shout of ‘thief, thief’ between 11pm and 12 midnight by one Eduriere and his wife, people at burial ceremony ran towards Eduriere’s house where he and the others who ran there were told that the thieves had run towards Igun village. After he had gone to his house and returned to Eduriere’s house, he saw some people who had run towards Igun returning to Otumara saying that the thief had been killed. Thereafter he went home and slept. He denied that he killed the deceased or conspired with anyone to kill him. He repudiated his statement to the police Exhibit 8. The 2nd appellant’s case was that he was at the burial ceremony on 24th May, 1986 and that he was there till 25th May, 1986 when he went home at about 3.00 a.m. When he was at the party he did not hear any shout of “thief, thief’. He denied that he saw anyone being killed in the night of 24th May, 1986 and early hours of 25th May, 1986 or seeing anybody being pursued that night. His defence was a complete denial. The main witnesses for the prosecution were the 2nd and 4th prosecution witnesses the substance of whose evidence the trial judge summarised thus:
“On their way back home from the ceremony, 2nd and 4th p.ws. heard a gun shot and a loud voice ordered them to Stop. The deceased, 2nd and 4th p. w.s began to run towards the direction of Igun. They were pursued by some people and after a while they dashed into the bush. The deceased and the 2nd p.w. dashed into the bush on the left and hid behind some grasses known as Awolowo grass whilst the 4th p.w. dashed to the right. It was a bright moonlight night Shortly afterwards the 6th accused person whom the 2nd p.W. saw very clearly and who the 2nd p.W. had known before 24/5/86 came to where they were hiding and began to inflict machete cuts on the deceased. The other accused persons joined the 6th accused person to beat the deceased. The 4th p.w. also ran into the bush but dashed to the left hand side while the deceased and 2nd p.W. dashed to the right close to where he was hiding about 18 feet (6 metres) away, saw the 6th and 8th accused persons inflict several machete cuts on the deceased while the other accused persons beat the deceased with stick. The deceased died on the spot. Thereafter the 6th, 8th and the other accused persons carried the deceased corpse towards a direction.”
The trial judge believed the evidence of these witnesses whom he said impressed him as witnesses of truth. He rejected the denial of the appellants. On the appellants’ appeal to the Court of Appeal the issues that were canvassed related to alleged contradictions in the evidence of pw 2 and pw 4 and identification of the appellants.
The Court of Appeal resolved both issues against the appellants. That court held per Achike J.C.A. (as he then was) that “the discrepancy or mix up in this appeal (sic) as specifically addressed by the learned counsel for each of the appellants and the respondent, in so far as they are not substantial and fundamental to the issues in question before the trial court, cannot be fatal to the prosecution’s case.” In regard to the question of identity, the court below held first, that the identity of the 1st appellant was not in issue throughout the case. Nevertheless the court below considered the evidence on record relating to identification of the appellants and concluded thus:
“ln all the circumstances, having regard to the positive and unshaken evidence of pw 2 and pw4 of identification of 1st and 2nd appellant which the trial judge accepted and rightly, in my view, acted upon, I am bound to resolve the second issue in favour of the respondent.”
On this further appeal to this court the main issues canvassed though expressed in different words were much the same as were canvassed in the court below. The argument was repeated by counsel on behalf of both appellants in this court as in the court below, that there were obvious and irreconcilable conflicts and discrepancies in the prosecution witnesses’ evidence, and, by counsel on behalf of the 1st appellant, that that appellant was not properly identified as the killer or one of the killers of the deceased. It was argued that the absence of a formal identification parade left a gap in the case of the prosecution.
This appeal turns, in the final analysis, on facts. One disconcerting feature of the arguments presented before this court is in ignoring the fact that this is a further appeal and the facts are no more at large. This court was addressed, largely, as if we were trying the matter at first instance. Hence, scant and perfunctory attention was paid to the reasons given by the court below for rejecting the contention advanced by counsel for the appellants before it. The court below while acknowledging that there may have been some discrepancy in the evidence of pw 2 and pw 4 who were said to have given conflicting evidence as to the respective side of the road in which they were hiding had said:
“The question is what do I make of this discrepancy as to the resultant directions to which the deceased, PW 2 and PW 4 found themselves …. Whether they were on the same side of the road or on different sides of the road, to my mind, is not necessarily controlling. The substantiality of their positions or directions may become relevant and material to the determination of the crucial issue raised in the appeal only if it relates to the quality of their evidence with regard the fact (sic) of the murder of the deceased.”
Having thus directed itself, that court went on to say:
“Bearing in mind that the evidence discloses that the incident occurred at the earlier hours of the morning of 25/5/86 (sometime after 3. a.m.), it seems to me that the visibility of that fateful night and the positional location of pw 2 and pw 3 vis-a-vis the deceased at the time deceased was allegedly killed are undoubtedly matters of crucial importance in order to give credence or otherwise to the evidences of these two star eye witnesses.”
After considering the combined purport of the evidence of pw 2 and pw 4, the learned Justice came to a clear conclusion thus:
” …. the discrepancy or mix-up in this appeal as specifically addressed by the learned counsel for each of the appellants and the respondent in so far as they are not substantial and fundamental to the issues in question before the trial court cannot be fatal to the prosecution’s case.”
The approach adopted by counsel for the appellants on this appeal was to reiterate the argument that there were inconsistencies in the statement (Exh 1) of pw 2 and his evidence on oath and between the evidence of pw 2 and pw 4. The alleged inconsistencies were deduced from a comparison of these materials. In the statement Exhibit 1, pw 2 stated inter alia:
“As we were going home at a spot I heard a sound of gun and people stated to pursue us I was with Moses and Abel at this time while the two girl (sic) had left. As they are pursuing us we ran to the bush and hid while others ran into another direction. Later I started to hear shout from my brother Abel that he was killed by some people.”
Part of his testimony highlighted by counsel for the 1st appellant is as follows:
“As we were going we heard a gun shot from behind us. The deceased Moses and I began to run …. while we ran along the road for a while, the deceased and I diverted into the bush on the left hand side of the road and we hid behind some grass known as Shell or Awolowo grass … Shortly afterwards, the 6th accused person came to where the deceased and I were hiding. There was bright moonlight and I was able to recognise him. I saw him inflict machete cut on the deceased. He did not inflict machete cut on me. The other 5 accused persons and some not now here beat the deceased with sticks to death.”
For his part, pw 4 testified that:
“We ran for a while along the road before we decided to enter the bush. Three of us myself, the deceased and the 2nd pw ran to the right hand side of the road. In the bush I hid myself on the left while the deceased and the 2nd pw hid themselves on the right. I was about 18 feet away from the deceased and the 2nd PW. While we were hiding there in the bush some of the group of boys came to meet us in the bush. I saw from where I was hiding the 6th and 8th accused persons inflict machete cuts on the deceased while some others attacked the deceased with sticks.”
Counsel for the 2nd appellant, in addition to all these, combed the evidence, as it were with a fine comb, to rake up what he conceived to be inconsistent statements which, largely, go to minute details such as who was holding what weapon. The upshot of all this exercise is the criticism that the Court of Appeal should have held that there was no proper evaluation of the evidence.
The High Court and the Court of Appeal were concurrently of the opinion that whatever discrepancy, inconsistency or contradiction there were in the evidence of P.W.2 and P.W. 4 as to the side of the road to which the witnesses and the deceased ran were immaterial and that what was important was whether or not from the positions they were in the bush, they could recognise the appellants. The trial judge believed and accepted the evidence of the 2nd and 4th prosecution witnesses that “from where they were hiding in the bush they were able to recognise the accused persons while the assault on the deceased was taking place,”
On this appeal, nothing of substance has been argued to show that the High Court and the Court of Appeal were in error in holding that the discrepancies and contradictions pointed out were immaterial. Discrepancies or contradictions in the evidence of a witness or witnesses may be said to be material where they go to an issue of fact which must be determined before a proper verdict can be arrived at in the case or where in the circumstances in which they occurred they were such as to cast a doubt on the credibility of the witnesses or witnesses. The case of Onubogu v. The State (1974) NSCC 358 fell into the first category. In that case in which the charges against the accused person included one of unlawful wounding, contradictions in the evidence of prosecution witnesses related to the weapon allegedly used, – a spear – and in regard thereto there were contradictions as to the whereabouts of the spear on the day in question, about how and when it was used and when it got to the hands of the Police. In that case, “the whole case for the prosecution depended on whether there is cogent and credible evidence as to the existence and use of the spear either in or outside the house of the appellants at the lime of the fight.” [see page 366 of the Report]. The materiality of the contradictions in the evidence in that case being on an issue vital to the case was unmistakable.
Whether contradictions in the evidence of a witness affects the quality of the evidence of the witness is primarily for the trial court to determine having regard, no doubt, to the rest of the evidence of the witness and the fact or facts in respect of which such contradictory evidence has been given. The duty of the trial court is to determine whether there were contradictions, and if there were, to advert to them and then take them into consideration in the evaluation of the credit of the witnesses.
In this case, there was nothing material in the location of the witnesses at the material time. What was material was whether they had an opportunity of seeing what was going on. Whether one was on the right side of the road while another on the left does not by itself raise an inference of absence of such opportunity. It was for the defence to have sought to cast doubt on the assertion-that they saw what was going on by suggesting that such opportunity depended on which side of the road a particular witness was. No such suggestion was made. The evidence which the trial judge believed clearly showed that whatever the location of the witnesses they had an opportunity of seeing the incident they testified to.
In regard to the credibility of the witnesses, the trial court was entitled to consider the evidence of the witnesses against the background of the rest of the evidence of the case. The trial judge believed the two witnesses. As regards the 1st appellant, he also referred to the statement of that appellant, Exhibit “8” wherein the appellant had admitted his presence when the alleged ‘thief’, the deceased, was being “cut” with “cutlass”. Rightly, he held that: “Exhibit ‘8’ went a long way to support the case of the prosecution except that he denied inflicting machete cuts on the deceased.” It is trite law that when a statement made by an accused contains both admissions and denials, the prosecution is entitled to use the admissions as well.
Where, in a criminal case, a finding of fact is supported by evidence believed by the trial judge, an appellate court will be loath to interfere with such finding unless it is evidently perverse. Where such finding is a concurrent finding of fact or the trial judge and the court of first appeal, a court of second appeal, such as this court, will only interfere in very exceptional circumstances when not to do so will perpetrate miscarriage of justice. In the present case, the crucial finding of fact made by the trial judge and confirmed by the Court of Appeal that the 2nd and 4th prosecution witnesses, from where they were hiding in the bush, were able to recognise the appellants while the assault on the deceased was taking place is amply supported by the evidence which he believed. Counsel for the appellant who strenuously implied by their submission that the two witnesses should not have been believed have chosen to be silent on the vital evidence, believed by the trial judge, that it was the two witnesses who had at the earliest opportunity as soon as they escaped from the scene of crime, reported the incident to the 1st pw and who had taken the Police, led by the 6th pw, to the scene where the clothes of the deceased, stained with blood were found, and from where tracks of blood led to the bank of a river where the corpse of the deceased was found. It is evident that had the witnesses not witnessed the incident as they described, they would not have been able to lead the police to the place where the deceased was killed.
Turning to the question of identification of the appellants, the court below [per Achike J.C.A. (as he then was) said:
“Where, as in this case, the learned trial judge had before him positive and unchallenged eyewitness account of the sordid murder of the deceased attested to by pw 2 and pw 4 and by their proximity to the scene of macheting of the deceased, on a bright moon-lit early hours of the morning, and the assailants had been unequivocally identified to the satisfaction of the court, he is entitled to believe the witnesses and act on their evidence. See Azeez v. The State (1986) 2 NWLR (Pt.23) 541.” The question whether appellant was properly identified or not is a question of fact to be considered by the trial court; Orimoloye v. The State (1984) NSCC 654, 657 (per Karibi-Whyte, J.S.C). It is trite law, now, that it is not in every case that an identification parade becomes necessary: See Adeyemi & Ors. v. The Stare (1991) 1 NWLR (Pt. 170) 679.
The present case, rather than be a case of “mistaken identity” was one of recognition of persons already known to the witnesses prior to the incident. The 1st appellant who by his statement Exhibit 8 admitted his presence but only denied the part he was alleged to have played in the course of the commission of the crime, could hardly successfully complain of mistaken identity. The 2nd appellant’s case on this appeal is not focused on the question of identity but on a general unreliability of the witnesses. The position is not such as to justify any interference by this court with the concurrent findings of the two courts below on the fact that the appellants were recognised by the 2nd and 4th prosecution witnesses as active participants in the crime.
One aspect of the case which has been perfunctorily mentioned in the 1st appellant’s brief but need some attention is the nature of injury suffered by the deceased as found on an autopsy carried out on the corpse. In arguing that the prosecution had not proved its case beyond reasonable doubt, it was pointed out, as the fact was, that “the autopsy reveals that the body which the doctor examined had a gun-shot wound on the forehead but the so-called eye-witnesses (PW 2 and PW 4) did not confirm that there was any bullet wound on the deceased.” Where it is suggested that a piece of evidence cast some doubt on the prosecutions’ case, it is helpful to show, unless such is evident, what aspect of the case becomes doubtful by reason of the evidence. In the present case it is plainly illogical to say that the mere fact that the doctor found bullet wounds on the deceased cast doubt on the evidence of the second and fourth prosecution witnesses when there was no evidence that the bullet wound was inflicted prior to the time the appellants and others had carried the body of the deceased away after the incident witnessed by the witnesses.
What needs be dealt with briefly, though not made an issue by the appellants, is whether in view of the evidence of the doctor (PW 5) as to the cause of death, it could be said that the appellant caused or participated in the killing of the deceased. The medical officer (PW 5) described the injuries he found on the corpse of the deceased as consisting of laceration caused by “sharp instrument such as a cutlass” on the head, back of the root of the head and across the neck shattering the skull bone with brain matter visible and “pillet (sic) wounds” on the jaw. He certified that the cause of death was, in his opinion, “heamorrhage shock due to acute blood loss from multiple injuries,” Cross-examined, he said: “Both the gun short (sic) wounds and laceration from cutlass killed the deceased.”
The evidence accepted by the trial judge was that the appellants were among a group of armed persons who, in execution of a threat to attack the deceased, had laid ambush for the deceased, the 2nd pw and the 4th pw and assaulted the deceased, with the two appellants inflicting machete cuts on the deceased. After the attack the 1st appellant was one of those who carried the deceased from the scene of the crime. There was no evidence on record that the gun shot wound found on the deceased was inflicted before the body was carried away. Be that as it may, it is sufficient for the purpose of the appellants’ conviction that the injuries they directly inflicted on the deceased was an operative cause of his death. Besides, the evidence accepted by the trial judge was clear, that the appellant had embarked on a joint enterprise with the other attackers armed with all sorts of dangerous weapons including guns, the objective of which was to attack the deceased and those that were with him. The facts of the present case have broad similarity with the facts in Muonwem v. The Queen (1963) J SCNLR 172; (1963) 3 NSCC where as found by the Federal Supreme Court (at page 74):
“In the present case we consider that the orders of five (attackers) to one (victim), the use of baton, and the signs of severe beating about the head, chest and knees of the deceased, coupled with the throwing of his body into the river as soon as he appeared to be dead, all indicate an assault of such violence as to justify the judge in holding that there was a common intention at least to do grievous harm and that the killing of the deceased in circumstances amounting to murder was a proven consequence of the prosecution of that intention. ”
As have been said, counsel for the appellants have not made any issue of the gun-shot wound found on the deceased other than, as earlier noted, the untenable submission that it should have cast some doubt on the prosecution’s case. This aspect of the evidence adduced in the case has been adverted to, merely to support what understand to be the implied position of counsel for the appellants that not much issue could be made of that piece of evidence in relation to the appellants’ responsibility for causing the death of the deceased.
Notwithstanding the commendable industry of counsel for the appellants in searching the records for contradictions and discrepancies in the evidence of the two eye-witnesses to the incident, at the end of the day, nothing has been usefully urged to justify an interference by this Court with the concurrent findings of fact by trial court and the Court of Appeal on the material issue. Equally commendable are the efforts of counsel for the respondent who in the respondents’ brief of argument has ably demonstrated that the conclusions reached by the Court of Appeal cannot be faulted. I feel no hesitation in agreeing with him. I find no substance in these appeals. I would dismiss the appeals of the appellants accordingly.
SC.160/1998
