Eluji Kingsley Eze V. The State (2018)

LAWGLOBAL HUB Lead Judgment Report

OLABODE RHODES-VIVOUR, J.S.C.

This is an appeal from the Judgment of the Court of Appeal (Owerri Division) delivered on 20 March 2013, which affirmed the death sentence of an Oguta High Court (Imo State) on the appellant for Murder.

The one count charge against the appellant reads:

STATEMENT OF OFFENCE

MURDER, contrary to Section 319 (1) of the Criminal Code Cap 30, Vol.ii Laws of Eastern Nigeria 1963, applicable in Imo State of Nigeria

PARTICULARS OF OFFENCE

ELUJI KINGSLEY EZE on the 7th day of March, 2005 at Umuobi Assa Ohaji in the Oguta Judicial Division murder one Silas Orji.

The appellant/ accused person pleaded not guilty to the charge.

The respondent called four witnesses in proof of the charge of Murder. Statements of the appellant made on 8 March 2005, 10 March 2005 and the medical report on the cause of death of the deceased were admitted as exhibits.

The appellant gave evidence in his defence and also called his daughter as defence witness No.2. The learned trial judge eventually delivered a considered judgment on 26 July 2010 wherein he found the

1

appellant guilty of murder and sentenced him to death.

Dissatisfied with the judgment the appellant filed an appeal. It was heard by the Court of Appeal, Owerri Division. Affirming the judgment of the High Court the Court of Appeal concluded in these words:

In the light of all I have stated above, it remains for me to say that this appeal lacks any scintilla of merit and is hereby dismissed. I uphold the judgment of the High Court of Imo State Holden at Oguta presided over by Hon. Justice P.C. Ikpeama which judgment was delivered on 26 July 2010 in which the appellant as sentenced to death by hanging. Appeal is accordingly dismissed.

This appeal is against that judgment.

Briefs of argument were filed and exchanged by counsel. Appellant’s brief was filed on 19 July 2013, while the Respondent’s brief was filed on 27 August 2013.

Learned counsel for the appellant formulated a sole issue for determination. It reads:

1. Whether the prosecution proved the guilt of the appellant beyond reasonable doubt.

Learned counsel for the Respondent formulated three issues for determination. They are:

1. Whether prosecution

2

proved that the appellant committed the offence of murder as charged and found by the two Courts below.

2. Whether there are material contradictions in the evidence of the prosecution witnesses.
3. Whether the learned Justice of the Appeal Court were right by declining to interfere with the findings of the trial Court on the grounds that they properly evaluated evidence before it.

I have examined the issues for determination formulated by both sides. It is clear that learned counsel for the prosecution’s sole issue covers the three issues formulated by the respondent, to wit.

(a) Whether the appellant committed murder.

(b) Whether there are material contradictions in the evidence of the prosecution’s witnesses.

(c) Whether there was proper evaluation of evidence.

Section 135 (1) of the Evidence Act states that the standard of proof where the commission of a crime is in issue is proof beyond reasonable doubt. If any of the issues formulated by the respondent are answered in the negative the conviction of the appellant would be faulty, in that the prosecution did not prove the guilt of the appellant beyond reasonable

3

doubt. In the light of the above the appellant’s sole issue which covers all the respondent’s issues shall be considered in determining this appeal.

At the hearing of the appeal on 16 November 2017 learned counsel for the appellant, L. M. Alozie Esq., adopted the appellant’s brief filed on 19 July 2013 and urged the Court to allow the appeal.

Learned counsel for the respondent adopted the respondent’s brief filed on 27 August, 2013 and urged the Court to dismiss the appeal and affirm the concurrent decisions of the Courts below.

At about 7.30p.m on 7 March, 2005 at Umuobi, Assa in Oguta Judicial Division, Imo State PW1 and PW2 were cooking their dinner in their home when the appellant appeared brandishing a matchet, and calling Florence, Florence, (PW1, the wife of the deceased). PW1 asked the appellant what was the matter. The appellant told her that if he did not kill her husband, he would kill her. PW1 pleaded with the appellant not to kill her and her husband. The appellant was unyielding. He gave her a cut on her arm with the matchet.

PW2 (PW1’s daughter) asked the appellant why he struck her mother with the matchet. His reply was to

4

strike her with the matchet on her left shoulder.

PW1 and PW2 started crying and raising alarm. The deceased appeared on the scene asking his wife and daughter why they were crying. The appellant heard the deceased, ran to him and struck him with the matches on his left arm almost severing the arm. He also struck him on the stomach. The appellant ran away, while the deceased was taken to the hospital by people attracted to the scene by the pandemonium.

Unfortunately he died before arriving at the hospital.

This are the facts as told by the prosecution witnesses (i.e. PW1 and PW2, eye witnesses) as to how the deceased died.

The defence of the appellant was completely different.

According to the appellant he sent his two daughters to Mr. Mebere at Ohaji to grind cassava. They returned home very late. On why they came home late they told him that the children of PW1 fought them. While scolding his daughters for returning late, the deceased came with his two sons and two daughters, and PW1 to ask if he was present when his children fought with those of the deceased. At this point, Marcellinus Orji pushed him down from his seat. He fell.

5

While struggling to get up, a struggle ensued. Light Orji who was armed with a cutlass struck the appellant, but missed. He mistakenly struck the deceased, (his father). It was his testimony that the deceased started shouting that Light had killed him and the alarm attracted people who came to their rescue. He denied killing the deceased. His young daughter who testified as DW2 corroborated his testimony.

The learned trial judge believed the evidence led by the prosecution and disbelieved the evidence led by the appellant. The appellant was sentenced to death. The Court of Appeal affirmed the sentence.

The charge against the appellant reads:

STATEMENT OF OFFENCE

MURDER, contrary to Section 319 (1) of the Criminal Code Cap 30, vol.ii Laws of Eastern Nigeria 1963, applicable in Imo State of Nigeria

PARTICULARS OF OFFENCE

ELUJI KINGSLEY EZE on the 7th day of March, 2005 at Umuobi Assa Ohaji in the Oguta Judicial Division murder one Silas Orji.

The sole issue for determination reads:

1. Whether the prosecution proved the guilt of the appellant beyond reasonable doubt.

Learned counsel for the appellant observed that the

6

case presented by the prosecution was riddled with material contradictions and it is unsafe to convict on such evidence. He observed that PW1 stated that she was in their backyard cooking their evening meal with her daughter when the appellant came to their house with a matchet, stating that the appellant gave matchet cut to herself and her daughter outside the house but her daughter, PW2 contradicted her when she said the incident took place in the backyard. He further observed that there were contradictions when PW2 said that the accused gave the matchet cut to her father (deceased) not inside their house but in front of their house.

He observed that PW1 testified that the appellant gave her husband cuts on his left hand and the left arm nearly fell off, on the left and right sides of his stomach while in the post mortem report, the medical doctor concluded that the deceased had two cuts, contending that this is not consistent with “cuts” on his left hand and on the left and right sides of his stomach.”

Further highlighting material contradictions learned counsel observed that PW1 testified that the appellant did not leave their house after

7

giving matchet cuts to her and her daughter, that he was still in their compound waiting for her husband, and that when he heard his voice he ran after him and killed him in their compound, but PW2 testified that after inflicting matchet cuts on her and her mother the appellant was going when he observed that her father was coming back and to him. He observed that PW1 testified that the her lantern was on when the accused came to their house but PW2 testified that the light was not on. He submitted that the contradictions show that PW1 and PW2 were lying and they did not witness the incident. Reliance was placed on

Onubogu v. State (1975) 9 NSCC P.358.

Asuquo Williams v. State (1974-1975) 9 NSCC p.398.

On evaluation of evidence he submitted that the Courts below did not evaluate the evidence on record in finding the appellant guilty. Reliance was placed on Ajagbe v. Idowu (2011) 17 NWLR (Pt.1276) p.422.

In conclusion, he urged the Court to acquit and discharge the appellant since the case was not proved beyond reasonable doubt.

Learned counsel for the respondent observed that the evidence of PW1 and PW2 were unchallenged and

8

uncontroverted, contending that the appellant murdered the deceased.

Learned counsel submitted that there were no material contradictions in the evidence of PW1, PW2 and the Autopsy Report, exhibit C, and that the alleged contradictions highlighted by learned counsel for the appellant in the evidence of PW1, PW2 and exhibit C are minor variations and discrepancies. Reliance was placed on Gabriel v. State (1989) 5 NWLR (Pt.122) p.460.

On evaluation of evidence he submitted that both the trial Court and the Court of Appeal carefully evaluated the evidence before it, further submitting that the Court of Appeal was right to affirm the findings of the learned trial judge which have not been shown to be perverse. He relied on Durugo v. State (1992) 7 NWLR (Pt.255) p.525.

Concluding he observed that the prosecution has successfully and satisfactorily discharged the evidential burden placed before it. He urged the Court to affirm the judgment of the Court of Appeal.

Section 316 of the Criminal Code defines the offence of murder, while Section 319 of the Criminal Code states the punishment for murder. It is very much in order to charge for the

9

offence of murder under any of the sections.

For the prosecution to succeed in a charge of murder under Section 319 of the Criminal Code, applicable in Imo State of Nigeria the following must be proved beyond reasonable doubt.

(a) that the deceased died;

(b) that the death of the deceased was caused by the accused person.

(c) that the act or omission of the accused person which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was a probable consequence.

Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. See Osuagwu v. State (2013) 5 NWLR (Pt.1347) p.360

Section 316 of the Criminal Code states when the killing of a person amounts to murder. Once the act of the appellant that resulted in the death of the deceased is one of the under-listed circumstances, it is murder, and the act of the appellant that caused the death of the deceased would be said to have been proved

10

beyond reasonable doubt.

The death of the deceased can only be caused by the accused person if:

(a) the accused person intends to cause the death of the deceased or some other person;

(b) the accused person intends to do to the person killed or some other person some grievous harm;

(c) death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such nature as to be likely to endanger human life;

(d) the accused person intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence;

(e) death is caused by administering any stupefying or overpowering things for either of the purposes last aforesaid;

(f) death is caused by willfully stopping the breath of any person for either of such purposes;

is guilty of murder.

In (b) it is immaterial that the accused person did not intend to hurt the particular person who is killed.

In (c) it is immaterial that the

11

accused person did not intend to hurt any person.

In (d) (e) and (f) it is immaterial that the accused person did not intend to cause death or did not know that death was likely to result.

It follows that the act of the appellant which caused the death of the deceased must be either (a), (b), (c), (d), (e) or (f).

Finally it must be proved beyond reasonable doubt that the act of the appellant that caused the death of the deceased was intentional and the appellant knew that death is probable consequence of his act. When the three elements or ingredients are proved beyond reasonable doubt the accused person is guilty of murder. See

Uguru v. State (2002) 4 SC (Pt.ii) p.13

Salawu v. State (2014) 12 SC (Pt.ii) 134

Nwachukwu v. State (2002) 7 SC (Pt.i) p.124

Udor v. State (2014) 5 6 SC (Pt.ii) p.177

Madu v. State (2012) 6 SC (Pt.i) p.80

Okoro v. State (2012) 1 SC (Pt.i) p.1.

That the deceased died.”

It is not in dispute that the deceased died on 7 March 2005. The appellant agreed with this fact when he gave evidence. He said:

“I did not kill the deceased.”

Furthermore, the prosecution

12

witnesses, PW1, PW2, PW3 and PW4 gave unchallenged evidence that the deceased died on 7 March 2005 after being struck with a cutlass by the appellant.

Finally, when documentary evidence supports oral evidence, oral evidence becomes more credible.

Documentary evidence always serves as a hanger from which to assess oral testimony. See

Kimdey & Ors v. M.G. of Gongola State (1988) 2 NWLR (Pt.77) p.473.

Omoregbe v Lawani (1980) 3-4 SC P.117

Olowofoyeku v. AG. Oyo State (1990) 2 NWLR (Pt.132) p.369.

Exhibit C, the postmortem report concludes that the deceased died on 7 March 2005 from matchet cut which severed the blood vessels of the left forearm. Exhibit C thus makes oral testimony that the deceased died on 7 March 2005 more credible and I am satisfied that the deceased indeed died, and he died on 7 March 2005.

”That the death of the deceased was caused by the accused Person.

The case presented by the appellant is that if the trial Court had taken into account the contradictions in this trial and had properly evaluated the evidence it would be clear that it was not the appellant who killed the deceased.

A piece of

13

evidence contradicts another when it affirms the opposite of what that other evidence has stated, and not when there is just a minor discrepancy between them. Two pieces of evidence contradicts one another when they are themselves inconsistent.

A discrepancy may occur when a piece of evidence stops short of or contains a little more than, what the other evidence says or contains some minor differences in details. See

Gabriel v State (1989) 5 NWLR (Pt.122) p.460

Idiok v State (2006) ALL FWLR (Pt.333) p.1788

On whether there were contradictions in the testimony of the prosecution witnesses, the Court of Appeal said:

….Having perused the evidence of the prosecution witnesses, it is my view that there are no contradictions at all in their testimonies. Contradiction in the evidence of the prosecution witnesses are fatal if they are material and they are material if they are likely to create doubt in the mind of the Court. The PW1, PW2 and PW3 agree that there were matchet cuts on the deceased. In fact PW1 and PW2 actually saw when the appellant stabbed the deceased.

It would have been a different situation if PW1 and PW2

14

had said it was matchet cuts that the deceased sustained and it turns out that the deceased was shot with a gun or strangled, but that is not the case here. Also, issue as to whether PW1 saw lantern or not are immaterial to this case.

It is in the class of minor discrepancies. And in any case, the PW2 said since she was not in the room, she could not say if her mother saw lantem in the room or not.

Where two or more witnesses, in this case PW1 and PW2 testify at a criminal trial and their testimony is contradictory or and irreconcible it would be wrong for the Court to accept and believe the evidence of such witnesses. Where such is the case the trial judge must reconcile such testimonies before deciding to convict the accused.

Now, were their contradictions in the evidence of PW1 and PW2

Was there the need for the trial judge to reconcile the testimonies of PW1 and PW2

Learned counsel for the appellant made heavy weather on the issue of contradictions. He highlighted extracts from the testimony of PW1 and PW2 he understood to amount to contradictions. I reproduce some of them.

Postmortem Report concluded that there were

15

two cuts on the deceased while PW1 and PW3 said there were three cuts.

PW1 said it was dark and the lantern was on, while PW2 said that the lantern was not on.

PW1 said that the appellant gave matchet cut to herself and her daughter outside the house but in their compound, while PW2 said the incident took place in the backyard. Before a Court can be satisfied that there are contradictions in the case of the prosecution, the contradictions must be material. Where two or more witnesses, witness an event, in this case murder and after some time they are told to say what they saw. If their testimony is exactly the same, there would be very strong suspicion that the witnesses had been tutored. There are bound to be minor discrepancies and this is allowed.

There would be contradictions in the testimony of two witnesses where there is a clear departure on material facts from the testimony of one witness by the other. Variations, discrepancies are expected. Where there are none, it would be safe to conclude that the witnesses were tutored and that would not be reliable evidence.

Whether the lantern was on or off is immaterial as the identity of

16

the appellant was never in doubt. The number of cuts the deceased received is also immaterial. There would have been a contradiction if the witnesses said that the deceased died from gunshot or from drowning or something different from matchet attack. Testifying that the murder occurred in the yard of the deceased is sufficient. To my mind there is no contradiction in the testimony of PW1 and PW2, rather there are discrepancies and this is allowed. I am satisfied that the deceased died as a result of matchet cuts inflicted on him by the appellant. PW1 and PW2 witnessed the incident and they are witnesses of truth. The act of the appellant which caused the death of the deceased easily comes under Section 316 (a) or (b) or (c).

Was the act or omission of the accused person which caused the death of the deceased intentional with knowledge that death or grievous bodily harm would occur.

Where the appellant strikes the deceased with such force that the deceased’s blood vessels were severed and exposed and blood gushed out of his abdomen, the reasonable conclusion is that the act of the appellant that caused the death of the deceased was

17

intentional with the clear understanding that death or grievous bodily harm would occur. In this case grievous bodily harm occurred and this resulted in the death of the deceased. The ingredients of murder, (a) (b) and (c) alluded to earlier in this judgment are proved beyond reasonable doubt.

DEFENCE OF TIIE APPELLANT

In his defence, the appellant had told the learned trial judge that in the evening in question, he sent his two daughters to Mebere’s place to grind cassava. His daughters came home late. While he was scolding them the deceased and his two sons and wife came to his house. As he was talking with the deceased’s sons, Marcillinus pushed him off the seat and he fell down. When he got up Marcellinus got hold of him. Light Orji, a son of the deceased had a matchet and their mother had a stick. He struggled with Light, Marcellinus and the deceased. Light extricated himself from him, raised the matchet he had on him to cut him (the appellant) but cut the deceased instead.

The learned trial judge rejected this line of defence as an afterthought.

Agreeing with the trial Court, the Court of Appeal said:

…I find it

18

difficult to believe the story of the appellant..I hold a strong view that this story by the appellant was cooked up peradventure the Court may be persuaded to accept it as the true position. With all modesty, I think the Court is wiser in such matters…The evidence of the prosecution witnesses is water-tight and is cogent and credible enough to prove that the appellant gave the several matchet cuts on the deceased and also that the deceased died the same evening on their way to the hospital as a result of excessive bleeding from those wounds.

I also find it hard to believe the defence of the appellant. He said his wife and children fought with the deceased and his children when they came to his house. He appeared comfortable calling only his daughter to give evidence. Also Mebere, who would have given vital evidence was not called. Failure to call Mebere to my mind is fatal to the appellant’s defence. The evidence of PW1 and PW2 cannot be faulted. Their evidence was corroborated by Medical Report that the deceased died from serious matchet cuts on his body which resulted in too much loss of blood before he could get medical

19

attention. The findings of both Courts below on the cause of death and the person responsible is affirmed by this Court.

EVALUATION OF EVIDENCE

It is the duty of the trial judge to receive all relevant evidence. That is perception. The next duty is to weigh the evidence in the con of the surrounding circumstances of the case. That is evaluation. A finding of fact involves both perception and evaluation. See Gbileve v Addingi (2014) 1-2 SC (Pt.iii) p.1; Olonade v Sowemimo (2014) 5 SC (Pt.iii) p.97.

The facts of this case clearly show that the case is based on eyewitness testimony, PW1 and PW2 on one side. The appellant, (DW1) and DW2 on the other side. After a diligent examination of the judgment of the trial Court I am satisfied that, that Court unquestionably evaluated the evidence and justifiably appraised the facts before arriving at its decision that the facts presented by the prosecution and affirmed by the Court of Appeal are true while the facts presented by the appellant are unture.

In the end the appeal lacks merit. It is accordingly dismissed.

The judgment of the Court of Appeal is affirmed.

---

SC.326/2013