Emeka Mbachu V. The State (2018)

LAWGLOBAL HUB Lead Judgment Report

IBRAHIM TANKO MUHAMMAD, J.S.C. 

The appellant herein, who was the accused at the trial High Court (Rivers State High Court) was the driver of a bus with Registration No. RV 1863 PC. At about 6:45pm along the Port-Harcourt – Aba expressway, by a place known as Artillary Junction, he was stopped by the members of the Road Marshall, known as Special Marshall, on the alleged offence of driving with only one headlight. The deceased a member of the Road Marshall, was assigned to book him for the alleged infraction. While the deceased was in front of the bus to examine the headlight, the appellant, allegedly drove over him, crushed him and drove away. The deceased was taken to a private clinic where he died shortly thereafter. After taking and evaluating the evidence from the parties, the learned trial judge found the appellant guilty of the offence as charged, convicted and sentenced him to death.

On appeal to the Court of Appeal, Port-Harcourt Division (Court below), the Court dismissed the appeal and affirmed the trial Court’s decision.

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Dissatisfied further, the appellant appealed to this Court on two grounds of appeal.

After settling briefs of argument in the Court, the parties made their written submissions in their said respective briefs. In his brief of argument, learned counsel for the appellant formulated the following issues for the determination of the appeal:-

1. “Whether having regard to the divergent evidence produced by the prosecution on the immediate facts of this case, the Court of Appeal was right in affirming the judgment of the trial Court that charge of murder was proved against the appellant beyond reasonable doubt as required by law.
2. Having regard to the facts established before the learned trial judge, was the Court of Appeal correct in law, in refusing to invoke the provisions of Section 179(2) of the Criminal Procedure Law of Eastern Nigeria.”

Learned counsel for the respondent adopted same issues for the determination of the appeal:-

1. “Whether having regard to the divergent evidence produced by the prosecution on the immediate facts of this case, the Court of Appeal was right in affirming the

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judgment of the trial Court that (the) charge of murder was proved against the appellant beyond reasonable doubt as required by law

2. Whether having regard to the facts established before the learned trial judge, was the Court of Appeal correct in law, in refusing to invoke the provisions of Section 179(2) of the Criminal Procedure Law of Eastern Nigeria.”

My Lords, the allegation in the first issue or issue (1) from both sides is on proof of the offence of murder against the appellant beyond reasonable doubt as required by law. So many literature abounds from time immemorial on the definition of the legal jargon “Proof beyond reasonable doubt.” It has now become certain that proof beyond reasonable doubt is not proof beyond “all shadow of doubt.” See: Woolmington v. DPP (1935) A-C 462; Oteki v. A-G Bendel State (1986) 6 NWLR (Pt. 24) 648. In our adversarial legal system, it is the duty of the prosecution in a criminal trial such as this, to prove beyond reasonable doubt, the guilt of a person accused or charged with a criminal offence. It is proof beyond reasonable doubt where the prosecution has adduced sufficient, credible and

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admissible evidence to establish the ingredients of the offence charged. It has never been the duty of the person charged with an offence to prove his innocence. See: Mbenu v. The State (1988) 3 NWLR (Pt. 84); Woolmington v. DPP (1935) AC 462.

Learned counsel for the appellant submitted that the contradiction in the testimonies of Pw1 and Pw2, which the Court of Appeal acknowledged, is a material one that creates doubt as to the intention (mens rea) of the appellant to kill the deceased. He argued that it will be unsafe, in such a situation to convict the appellant for the offence of murder. Learned counsel urged this Court to hold that the charge of murder against the appellant was not proved.

In his submission on issue 1, learned counsel for the respondent stated that the substance of the appellant’s perceived “contradictions” consists in the mere fact that where as the Pw1 testified that the appellant did not come down from the vehicle at the scene of crime. It was the shout of the deceased that attracted his attention. Pw2, on the other hand, testified that the appellant came out of his bus in anger.

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Pw2 went on to say that the appellant was observed driving his bus with one headlight on the day in question and under cross-examination, Pw2 insisted that the appellant came down out of his bus. The point in dispute is whether the appellant came down from his vehicle at the time of the accident. Learned counsel for the respondent submitted that the lower Court on the issue of contradiction came to unassailable conclusion which re-affirms the age-long principle of law that for a contradiction to be regarded material, it must to go the root of the charge before the Court, though there is bound to be minor discrepancies in evidence. Learned counsel relied on the case of Agbor v. State (2006) 6 NWLR (Pt. 997) 545 at p.564. The respondent, he said, duly discharged its duty of proving the guilt of the appellant beyond reasonable doubt with respect to murder of the deceased. Learned counsel for the respondent urged this Court to resolve this issue in favour of the respondent.

I think, from the outset, one would need to know what is the point of, or what are the points/areas of contradiction, difference or disagreement between the evidence of Pw1 and Pw2

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According to the learned counsel for the appellant, the major difference is the key to this appeal:

“That difference is whether the alleged threat by the appellant, before the fatal driving took place, or not. Put differently, it is humbly submitted that if the unfortunate death of the deceased happened in the particular circumstances, as described by the Pw2, then of course, the judgment of the learned trial judge, based largely on that testimony will be difficult to fault.

However, if it happened, in the way and manner described by the Pw1, it is humbly submitted, that a conviction for murder, will be difficult to sustain. It is submitted that the account of the Pw1 will in law, be a valid basis for conviction for manslaughter.”

Learned counsel for the respondent contended that the substance of the appellant’s perceived “contradictions” consist in the mere fact that whereas the Pw1 testified that the appellant did not come down from the vehicle at the scene of crime, the Pw2, on the other hand, testified that the appellant come out of his bus in anger.

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At the trial Court, the issue of contradiction was resolved by that Court in the following manner:

“The third leg of the submission of learned counsel for the accused person was based on contradiction of the evidence of Pw1 and Pw2 as to whether or not the accused person came out or did not come out of his vehicle on the one hand and contradiction in the evidence of Pw1, Pw2 and Pw3 as regards venue of death of the deceased. As to contradictions alleged in so far as the venue of death of the deceased as concerned, it is clear that it was at Sophia Clinic and I have dealt copiously with that in my findings on the first leg of the submission of the learned counsel to the accused person and I do not intend to repeat myself except to say that there was no contradiction.”

With regard to whether or not the appellant came out from his vehicle, the learned trial judge, after evaluating the evidence before him found and held as follows:

“That there is no material contradiction in that the two witnesses gave evidence of which each knew and saw at the respective positions each was but what was common to them was that the accused person moved his bus ran over the deceased, dragged him on the road some 100 meters as a result of which the deceased died at Sophia Clinic…

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I have given extensive consideration to alleged contradictions in the evidence of the prosecution witnesses and come to the conclusion that they were totally irrelevant to the main issue before me, i.e. whether the accused intentionally ran over the deceased with his bus on the day of the incident and whether the act of the accused caused the death of the deceased Azubike.”

In affirming the decision of the trial Court on the matter of contradiction in the evidence of Pws 1 and 2, the Court below held, inter alia, as follows:

“Inspite of the heavy whether made of the Pw1 and Pw2 in the details of what each of them heard or saw at the material time, I have not been able to see any material contradiction between the two witnesses. The Pw2 was not discredited on the damaging evidence of mens rea given by him (Pw2) against the appellant. The much flaunted and discrepancy is all about the actus reus. Even on this, the most important fact which is; Whether the vehicle operated by the appellant hit and dragged the deceased on the road for some distance, there was no contradiction between Pw1 and Pw2.

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Exhibits A and B tendered corroborate this fact. The appellant at P. 23 of the record also confirm(ed) that his vehicle fender in front near the headlight knocked down the person.

It is not every trifling inconsistency in the evidence of the prosecution witness that is fatal to the prosecution’s case… it is only such contradictions and/or inconsistencies which are substantial and fundamental to the main issue before the Court, such as would create reasonable doubt in the mind of the trial Court that are fatal to the prosecution’s case. The learned trial judge held at page 50 of the Record, and I agree that what the appellant calls contradictions in the prosecution’s case are totally irrelevant to the main issue: whether the appellant intentionally caused the death of the deceased by running over the deceased with his bus on the day in question.”

Learned counsel for the appellant submitted that a major difference exists between the evidence of Pw1 and Pw2 account on what actually happened. He submitted that the major difference will make a difference in the ultimate outcome of the appeal by changing the charge against the appellant from murder to a lesser offence.

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That major difference, he said, is key to this appeal. The major difference learned counsel cited in his briefs of argument are (i) whether the alleged threat by the appellant, before the fatal driving, took place or not. Learned counsel put it differently that: if the unfortunate death of the deceased happened in the particular circumstance as described by Pw2, then of course, the judgment of the learned trial judge based largely on that testimony will be difficulty to fault (p.8 of appellant’s brief of argument). However, if it (death) happened in the way and manner described by Pw1, a conviction for murder will be difficult to sustain and the account of Pw1 will in law, be a valid basis for a conviction of manslaughter. (p.8 of appellant’s brief). Learned counsel submitted that where there is any doubt as to the guilt of an accused person arising from the contradictions in the evidence adduced by the prosecution on material issues, such a doubt must be resolved in favour of the accused person. He cited the case of State v. Emine (1992) paragraph B.7 NWLR (Pt. 256) SC 658 at page 674

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Thus, it is clear that there is a concurrent finding of fact on the issue of contradiction in the evidence of Pw1 and Pw2. It is the practice of this Court not to tamper with concurrent findings of the two Courts below except where such a decision manifestly harbours some miscarriage of justice. See: Olaiya v. State (2010) 3 NWLR (Pt. 1181) 423 at 438; Attah v. State (2010) 10 NWLR (Pt. 1201) 190 at p. 226 and Archibong v. The State (2006) 14 NWLR (Pt. 1000) 349.

The point needs be re-stated that it is not every trifling inconsistency in the evidence of the prosecution witnesses that is fatal to the prosecution’s case. It is only such contradictions and or inconsistencies which are substantial and fundamental to the main issue before the Court such as would create reasonable doubt in the mind of the trial Court that are fatal to the prosecution’s case. In this case, the issue of the appellant coming down from his vehicle or not after the offence had been committed, has, in my view, very little or no relevance. The fact that the deceased was knocked down by the vehicle driven by the appellant is no more in doubt as confessed also by the appellant himself (pages 23 of the Record of Appeal).

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For a contradiction to be regarded material, it must go to the root of the charge before the Court. It must be one that touches an important element of what the prosecution needs to prove in the case. In a criminal case such as this, all that the law requires from the prosecution is for it to establish:

i. That death of the deceased has occurred.

ii. That it was the act or omission of the accused which caused the death and;

iii. That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.

See: Ogba v. State (1992) 2 NWLR (Pt. 222) 164 at 198; Aiguoreghian v. State (2004) 3 NWLR (Pt. 860) 367 at 422 – 423; Edoho v. State (2010) 14 NWLR (Pt. 1214) 651 at 678 – 679.

The Court below, has thus, in my view, conducted all that was required of it by affirming the trial Court’s decision.

The second issue (issue No. 2) is on the Court below’s refusal to invoke the provision of Section 179 (2) of the Criminal Procedure Law of the Eastern Nigeria. That Section made provisions for the reduction of offence of murder to manslaughter if certain conditions are fulfilled.

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Learned counsel for the appellant submitted that although at the trial Court and the Court of Appeal, the issue of conviction for a lesser offence was never addressed. However, because of the facts of this case, the offence ought to be considered as an alternative to the offence of murder. This, learned counsel submitted, is because the appellant’s conduct would appear to have evidenced a reckless or gross negligence towards the deceased. He cited in support Section 317 of the Criminal Code and case of House of Lords in R. V. Adomako (1995) 1 AC 171.

Learned counsel submits further that the test applicable in the case is the Ordinary principles of the law of negligence so as to determine whether the accused was in breach of duty of care towards the victim.

The appellant owed the deceased a duty of care which was breached by the appellant. Such a breach, it is further argued, is a far cry from the offence of murder as found and affirmed by the two Courts below. Learned counsel argued further that both the trial Court and Court of Appeal ought to have invoked the provisions of Section 179 (2) of the Criminal Procedure Law and Section 15 of the Court of

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Appeal Act, respectively. Learned counsel finally argued that both the trial Court and the Court of Appeal were in serious error of law to have refused to reduce the offence charged in accordance with the provisions of the Criminal Procedure Law. He urged this Court to avail the appellant the benefit of Section 179 (2) of the Criminal Procedure Law. Learned counsel urges this Court to allow the appeal and set aside the conviction of the appellant.

Learned counsel for the respondent, after setting out the provision of Section 179 (2) of the Criminal Procedure Law, concedes that by virtue of the statutory provision (i.e. Section 179 (2) of the aforesaid law), a trial Court and the appellate Court can, in an appropriate case, reduce the charge of murder to the lesser offence of manslaughter, and impose the appropriate sentence for the lesser offence. He argued further that the provision is tenable only where the available evidence does not support the offence charged, but is sufficient to sustain a conviction for a lesser offence even though the accused was not specifically charged with the lesser offence.

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He cited in support of his submission the cases of Nwachukwu v. State (1986) 2 NWLR (Pt. 25) 765 at 777 – 778; Odeh v. FRN (2008) 13 NWLR (Pt. 1103) 1 at 23. Learned counsel submits that in the instant case, there is an overwhelming evidence beyond reasonable doubt as to the culpability of the accused person in the offence charged, and there are no extenuating circumstances to reduce the charge to a lesser offence. It will be inappropriate to rely on the statutory provision of Section 179 (2) of the aforesaid law to convict and sentence the accused upon a lesser charge. He cited the case of Ejeka v. State (2003) 7 NWLR (Pt. 819) 408 at 423. He urged this Court to resolve this issue in the affirmative by holding that the Court of Appeal was right in refusing to invoke the provisions of Section 179 (2) of the Criminal Procedure Law to reduce the proven offence of murder with which the appellant was charged to the lesser offence of manslaughter, with the corresponding reduction in the sentence. Learned counsel finally urged this Court not to interfere with the concurrent judgment of both the trial Court and the Court below.

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Be it noted my Lords, from the outset, that the provision for reduction of an offence and sentence have been provided in the Criminal Procedure Laws of the defunct Eastern Nigeria, i.e. Section 179(2) of the said law under which the procedures in respect of this appeal were conducted. It made a provision for the reduction of offence of murder to manslaughter, where certain conditions are fulfilled. The purport of Section 179 (2) of the said Criminal Procedure Law is that when a person is charged with an offence and facts are proved which reduce it to a lesser offence, the accused may be convicted of a lesser offence although he was not charged with it. For instance, in a murder case such as the one on hand, a trial Court and indeed even the appeal Court can, in an appropriate case, reduce the charge of murder to the lesser offence of manslaughter, and impose the appropriate sentence for the lesser offence. The provision is however tenable only where the evidence available before the trial Court does not support the offence charged but is sufficient to sustain a conviction for a lesser offence even though the accused was not specifically charged with the lesser offence. See: Nwachukwu v. State (supra) Odeh v. FRN (2008) 13 NWLR (Pt. 1103) 1 at 23.

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The finding of the learned trial judge on the evidence placed before him reads as follows:

“I hold therefore that the prosecution has proved its case of murder against the accused person beyond all reasonable doubt and has discharged the onus placed on it according to law…. I have come to the irresistible conclusion that the charge of murder has been proved beyond reasonable doubt against the accused person, Emeka Mbachu as laid in the information and he is accordingly found guilty of the charge.”

Amplifying on the issue of proof, the Court below remarked:

“Once it is demonstrably evident that the guilt of the accused has been established, and the truth of the matter has been brought out or ascertained from the disputed facts from the evidence produced by the prosecution the burden of proof beyond reasonable doubt is thus discharged.”

In Oteki v. A-G Bendel State (1986) 2 NWLR (Pt. 24) 648, Oputa, JSC, put the matter of proof succinctly as follows:

“In other words, when a Court is satisfied that the charge has been proved, then that case has been proved beyond

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reasonable doubt. Now the question arises how is the charge proved The answer is simple: by calling evidence. The sole object and end of evidence is therefore to ascertain the truth of a disputed fact or several disputed facts, or in ordinary legal phraseology to resolve the points in issue. Proof is logically sufficient reason for assenting to the truth of a proposition advanced. In juridical sense, proof will include and comprehend everything that may be adduced at the trial, within legal rules, for the purpose of producing conviction in the mind of the judge or jury. The witness who is believed will carry more conviction than ten witnesses who are disbelieved or whose testimonies do not induce belief. Although belief is subjective, yet still the judge before believing will subject the evidence to the objective test of probability, where the facts deposed to by the witness look probable when considered in relation to all the surrounding circumstances of the case, they induce belief Probability is always a safe guide to the sanctuary where truth resides.”

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Thus, as it has been found by the trial Court and affirmed by the Court below that there was an overwhelming evidence beyond reasonable doubt as to the culpability of the appellant in the offence with which he was charged, tried, convicted and sentenced, and there appear no extenuating circumstances to reduce the charge or sentence to a lesser offence or sentence, it will be inappropriate to rely on the provision of Section 179 (2) of the aforestated law to convict and sentence the appellant upon a lesser charge. Ejeka v. State (2003) 7 NWLR (Pt. 819) 408 at p. 423.

It was thus, not open for the Court below, not even for this Court to allow its reasoning and holding to go contrary to the known norms of adjudication i.e. reliance on validly admitted evidence, adequate enough to fetch conviction and the relevant law(s), in arriving at its decision in a matter.

For these reasons, I find it difficult to disagree with the concurrent findings and decisions of the two Courts below which I affirm. The appeal lacks merit and it is hereby dismissed

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SC.471/2013