Vivian Odogwu V. The State (2009)

LawGlobal-Hub Lead Judgment Report

MOHAMMED LAWAL GARBA, J.C.A.

The appellant along with other people at large were arraigned on an information/charge before the Rivers State High Court, Port Harcourt (High Court hereinafter) for the offence of murder. A statement of the offence on the charge sheet was that the Appellant and others at large on the 31st day of July, 2001 at No. 49 Woji Road, Rumuolu, and Port-Harcourt murdered one Iyobu Nemieboka contrary to Section 319 of the Criminal Code, Laws of Eastern Nigeria, applicable to Rivers State.

Four (4) witnesses testified for the prosecution and several exhibits were admitted in the discharge of the duty to prove the alleged offence beyond reasonable doubt as required by law.

On her part, the Appellant testified in defence of the charge against her.

After taking addresses of learned counsel, the High Court in the judgment delivered on the 8th of February 2005 found the Appellant guilty of the offence charged and sentenced her to death by hanging.

Being dissatisfied and indeed aggrieved by her conviction and sentence, the Appellant in exercise of her constitutionally guaranteed right of appeal, caused a Notice of Appeal dated the 30th of March 2005 to be filed on the 6th of April, 2005 against same.

In line with the practice in this court, an Appellant’s brief dated 27th January, 2006 was filed on 2nd March, 2006 based on the said Notice of Appeal. However the Notice of Appeal was amended with the leave of court on the 5th of June, 2008 and consequently, an Amended Appellant’s brief was filed on the 10th of June, 2008. The Respondent’s brief was filed and deemed properly filed on the date the appeal came up for hearing, that is, on the 28th of October, 2008.

At the hearing, Chief Chuks Muoma, SAN, leading Chief (Mrs.) A.N. Muoma, for the Appellant adopted and relied on the Amended Appellant’s brief as his submissions in support of the appeal. In his oral highlight of the brief, the learned senior counsel drew attention of the court to the statement of people who were not called as witnesses in the case but which were said to have been relied on by the High Court to convict the Appellant. He also referred to the pieces of evidence rejected by the High Court which according to him would have created doubt about the guilt of the Appellant. Lists of additional authorities filed on the 12th of December, 2007 and 14th of October, 2008 were relied on. Particular attention was drawn to the case of OJI V. THE STATE listed as No 1 on the list filed on the 14th of October, 2008. We were finally urged to allow the appeal, set aside the conviction by the High Court and discharge and acquit the appellant.

For the Respondent, Mr. R. N. Godwins, Director of public Prosecutions (DPP), Ministry of Justice. Rivers State adopted and relied on the Respondent’s brief-settled by him as the submissions in support of the Respondent’s position in the appeal. In his oral emphasis of the brief he said the circumstantial evidence against the Appellant was direct, positive and compelling as to irresistibly point to the guilt of Appellant. Further that the Appellant has not been able to show that the evaluation of the evidence by the High Court was perverse and so urged us to dismiss the appeal and affirm the decision of the High Court.

From the seven (7) grounds of appeal contained on the amended Notice of Appeal, four (4) issues were distilled in the Amended Appellant’s brief as the ones calling for determination in the appeal. The issues which were set at paragraph 2 on page 3 of the said paragraph are:-

(a) “Whether the learned trial judge was right in relying on the evidence of the tainted witnesses to convict the appellant.

(b) Whether the hearsay evidence relied upon by the learned trial judge in convicting the appellant amounted to proof beyond reasonable doubt of the charge/offence against the appellant.

(c) Whether the conviction of the appellant was based on a proper evaluation of the evidenced at the trial.

(d) Whether the learned trial judge was right in excluding pieces of evidence which were vital to the defence thereby depriving the appellant of the benefit of the doubt which that evidence could have created in the trial or in the case of the prosecution.

At paragraph 3.2 on page 4 of the Respondents brief, a sole issue was formulated for answer in the appeal as follows: –

“WHETHER THE RESPONDENT DULY PROVED BEFORE THE TRIAL COURT THE CHARGE OF MURDER OF BARRISTER IYOBU NEMIEBOKA AGAINST THE APPELLANT BEYOND REASONABLE DOUBT AS TO SUSTAIN THE CONVICTION AND SENTENCE OF THE APPELLANT?”

Let me say that though in the determination of the sole issue raised by the learned Director of Public Prosecutions, all the four issues formulated for the appellant may have to be considered and decided, it would be more precise, comprehensive and therefore better to deal and consider the four (4) issues separately as canvassed in the Appellants brief. That’s what I intend to do in the determination of the appeal.

Issue 2 (a) whether the High Court was right in relying on evidence of tainted witnesses to convict Appellant.

The crux of the Appellant’s submissions on this issue is that PW3; father of the deceased and PW4; brother of the deceased had their personal interests to serve and so are tainted witnesses about whose evidence the High Court did not warn itself before relying on same. It was contended that the witnesses were not eye witnesses and were aggrieved by death of their beloved son and brother and so the High Court should have warned itself as to the veracity of their evidence. The case of THEOPHILUS V. THE STATE (1996) 1 SCNJ 79 @ 90 was cited as authority on the point. The evidence of PW3 at page 63, lines 4-5 of the record of appeal was set out and said to be laden with sentiment emotion and contradiction. That the evidence was partly speculative and partly exonerative of the appellant.

The evidence of PW4 was said to be hearsay and in which he could not conceal or disguise his hatred and derision for the Appellant. Contradictions said to be in the evidence of the two (2) witnesses were set out.

Definitions of what a tainted witness is were offered and the cases of R v. OMISADE & ORS (1964) 1 ALL NLR 133 OGWONZEE V. THE STATE (1998) 4 SCNJ 226, (98) 4 SC 110, (1998) 5 NWLR 521 & THEOPHILUS V. THE STATE (Supra) were relied on the requirement that the High Court should have warned itself or be on the guard as to the evidence of tainted witnesses before relying on it to convict an accused. That the High Court was wrong in convicting the Appellant on the evidence of PW3 and PW4 as tainted witnesses. We were urged to so hold and answer the issue in the negative.

For the Respondent, the submissions on the issue are to the effect that a witness can testify for the prosecution where the victim of the crime is his blood relation whether he is an eye-witness or not provided the court exercises caution in accepting such evidence by considering the truthfulness of the witness, his integrity, veracity and knowledge of the case. Further that the fact that the witness is a relation of the deceased does not make him a tainted witness. The cases of OBIDIKE V. STATE (2001) 17 NWLR (743) 601 @ 634 & OGUNBAYO V. STATE (2007) 8 NWLR (1035) 151 @ 185 were relied on the submissions while the case of MOSES V. STATE (2006) 11 NWLR (992) 458 @ 488, R. V. ENAHORO (1964) NMLR 65 & R. V. OMISADE (Supra) were cited on the definition of a tainted witness.

I would determine this issue before a consideration of the submissions of learned counsel on the other issues which I intend to treat the same way.

A good starting point in the determination of the 1st issue is to settle who in law is a tainted witness about whose evidence a trial court was required to treat with caution in ascribing probative value thereto. The definitions given in the cases cited by the learned counsel represent the general position of the law on who could properly be termed, called and treated as a tainted witness in a given case. The position is that a tainted witness is either an accomplice or a witness who has an interest to defend or a purpose to serve in a case in which he is called upon to give evidence as a witness. It has to be shown that the witness has some peculiar interest to protect or purpose to serve in the evidence he gives in a case in order to make him a tainted witness. There is no law, it should be pointed out, which prohibits relations of the victim of a crime or otherwise from testifying for the prosecution in a case against an accused person charged in the commission of such crime.

As a result, a witness cannot properly be described and treated as a tainted witness by reason only of his blood, marriage or other relationship with the victim of the crime in respect of which he testified as a witness for the prosecution. See YAHAYA V. THE STATE (2001) 10 NWLR (721) 360 @ 374-5, OLALEKAN V. THE STATE (2001) SC (PT 1) 38, (2001) 18 NWLR (746) 793) @ 815-6 & 825 in addition to the cases cited by teamed counsel.

In the present appeal, it is apparent from the argument of learned counsel for the Appellant that the attack on the testimony of PW3 and PW4 is purely based on their blood relationship with the deceased person in the case that is Iyobu Nemieboka. That relationship appears to be the only plank upon which the learned counsel relied on in submitting that the witnesses have personal interest through out the trial to serve. However it was not demonstrated that apart from being members of the same family with the deceased, the evidence given by the witnesses about the facts they testified on, was not correct or accurate or that the witness did not know about the facts on which they gave evidence. It should be noted that at this stage, we are not dealing or concerned with whether or not the evidence of the witness was direct or hearsay or the assessment of the value weight to be attached of given to such evidence. At the moment, the question of the witnesses being shown to be tainted witness is what is at stake.

I am unable to find any support from the submissions of learned counsel for the Appellant as summarised earlier, that merely because PW3 and PW4 are blood relations of the deceased, they are ipso facto, to be called and treated as tainted witnesses in the case with any interest to protect or serve in the evidence they gave. The evidence given by them did not disclose any real partiality or bias that can seriously be said to be serving or protecting any peculiar interest or purpose in the case. Of course being blood relations of the deceased, the witnesses and other family members were saddened by the death of their relation in the circumstances he died. That is quite a normal, usual and natural aspect of the human infallibility over which there is very little or no control by the human being. The feeling of sadness and loss or happiness and achievement are expressed and disclosed through emotions. There is therefore nothing unusual for a relation of a victim of a crime to show some emotions or even sentiments in the evidence he/she gives in the trial for the commission of the crime. The emotions or sentiments which are worthless in law do not on their own make a witness a tainted witness who can be said to have any peculiar interest to protect or purpose to serve in the case. In the absence of a clear demonstration of any personal or peculiar interest or purpose which PW3 and PW4 had to protect or serve in the evidence, they gave, there is no legal basis to justify their being called and treated as tainted witnesses in the case.

They are simply blood relations of the diseased (sic) who gave evidence on the facts within their knowledge which are relevant to the charge against the Appellant. In the circumstances, they are not tainted witnesses in the premises of the authorities cited on the issue earlier. However, assuming that the witnesses could, be said to be tainted witnesses and the High Court did not on the printed record of appeal warn or caution itself on their evidence, can that failure or omission on the part of the High Court be said to be fatal to the conviction of the Appellants? Put in another way; is failure or omission by a trial court to caution itself on the evidence of a tainted witness fatal to that evidence or reliance placed thereon by the courts? The answer is that each case would have to be treated on its own peculiarities, but it is only a matter of practice for the court to caution itself or to be wary of evidence of a witness who has some relationship with the victim of a crime. Where the evidence of such a witness is otherwise credible and sufficiently of probative value to the charge, the fact of his relationship to the victim or that he has other personal interest of his own to serve is by itself not sufficient to reject his evidence.

In law, causes are not lost on the basis that the witness/s is/are members of the same family, association or community. Even where the court fails or omits to caution or warn itself on evidence that is true in fact and sufficient to ground a charge, the failure or omission would not weaken the validity of such evidence or be fatal to a conviction. See OTEKI V. ATTORNEY-GENERAL, BENDEL STATE (1986) 2 NWLR (24) 648) CHIA V. THE STATE (1996) 6 NWLR (455) 46, OLALEKAN V. STATE (supra).

In the result, my answer to the issue is in the affirmative, that is, that the High Court was right to have accepted the evidence of PW3 and PW4 who are not tainted witnesses.

Issue 2 (b) whether the hearsay evidence relied upon by the learned trial judge in convicting the appellant amounted to proof beyond reasonable doubt.

The learned counsel for the Appellant had submitted that not being eye-witnesses all the prosecution witnesses; PW1-PW4 gave hearsay evidence of the alleged offence said to have been committed by the Appellant. He then cited and retied on the statements by EJINWUNMI & ACHIKE JJSC in the case of IJIOFOR V. STATE (2001) 6 NSCQRN (1) 209 @ 220, 221 and 236 were quoted on what hearsay evidence is and that it is inadmissible in law. Section 77 of the Evidence Act which provides that oral evidence must be direct in all cases was cited and the case of AGMULGWUL V. STATE (2001) 5 NWLR (706) 280 @ 290 in which it was interpreted, relied on by learned counsel. According to learned counsel, Section 77 of the Evidence Act is applicable to the evidence of PW1 in respect of exhibits B and S which were statements made by persons who were not called as witnesses at the trial. It was submitted that with or without objection, the two exhibits are inadmissible under Section 77 for being hearsay evidence. The cases of OLALEKAN V. THE STATE (supra) also reported in (2001) 12 SCNJ 94, OJIOFOR V. THE STATE (supra) and AHMED V. STATE (1999) 5 S CNJ 223 were cited on the submission. In addition, it was contended that the whole evidence of PW1 was hearsay since he was not present when the crime was committed but visited the scene six (6) days after the crime. Portions of the evidence given by PW1 were set out and it was argued that they were tales of stories told by other people and therefore hearsay. It was submitted that the evidence of the prosecution on witnesses did not go beyond speculation, suspicion and mental imagery saturated with emotion and desperation to hold someone responsible for the crime committed. That it did not amount to proof beyond reasonable doubt as required of the prosecution at all times by the law. Also that the prosecution had a duty to call all material witnesses whether or not their evidence supports or is against it in order for the court to arrive at just conclusion. According to counsel the trial of Appellant was conducted to enable her prove her innocence and that suspicion no matter how strong or grave does not amount to proof which can ground a conviction. The cases of OGBUNJO V. STATE (2005) 5 NSCQR 27 @ 29, 39, 42, ONAH V. THE STATE (1985) 3 NWLR (12) 236 @ 243-4 were relied on in support of that position. Citing Section 138 of the Evidence Act and the cases of ALABI V. THE STATE (1993) 7 NWLR (307) 511 @ 523, UCHEGBU V. THE STATE (1993) 8 NWLR (309) 89 @ 105 it was submitted that the prosecution evidence did not prove the ingredients of the offence charged beyond reasonable doubt. It was further submitted that the only eye-witness evidence given by the Appellant was not fully appraised and that it was credible, consistent and unbroken under-cross examination. That the failure to appraise the evidence occasioned a miscarriage of justice since the trial court was under a duty to consider the defence put up by the Appellant and was not at liberty to pick and choose in the appraisal of the evidence/defence. The cases of IGBASON V. STATE (2000) 2 SCNQR 1 @ 16, OGUNYE V. STATE (1999) 4 SCNJ 223, OFORLETE V. STATE (2000) 7 SCNJ 162 @ 171 were referred to as authorities for the submission. Exhibit K5 and the knives in the kitchen evidence were said not to be sufficient reason for the High Court’s failure to consider the defence of the Appellant which according to learned counsel, created doubt in the prosecution’s case that should have been resolved in favour of the Appellant on the authorities of ONUCHUKWU V. THE STATE (1988) 4 SC 49 @ 67, (98) 4 SCNJ 36, OFFORLETE v. STATE (supra). We were finally urged to answer the issue in the negative.

For the Respondent, it was submitted that the duty on the prosecution was to prove the charge beyond reasonable doubt which does not mean beyond a shadow of doubt. Reliance was placed on the cases of BAKARE V. STATE (1987) 1 NWLR (52) 579 @ 587, DIBIE V. STATE (2004) 14 NWLR (893) 257 @ 284-5, ABEKE V. STATE (2007) 9 NWLR (1040) 411 @ 429 for the position. Ingredients of the charge against the Appellants were set out by the learned Director of Public Prosecutions who said that the proof required may consist of any one of a confessional statement, direct evidence of eye witness or circumstantial evidence, relying on decided judicial authorities cited in the brief. It was conceded that the Appellant’s case was not based on direct evidence of eye-witness, but on circumstantial evidence, which was said to be very positive compelling and irresistibly pointed towards the complicity of the Appellant. According to him, the evidence consisted of the following facts: –

– The gruesome murder of the deceased, through multiple slab injuries:

– The sudden presence of the Appellant as the only and last person in the company of the deceased at the time of the deceased’s brutal death; especially after the deceased had severed relations with her, and even barred her from visiting him;

– The Appellant’s admission of the authorship of EXHIBITS K5 – K7, by which she showed clear animosity against the deceased to the point of insensitivity to his savage murder;

– The Appellant’s attempt to set ablaze the deceased’s kitchen in order to destroy the incriminating blood stained knives used in stabbing the deceased to death.”

It was argued that the evidence of PW2 along with the sudden appearance of Appellant at the scene as the only person present at the time the crime was found shows that the Appellant was the last person in company of the deceased before and at the time of his death. That the Appellant did not offer reasonable explanation as to how the deceased met his death. The cases of ACHIBONG V. THE STATE (2006) 14 NWLR (1000) 349 @ 395 and EMEKA V. STATE (2001) 14 NWLR (734) 666 @ 685 were cited.

It was also conceded that it is a fundamental rule of evidence that hearsay evidence is inadmissible. However, the evidence of PW1-PW4, who though are not eye-witnesses, was not hearsay because they testified about what they knew concerning the Appellant, the deceased, the relationship between the two and the death of the deceased. PW1 who was the investigating Police Officer (IPO) gave evidence on the outcome of investigation conducted by him of the crime committed from his personal knowledge. The other witnesses were said not to have given evidence on what some other people told them but from their personal knowledge of the relationship between the Appellant and deceased. That there is nothing hearsay about the evidence of the prosecution witnesses and we were urge to resolve the issue against the Appellant.

Now, the law is settled that any statement made to a witness by a person who is not himself called as a witness is hearsay if the statement seeks to establish the truth of what is contained therein and therefore inadmissible in evidence pursuant to Section 77 of the Evidence Act. This is because such evidence which consists of a retell of a story told by another person would not be direct oral evidence of the fact in respect of which it is given. Put simply, it would be a tale retorted. The rationale for the rejection of such story telling was beautifully stated by EJINWUNMI JSC in the case of EJIOFOR V. STATE (supra) and quoted by the learned counsel for the Appellant in the Appellant’s brief. I can’t resist reproducing it here. At page 221 of the report, the learned JSC put the rationale thus:-

“The hearsay rule is a very salutary rule indeed. It is a rule, which is grounded upon commonsense as the focus of it is to prevent a person from being accused or found guilty of an offence, which he did not commit. It is a self-evident fact; malevolent people could manufacture such evidence as they would to falsely accuse persons of offences, which they did not commit. By reason of this rule, courts are enjoined and indeed under a duty not to accept and/or convict an accused person upon testimony of witnesses who did not see, hear, or had perceived by any other sense or in any other manner, the facts given in their testimony at a criminal trial of an accused person, as in the instant case or even in a civil case. This rule except for such exception as res gestae rule and certain recognized statutory exceptions which we are not concerned with in this case, is mandatory for all courts. Should a trial court convict an accused person upon evidence adjudged to be hearsay evidence an appellate court may quash such convictions, if there is no other evidence upon which the conviction of the accused could be properly and safely convicted?”

The case is also reported in (2001) 4 SC (PT 11) @ Pt. 7-8.

From the above authority the law is made clear that a trial court cannot properly admit evidence that qualifies as hearsay evidence and use or rely on same to ground a conviction for an offence. This is because that type of evidence is by the operation of the law, Section 77 of the evidence Act, rendered inadmissible and the court cannot even without objection to the admissibility of such piece of evidence, make it admissible for the purposes of proof in the case before it. Neither the court nor the consent of parties is capable of making such evidence admissible in law. See ABADOM V. STATE (1997) 1 NWLR (479) 1 JAMES V. NIG. AIR FORCE (2000) 13 NWLR (684) 406, KABO AIR LTD. V. INCO BEV. LTD (2003) 6 NWLR (816) 323, AIYETORO COMM. TRAD. CO. LTD. V. N.A.C.B. (2003) 12 NWLR (834) 346.

Even though the provisions of section 77 or other relevant provisions of the Evidence Act do not use the term “hearsay” over the years however the courts have in the interpretation of the section and drawing from the common law rule of evidence held that where a witness in his own testimony repeats a statement, oral or written made by another person who is not called as a witness in order to prove the truth of the facts stated therein, such evidence would not be direct oral evidence as provided for under the section. Such evidence is not permitted to be given because it is a story heard and said or simply coined as ‘hearsay’ by the witness reporting it in his testimony. For a statement or piece of evidence to be hearsay, its source must be a person, other than the witness repeating it in court and the purpose for tendering it by the witness is to prove truth of the facts stated therein. In this regard, the term hearsay therefore imports a purpose and not a quality as was demonstrated by the Privy Council in the famous case of SUBRAMANIAM V. PUBLIC PROSECUTOR (1956) 1 WLR 965 when it explained thus:-

”Evidence of a statement, made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the of what is contained and admissible when it is imposed to establish by the evidence, not the truth of the statement, but the fact that it was made.”

The above position has been adopted and applied by our courts as seen in the cases cited by the learned counsel (supra) in their consideration of Section 77 of the Evidence. In addition, see OZUBE V. IGP (1965) 1 ALL NLR, 102, PHARMACISTS BD v. ADEGBESOTE (1986) 10-11 SC 97, (1986) 5 NWLR 707, AIWORO V. STATE (1987) 2 NSCC 710, ONONUJU V. STATE (1976) 5 SC 1, UTTEH V. STATE (1992) 1 NWLR (232) 252. From all the authorities, the salient reasons which appear for the rejection of hearsay evidence include the following:

(a) That the maker or originator of the statement was not under oath when he made it.

(b) That there is no opportunity for the cross examination of the maker;

(c) The likelihood of depreciation of the truth or accuracy of the facts in the process of repetition by the witness reporting it.

(d) The court would not have the opportunity to observe the demeanour of the maker as a witness since it is not a direct evidence from him.

In the present appeal Exhibits B and S; the statement of Blessing Chinda and Cecilia Genesis respectively, were recorded by PW1, the Investigating Police Officer through whom they were also tendered in evidence at the trial. The makers of these statements were not called as witnesses in the trial and no explanation whatsoever was offered or given as to why they were not invited to appear before the High Court so as to enable the Appellant have the opportunity to cross examine them on the statements.

The statements seek to and were tendered by the prosecution to establish the truth of their contents and not to merely establish the fact that they were made. The statements undoubtedly fall squarely and roundly in the province of the hearsay rule and are therefore inadmissible in law notwithstanding that no objection was raised to their admission at the time they were tendered. It was wrong or an error on the part of the High Court to have admitted the exhibits since they are inadmissible in law. For being inadmissible the exhibits do not constitute legal evidence upon which the High Court could rely on in arriving at a decision on the guilt or innocence of the Appellant.

It is the duty of this court to correct the error of the High Court by expunging such inadmissible pieces of evidence from the evidence adduced before that court in proof of the charge against the Appellant. However the PW1 gave evidence of the investigation conducted by him and tendered exhibits recovered in the course of the investigation. It cannot seriously be contended that the account of what the witness did and saw in the course of the investigation he conducted on the charge against the Appellant was a story that was told to him by another person to qualify it as hearsay. The evidence given by the witness on the investigations he personally conducted cannot by any stretch of reasonable imagination be said to be hearsay since it was from his personal knowledge and therefore solidly direct as required under Section 77 of the Evidence Act.

References by the witness to what he said was stated by PW2 and PW3 do not qualify as hearsay since the alleged makers were witnesses who testified in court about the relevant facts they knew on the charge against the Appellant. The references were made not to establish the truth of what was said by PW2 and PW3 but to just show that they were made by such witnesses. Whether or not the witnesses made the said statements to PW1 would be borne out by their respective testimonies as recorded by the High Court or as contained in their written statements in the course of the investigations by the police. In the circumstances, the references made by PW1 do not constitute evidence of a hearsay nature that is rendered inadmissible in law.

I have read the evidence given by PW2 which runs from pp 50-60 of the printed record of appeal and what it contains is a narration of what the witness Mr. Joseph Olubukola Akinboye, actually said, observed or did personally in the relationship between the deceased and the Appellant as well as on the 31st of July 2001 when he went to the scene of the crime committed and met the Appellant and deceased dead body. The entire evidence given by the witness was from his personal knowledge of the Appellant, the deceased and what he saw or observed at the scene of the deceased death which happened to be in the same premises with his residence. It is indisputable that the witness who was the deceased’s landlord knew the Appellant through the deceased and was close to both of them. He knew and observed the relationship between the Appellant and deceased.

The evidence given by the witness from his knowledge and personal observations of the deceased. Appellant as well as the scene of the crime is direct evidence and not one which was told to him by another person who was not called as witness in the case.

The evidence given by the father of the deceased; PW3 is at pp 62-4 of the printed record. The testimony by PW4; the deceased brother, runs from pp 64-74 and 84 of the record of appeal. I have observed that the learned counsel for the Appellant did not in the brief specifically challenged any portion of the evidence given by PW3 and PW4 as being hearsay but merely made a general statement that the evidence of all the prosecution witnesses; PW1-PW4 was hearsay, speculative, predicated on emotions and sentiments etc. It is not enough or sufficient for learned counsel to make a general submission urging the court to hold that the evidence of these witnesses is hearsay without specifically saying what portion or part of the evidence qualifies as hearsay within the premises of the established principles of law on hearsay. Without a demonstration by learned counsel for the Appellant that any part/s of the evidence given by the said witness fall within the defined rule of hearsay evidence there is no basis upon which the court can properly find the evidence to be hearsay. Indeed a dispassionate reading of the evidence given by the two witnesses would show that it consists of different accounts of what was done, seen or observed by them in relation to the deceased, the Appellant and at the scene of the death of the deceased. The evidence was from the respective personal knowledge of the witnesses of the fact they testified on.

The persistent attack on (PW3 and PW4) the witnesses as tainted witnesses by learned counsel in the brief does not make their evidence hearsay. Whether or not they were tainted witnesses had earlier been determined in issue 1. On the whole, I do not find the evidence given by PW3 and PW4 to be hearsay evidence.

The next point that now arises is whether after expunging Exhibits B and S for being hearsay, the evidence left before the High Court has proved the charge against the Appellant beyond reasonable doubt.

The requirement for the prosecution to prove the commission of a crime beyond reasonable doubt is a well known statutory one in the administration of criminal justice in Nigeria. It is provided for in Section 138 (1) of the Evidence Act which stipulates this: –

“138 (1) If the commission of a crime by a party to any proceeding is directly in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”

The term “Reasonable doubt” has not been defined in the definitions section 2 of the Act, but its connotation has received many definitions from judicial authorities. For instance, the very famous and erudite Denning, J (later M.R.) in the case of MILLER V. MINISTER OF PENSIONS (1947) 2 ALL E.R. 372 said that-

“It need not reach certainly, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt.”

The term is therefore of common law origin and was incorporated in our law of evidence. The above definition by Denning J, was adopted and applied by our courts in the interpretation of the requirement of proof beyond reasonable doubt as provided by Section 138 (1) above.

In the case of BAKARE V. STATE (1987) 579 @ 587, our own version of Denning, J and equally erudite and eloquent OPUTA, JSC put the requirement of proof beyond reasonable doubt thus:-

“Proof beyond reasonable doubt stems out of the competing presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including administration of criminal justice. Proof beyond reasonable doubt means what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency consistent with an equally high degree of probabilities.

See OTEKI V. A. G. BENDEL STATE, (supra) NWAMBE V. STATE (1995) 3 SCNJ 77, NWANGWA V. STATE (1997) 8 NWLR (517) 457, MUSA V. STATE (2001) 10 NWLR (722) 668, IKHAZUAGBE V. C. O. P. (2004) 9 NWLR (879) 483, UDO V. STATE (2000) ALL FWLR (337) 456 @ 467 in which the standard of proof beyond reasonable doubt was interpreted and applied in line with the above definition. It can be discerned from these cases that though certainty is an essential element of proof in criminal liability or guilt, absolute certainly is not required because it is “impossible in any human adventure including the administration of criminal justice.” That’s one reason why the requirement of standard of proof placed on the prosecution is to prove beyond reasonable doubt and not beyond all or any shadow of doubt. The standard of proof and the burden placed on the prosecution are by the endless judicial authorities on the issue, now common place.

In the determination of whether the legally admissible evidence before the High Court has met the required standard of proof beyond reasonable doubt, it is necessary to consider it along with the essential elements or ingredients that constitute the offence with which the Appellant was charged. In the discharge of the burden placed on it by the requirement of proof beyond reasonable doubt, the prosecution had to prove all and not some of the elements of the offence charged otherwise there would be failure to prove beyond reasonable doubt. OBUDO V. STATE (1991) 6 NWLR (198) 435 @ 456 NWEKE V. STATE (2001) 4 NWLR (704) 588, IGADELE V. STATE (2006) 2 SCNJ 124 @ 133-4, ODUNEYE V. STATE (2001) 2 NWLR (697) 311, MOHAMMED V. STATE (1997) 11 NWLR (528) 335, OGBA V. STATE (1992) 2 NWLR (222) 164 @ 198.

The offence with which the Appellant was charged and tried was murder punishable under Section 31 (a) of the Criminal Code as indicated at the beginning of this judgment. The essential elements or ingredients that constitute the offence are:

(1) The death of a human being;

(2) That the death of the deceased resulted from the act/s of the person accused.

(3) That the act/s of the person accused was/were intentional with the knowledge that death or grievous bodily harm was its probable consequence.

The cases of OGBA V. STATE (1992) 2 NWLR (222) 164 @ 198, UBANI V. STATE (2003) 18 NWLR (851) 224 @ 241. UDOSEN 14 STATE (2007) 4 NWLR (1023 125 @ 146 among several others are authorities for these elements of the offence. See also OMINI V. STATE (1999) 9 SC 1 @ 11, ONAH V. STATE (1985) 3 NWLR (12) 236, ACHIBONG V. STATE (2004) 1 NWLR (855) 488. In the present appeal, there is uncontrovorted and indisputable evidence on the death of a human being that is one Iyobu Nemieboka. The evidence of all the prosecution witnesses, the autopsy report admitted as Exhibit ‘C’ in evidence and the evidence of the Appellant herself both oral and in statements made to the police (Exhibits A-A9) clearly established beyond any reasonable doubt that the said Iyobu Nemieboka had died. Consequently, the 1st ingredient of the offence of murder has been proved beyond reasonable doubt by the prosecution with the evidence adduced before the High Court.

The next ingredient or element of the offence to be proved is that the death of Iyobu Nemieboka resulted from the act/s of the Appellant accused of causing the death.

In the determination of this point, the evidence placed before the High Court by the prosecution has to be considered and assessed in its entirety. In that task it is important to remember that the prosecution who owes the duty of proof has conceded that the evidence adduced by it was circumstantial evidence which has its own peculiar requirements in law.

The provisions of section 149 of the Evidence Act enable a court to accept circumstantial evidence in proof of facts in issue and in particular on proof of cause of death in criminal cases.

This has become necessary because in criminal matters, the possibility of always proving the offence charged by direct and positive testimony of eye-witnesses is rare. It is therefore permitted under the provisions of the section to infer from facts proved, the other facts necessary to the complete the elements of guilt or establish innocence. See NASIRU V. THE STATE (1999) 2 NWLR (589) 87 @ 103-5, KALU V. STATE (1993) 6 NWLR (300) 385, KIM v. STATE (1991) 2 NWLR (175) 622, UDOEBRE V. STATE (2001) 12 NWLR (728) 617.

The law is trite that circumstantial evidence is as good as and sometimes better than any other from of evidence. However in dealing with such evidence, a court is required to satisfy itself of what portion of the evidence has been proved and consider if the portions so proved have established sufficient proof. The proof must be such as leads to the guilt of the accused person and it would not be sufficient if the evidence leads to a number of possible suspects. In order to ground and sustain a conviction based on circumstantial evidence, the circumstances relied on by the prosecution must lead conclusively and indisputably to the guilt of the accused person. See DICSON EDOBOR V. STATE (1978) 1 NCAR 618, ANSHA V. STATE (1998) 2 NWLR (537) 246 @ 265, IKWUNNE V. STATE (2000) 5 NWLR (658) 550 @ 563, SHAZALI V. STATE (1988) 5 NWLR (93) 164, YONGO V. C.O.P. (1992) 8 NWLR (257) 36, AKINMOJU V. STATE (2000) 6 NWLR (662), 608, ADENIJI V. STATE (2001) 13 NWLR (730).

Having laid the above foundation, I now consider the relevant evidence adduced at the trial to show that the death of the deceased resulted from the act/s of the Appellant. Evidence of the circumstances put forward by the prosecution includes that:-

(a) Sudden appearance of the Appellant at the scene of the offence and as the only person who knew how the deceased died;

(b) That Appellant was deceased’s former fiance who was warned to stop visiting him;

(c) That the Appellant concealed blood stained knives allegedly used in the commission of the offence:

(d) That prior to the death of the deceased the Appellant had expressed in exhibits K5, K6 and K7 her deep hatred and grouse against him;

(e) That Appellant had made nine versions of different statement on the deceased’s death to the police in Exhibits A-A9.

(f) Autopsy report on cause of the death of the deceased;

(g) The forensic blood analysis report on the blood stained knives.

Was the totality of the evidence given by the prosecution such as leads compelling and disputably to the fact that it was the Appellant and the other persons at large that had caused the death of the deceased? The law is that until the prosecution discharges the onus of proof sufficiently and satisfactorily, the Appellant would not be required to offer any defence. Until the duty to prove the element of the offence beyond reasonable doubt is effectively discharged as required by law, there will be no burden on the Appellant to offer exonerating explanation to establish her innocence MOSHOOD V. STATE (2004) 14 NWLR (893) 422, AIGUOREGHIAN V. STATE (2004) 3 NWLR (860) 367, MODU V. STATE (2001) 3 NWLR (700) 230.

One vital evidence from the prosecution was that the Appellant was the last person with the deceased prior to his death and that her appearance was sudden and unexpected. The evidence of the circumstances was that the Appellant and deceased had broken up or ended their love relationship and that the Appellant was bitter about it. That she had expressed in writing through Exhibits K6 and K7, her hatred and grouse against the deceased, who she was warned to stop visiting by PW2; the landlord of the house where the deceased lived.

Another important piece of evidence by the prosecution of the circumstances of what caused the death of the deceased was that the Appellant had hid the two blood stained knives in the oven of the cooker in the kitchen. The pieces of evidence prima facie, show that the Appellant was the last person in company of the deceased before he died and that she hid the weapons used in causing the death, the knives. The Appellant was in law, the last person seen with the deceased while he was alive and is therefore presumed to bear full responsibility for his death in the absence of acceptable and cogent explanations of how he died. STATE V. NWAKERENDU (1973)3 ECSLR (2) 757, IGHO V. STATE (1978) 3 SC 87, EMEKA V. STATE (2001) 14 NWLR (734) 666, UGURU V. STATE (2002) 9 NWLR (771) 90.

What explanations were offered by the Appellant as to how and what caused the deceased death?

The evidence of the Appellant was that the deceased had picked her up from the school to his house on 30th July 2001 where she stayed until the night of the 31st July, 2001 when he was killed. That she and deceased were attacked on the fateful night by two (2) boys who wore masks and were armed with guns. That the boys hit the deceased with a bottle on the head, with the side table and with 2 knives which they took from the kitchen in the house. That she was also stabbed with a knife on the hand and “the knife cut one of my fingers that it almost fell off. It was the last finger on my left hand that almost fell off” It was also a part of the Appellant’s case that after the attack on them, she picked the knives used in killing the deceased and hid them in the oven of the gas cooker in the kitchen. Are these explanations sufficient and cogent as to bring some coexisting circumstances that would weaken the evidence adduced by the prosecution? It is not because it is not coherent consistent and cogent. To start with, in her first statement to the police, which is at page 11 of the record of appeal, she said among others:- “The two boys with masks an their faces were also armed with gun and knife in their possession.”

In her testimony in court she said inter alia that one of the boys asked he:- “Where are the knives in this house” I was so scared because he was pointing the gun at me… He entered into the kitchen and came out with knives. I don’t know how many.”

The apparent conflict here is that in the statement the boys had knife in their possession when they allegedly entered and attacked the Appellant and the deceased. Before the court, the evidence was that it was Appellant who told the boys that the knives in the house were in the kitchen from where they took them. I the boys had a knife of their own they could not have waited to ask for and find other knives in order to carry out their sudden and hurried attack on their victims.

The Appellant had in the testimony in court denied making the statement to the police that she hid the knives used in the murder of the deceased in the oven of the cooker in the kitchen because she did not want to show any involvement since they forced her into the kitchen to show the knives to them. However if she is to be believed that after the alleged boys left, “All this time I was in deep shock, I did not know what I was doing again.” (see page 94 of the printed record) then the fact that she had to pick up the knives used in the deceased’s murder from the scene to find an obscure place like the oven of a cooker in the kitchen to hide them becomes really very curious. Why for instance in her shock did she not run out with the knives in her hand when she eventually went to knock at PW2’s window for help?

In addition, as shown earlier, the Appellant had claimed that she was stabbed with a knife and that the last finger on her left hand almost fell off. Yet there was no evidence of that or any other injury she allegedly sustained in the cause of the alleged attack on any part of her body. The evidence of the prosecution on this is that no injury of the nature claimed by the Appellant was seen or observed by either PW2 one of the first people to get to the scene after the incident or PW1 who later conducted investigations thereon. The Appellant had not said in her statements to the police that one of the fingers of her left hand was almost cut off during the attack.

I am aware of the position of the law that the mere presence of an accused person at the scene of a crime is not ipso facto, evidence that he committed the offence.The evidence of the prosecution has shown more than mere presence by the Appellant as demonstrated earlier. In addition, I know that it is the law that the fact that an accused person lies in his evidence does not mean that he is guilty of an offence with which he is charged. However the evidence adduced before the High Court shows that the Appellant gave materially inconsistent evidence and refused/failed to give a full and sincere and rational account of how the deceased met his violent death as the only person who knew what happened on the night of the murder.

I have before now highlighted some of the material inconsistencies between the statement made by the Appellant to the police and her testimony before the High Court. Let it be remembered that the law is that where a witness, including an accused person, makes a statement to the police which is inconsistent with his oral testimony in court, both of them should be disregarded by the court as unreliable. See OLADEJO V. STATE (1987) 7 SCNJ 218 (87) 3 NWLR (61) 364 @ 427, STATE V. USOR (1972) NMLR 211. Even if any of the two can be said to be reliable, the uncontrverted evidence that there was no sign of any forceful entry into the house of the deceased at the time of the attack; that was around 11.30 p.m. and that the Appellant had a spare key to the house before that day, clearly, positively and irresistibly point to the fact that the Appellant and the two masked boys” gained entry into the deceased’s house together by the use of that spare key held by the Appellant. This position is strengthened by evidence of the circumstances described by the Appellant herself when she stated that at a point during the alleged attack the mask of one of the boys fell off and the deceased recognised him. With the mask off, the Appellant must have seen the face of that boy who must have realised that the Appellant had seen his face too. To have just slaughtered the deceased by cutting his throat and other parts of the body in the full glare of the Appellant and gone away without any proven harm to the Appellant the only eye-witness to the brutal and dastardly crime would be outrageously irrational, bizarre and unbelievable if the Appellant was not one of them. The only rational inference that can be drawn from the account given by the Appellant of how the deceased was killed was that Appellant was part of the plan and actions of the boys who she led to the residence of the deceased. That’s why in spite of the amount and nature of the violence used to kill the deceased, the Appellant remained unscathed, hid the knives used in the gruesome murder and thereafter had the calm and composure to write Exhibit K5 in which she prayed thus: – “God please forgive me! I always warned him to stay out of trouble instead his threats shut me up”. It may be recalled that this is the same Appellant who claimed that the last finger of her left hand was cut and almost fell off and that after the attack, she was in deep shock and did not know what she was doing again.

In this regard, I am in firm agreement with the High Court that the evidence given by the Appellant did not introduce any rational possibility that can be said and held to weaken the positive evidence of the circumstances which irresistibly point to the fact that Appellant was one of the people involved in the murder of the deceased.

From the evidence adduced by the prosecution, the circumstantial evidence adduced has not in any way been weakening by the shaky, materially inconsistent explanations and therefore incredible evidence from the Appellant. The circumstantial evidence I agree with the High Court has met all the requirements of the law and has proved that the only rational inference to be drawn therefrom is that the death of the deceased resulted from the act/s of the Appellant and the other people at large.

In the result, I find that this element of the offence with which the Appellant was charged has been proved beyond reasonable doubt and not sentimental or fanciful doubt.

The last element of the offence is that the act/s were intentional with the knowledge that death or grievous bodily harm was its probable consequence. In this regard, the evidence contained in the autopsy report is quite clear. The deceased died from cut throat and multiple lacerations/cuts all over the left hand, head, face and neck, which unarguably are very serious grievous bodily harm the usual or expected and probable consequences of which would be death. The inevitable inference therefore is that any person who inflicts such bodily harms on another person the intention and knowledge is that death would be the probable consequence of such injuries. There can be no serious dispute about this and the evidence leaves no doubt whatsoever that by the nature of the injuries inflicted on the deceased, death was the probable consequence that would result therefrom. I therefore find that evidence to be sufficient proof of this element of the offence beyond reasonable doubt.

On the whole, my decision is that prosecution’s evidence has proved the three (3) elements/ingredients of the offence of murder with which the Appellant was charged beyond reasonable doubt as required by law. Consequently, I answer the issue in the affirmative.

Issue 2 (c) “Whether the conviction of the Appellant was based on a proper evaluation of the totality of the evidence adduced at the trial.

The submission for the Appellant was that there was no such evaluation by the High Court. Most of the arguments by learned counsel for the Appellant on this issue are repetition of the submissions under issues 2 (a) and 2 (b) considered earlier on. Put briefly they are to the effect that part of the evidence was caught up by the provisions of Section 77 of the Evidence and therefore hearsay. That Exhibit M; a blood stained Binatone stabilizer was not subjected to forensic laboratory tests for DNA and finger print and that PW3 & 4 were tainted witnesses. That the circumstantial evidence was not strong and compelling to support the connection of the Appellant. According to learned counsel the High Courts evaluation of the evidence, particularly of the appellant was poor or even absent and cited the case of BASIL v. FAJEBE (2001) 6 NSQLR (1) 269 @ 281 on the law that where a trial court failed to advert to the evidence or evaluate or give necessary consequences to the evidence at the trial, the appellate court will itself do so.

Finally we were invited to answer the issue in the negative.

For the Respondent, it was submitted on the issue that the High Court properly evaluated the available evidence adduced before the finding that the offence against the Appellant was proved beyond reasonable doubt.

Excerpts from pages 174-6 were set out to show the evaluation of the evidence by the High/Court to support the submission. It was also contended that it is within the prerogative of a trial court that sees and listens to witnesses to choose which to believe and ascribe probative value to. That it is not for this court to interfere with findings based on such evaluation unless it is found to be perverse, relying on the case of BAKARE V. STATE (2007) 9 (1040) 411 @ 434. It was argued that the evaluation by the High Court has not been shown to be perverse and we were urged not to interfere with it.

The law has long been settled that it is the primary function and duty of a trial court which has the unique opportunity to see hear and observe witnesses who give evidence in a trial, to evaluate such evidence and give the necessary weight or value earned by it in the determination of the relevant issues before it. See OGOALA V. STATE (1991) 2 NWLR (175) 509, ADAMU V. STATE (1991) 4 NWLR (187) 530, DANIELS V. STATE (1991) 8 NWLR (212) 715, SOLOLA V. STATE (2005) 5 SC (1) 135, FAGBENRO V. AROBADI (2006) ALL FWLR (310) 1575.

The law is also common knowledge that where a trial court fails to properly discharge that primary duty or the evaluation value ascribed to and inference/findings made thereon cannot be supported by the evidence adduced before that court, then an appellate court is entitled to intervene and interfere with such decisions of the trial court. ADISA V. STATE (1991) 1 NWLR (168) 490, NJEMANZE V. NJEMANZE (2006) ALL FWLR (302) 101…

However where a trial court has unquestionably and properly evaluated the evidence adduced before it, an appellate court has no business to and is usually slow in interfering with decisions arising from such an exercise. See ZAGA V. AMAW (2006) ALL FWLR (293) 339, OLUFOSOYE V. OLORUNFEMI (1989) 1 NWLR (95) 26, IMAH V. OKUGBE (1998) 12 SCNJ 59.

In the present appeal, the primary complaint of the Appellant is that the High Court did not properly evaluate the eye-witness evidence/account of the Appellant and along with the evidence of the prosecution which was said to support it. I have read the judgment of the High Court which runs from pages 152-176 of the printed record of appeal. Let me point out here that the fulcrum or crux of the Appellant evidence was that the deceased was murdered by the two boys who allegedly attacked her and the deceased and that she did not know them.

The circumstances of that evidence was evaluated at page 17-3-4 of the record and rejected by the High Court for reasons fully set out thereat. Let me say that the manner or way trial courts evaluate evidence is a matter of style peculiar to the Hon. Judges who preside over them. So no hard and fast rule can be laid for that as long as the material effect of the evidence placed before the court was appraised and assessed and reasons clearly given for the weight or probative value ascribed to that evidence in support of the findings made. The High Court had discretion in the procedure for evaluation of the evidence. See SOLOLA V. STATE (supra) ONUOHA V. STATE (1985) 5 NWLR (54) 118, IGOGO V. STATE (1999) 14 NWLR (637)

I would like here to restate the law that it is not the function of this court to retry a case on the notes of the evidence recorded in the record of appeal. Its duty upon a complaint made by way of an appeal is concerned with seeing whether a trial court has or has not made some substantive procedural errors or has or has not failed to make proper findings which the evidence available before it deserves. The decision of a trial court would not be set aside merely because this court would have employed a different procedure for the evaluation of the evidence, drawn different inferences and reached different conclusion on some or even all of the facts. The important thing is that the decision of a trial court can be apparently supported by the evidence placed before it. See OROKE V. EDE (2004) NMLR 118 @ 119-20, UGO V. OBIEKWE (1989) 1 NWLR (99) 566, LAYINKA V. MAKINDE (2002) 10 NWLR (775) 358 @ 374-5.

In the present appeal, I find that the High Court has sufficiently and therefore properly evaluated the evidence adduced by the prosecution as well as the Appellant in making the finding that the offence of murder was proved beyond reasonable doubt against the Appellant. In consequence, I answer the issue in the affirmative.

The last issue in the appeal is issue 2 (d): -“Whether the High Court was right in excluding pieces of evidence which was vital to the defence. The pieces of evidence complained about are (a) a copy of the Punch newspaper of Friday, 28th September 2001 and (b) the funeral programme for the deceased. The exclusion of these items was said by learned counsel for the Appellant to have deprived the Appellant the benefit of the doubt which they could have created in the case of the prosecution. It was submitted that the basis of admissibility of any piece of evidence is relevant and not how it was or who procured it. A piece of evidence is said by counsel on the authority of R. V. KILBOURNE (1973) AC 729 @ 756, to be relevant if it is logically probative of some matter which requires proof. The cases of FASALLAH V. AREWA (1999) 7 SCNJ 202, AGBAHOMOVO V. EDUYEGBE (1999)12 SCNJ were relied on the law that unless a piece of evidence is inadmissible in law, its admissibility depends on relevance. It was also argued that there is no law which made the two items inadmissible in evidence and reiterated that they were wrongly excluded by the High Court.

Furthermore, it was submitted that the wrongful rejection of the items was substantial in that it occasioned a miscarriage of justice because the decision of the High Court would have been otherwise if they were not excluded. It was contended that Section 227 of the Evidence Act does not apply in the Appellant’s case and the cases of AKPABIO V. STATE (1994) 7-8 SCNJ (3) 420 @ 455 & AIGBADION V. STATE (2000) 2 SCNQR 1 @ 16 on the duty of the court to consider any defence put up by an accused person; stupid or spurious. We were urged to answer the issue in the negative.

The Respondent’s submissions on the issue are that the two items were rightly rejected in evidence by the High Court since the witnesses through whom they were tendered were not makers thereof. Section 199, and 209 of the Evidence Act as well as the case of EKANG V. STATE (2001) 11 NWLR (723) 1 @ 24 were cited as support for the rejection and it was argued that no miscarriage of justice was occasioned by the rejection. We were urged to resolve the issue against the Appellant.

Now, general speaking and ordinarily, admissibility of a piece of evidence; oral or documentary, in any proceedings before courts of law in Nigeria, is governed by Section 6 of the Evidence Act. Once a piece of evidence is relevant, it is admissible in evidence irrespective of how it was obtained. See SADAU V. STATE (1968) 1 ALL NLR 124 @ 125, TORTI V. UKPABI (1984) 1 SCNLR 214 (84) 1 SC, 370 FAWEHINMI V. NBA (NO.2) (1992) 2 NWLR (105) 558 @ 583, OYEDIRAN V. ALEBIOSU II (1992) 6 NWLR (249) 550 @ 559.

In particular newspapers have been held by this court to be admissible in evidence under sections 116 and 124 of the Evidence Act in the case of ONEH V. OBI (1999) 7 NWLR (611) 487 @ 499. The sections make the following provisions:-

“116. The court shall presume the genuineness of every document purporting to be the official Gazelle of Nigeria or of a state or the Gazette of any part of the Commonwealth or to be a newspaper or journal, or to be a copy of the resolutions of the National Assembly printed by the Government Printer, and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.”

124. Documents are said to be in proper custody within the meaning of sections 116 to 123 of this Act it they are in the place in which, and under the care of the person with whom, they would naturally be: but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.”

So one may ask the question why the High Court rejected the punch newspapers when it was tendered by the learned counsel for the Appellant through PW1. The answer can be gleaned from 43 of the record of appeal when in a ruling on the admissibility of the newspaper the High Court found thus:-

“I have taken judicial notice of the proof of evidence filed. The facts in the proof of evidence stated that Nemieboka Iyobu died/murdered on 31st July, 2001. The injuries he sustained were not inimical to the ones stated in the exact words of the said Black Dragon, i.e. “sliced his manhood” “removed his eyes”, dismembered his body”. Both the date of the letter 15th July, 2001, i.e. two weeks to the murder and date of delivery 21 September (about 2 months) were in conflict with the facts in the proof of evidence. The language of the letter, though described as “strict illiterate grammar” did not appear so in the said letter. Reading the article and its contents, this court can reasonably draw the inference that the author recorded information supplied to him by a person or a group of persons that lacked personal knowledge of the matter before this court coupled also with the evidence of P.W.1 that this article was not brought to his attention in the course of investigation and as it appeared he did not see the document save for seeing it in court, the Defence has failed to show the relevance of the document and this court does not see and does not consider the said newspaper relevant. I hold that the Punch Newspaper of Friday September 28, the Article captioned “Law Teacher resigns over death throat from cultists (sic) is not relevant to the matter in issue in this criminal trial and thus it is unadmissible (sic) in evidence.”

Put briefly, the High Court did not find the newspaper relevant to the charge or trial of the Appellant and so held that it was inadmissible in evidence. The reasons given for the rejection of the newspaper by the High Court in the circumstances of the case are cogent and unassailable. One reason for this position is that the information contained in the newspaper cannot practically be shown to be one that offer any kind of a defence whatsoever to the charge against the Appellant.

In my view, even the doubt suggested by the learned counsel for the Appellant that could have been created in the prosecution’s case by such newspaper was only imaginary since there were material differences in the nature of the wounds described therein and those set out in autopsy report. The date of the letter in the newspaper was also different and earlier in time than the date of the commission of the offence with which the Appellant was charged. The newspaper was clearly not relevant to the trial of the Appellant and the High Court was for that reason right to have rejected it in evidence.

In the alternative, even if the newspaper had any relevance to the facts of the case, it is too remote to be material in all the circumstances of the case presented by the evidence of the prosecution and can therefore be excluded from evidence under the proviso (a) to the Section 6 of the Evidence Act. The proviso is as follows:-

“6…

Provided that:-

(a) The court may exclude evidence of facts which though relevant or deemed to be relevant to the issue, appears to it to be too remote to be material in all the circumstances of the case.”

In further alternative the article in the newspaper even if admitted in evidence in the trial of the Appellant instead of creating any doubt in the prosecution case, it would have strengthened the case against her. This is because the charge against the Appellant was that she and other people at large, committed the murder of the deceased and if some faceless people now claimed to have killed the deceased, it would in my view when considered along with the circumstances disclosed in the evidence adduced in the case, clear any doubt that the Appellant was part of the plan and action of these faceless people.

Learned counsel had also mentioned that the exclusion of the funeral programme for the deceased was wrongful. The portion of the programme said to be material to the Appellant by learned counsel was where the deceased was said to have “stepped on the toes” of many people including Ogu-lolo, Adamac Group of Companies, University of Science and Technology, etc.”

The High Court rejected the programme because the witness through whom it was tendered under cross examination, PW4, was not the author thereof and that it was not relevant to the charge. Without the need to waste words, I am in agreement with the finding of the high Court because, the portion set out above has no relevance even in the remotest way to the charge that Appellant and some people at large killed the deceased. The statement that deceased stepped on the toes of many people did not suggest that any of those people killed him The statement itself was not ascribed to any particular person in the programme so as to enable the court to ascertain whether the maker was one who made the statement out of his own personal knowledge or from some other source PW4 in his testimony in court only said that he read the above portion in the programme at the funeral and not that he said or authored it. It cannot therefore be properly used to contradict him even if brought to his attention under Sections 199 and 209 of the evidence Act.

In the result, the High Court was right to have rejected the programme in evidence. My decision on the last issue raised by the leaned counsel for the Appellant is that the High Court was right to have rejected the punch newspaper and the funeral programme of the deceased, The rejection did not occasion any real miscarriage of justice to the Appellant since even if they were admitted the decision by the High Court would have been the same and so section 227 (2) of the Evidence Act is applicable in this appeal.

In the final result, for all the reasons set out earlier in this judgment I find no merit in this appeal and it is dismissed hereby. The conviction and sentence of the Appellant by the High Court is accordingly affirmed.

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Other Citations: (2009)LCN/3099(CA)