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Ann Amaechi V. The State (2016) LLJR-CA

Ann Amaechi V. The State (2016)

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IGNATIUS IGWE AGUBE, J.C.A.

This is an Appeal against the Judgment of the Honourable Justice Ngozi Opara then of the Mbano/Etiti Judicial Division Holden at Mbano which Judgment was delivered on Tuesday, the 8th day of November, 2005 finding the Appellant guilty of Manslaughter and sentencing her to 5 (five) years imprisonment with hard labour. However, since the Convict/Appellant had already stayed in Custody for a little more than five (5) years, she was ordered to go home having served the term of imprisonment retrospectively.

It would be recalled that the Appellant was charged along with the 1st Accused Justus Iheazu on a Count of Murder contrary to Section 319 of the Criminal Code CAP 30, Vol.2 Laws of Eastern Nigeria, 1963 as applicable to Imo State of Nigeria in that on the 13th day of April, 2000 at Ikpa Mbara Umuozu Ugiri in Isiala Mbano in the Mbano Umuozu Ugiri in Isiala Mbano in the Mbano/Etiti Judicial Division, she murdered one Margaret Nwosu. On the 21st day of February, 2001 when the charge was read to them each pleaded not guilty.

?At the trial the prosecution called five

witnesses and at the close of the Prosecution?s case, the learned Counsel for the Appellant C. T. Okeke Esq, made a No Case Submission which was Over ruled by the Learned Trial Judge. The Appellant and Co-Accused subsequently defended themselves but called no witness and at the close of their case, the Learned State Counsel and Counsel for the Accused persons exchanged their respective Written Addresses that calumniated in the Judgment of the Lower Court Per Ngozi OPARA, J; Now on Appeal discharging the 1st Accused but convicting the Appellant.

Aggrieved by that Judgment, the Appellant herein appealed to this Court by a Notice of Appeal with THREE (3) Grounds dated the 22nd day of May, 2013 and filed on the 4th day of June, 2013 following the extension of time granted her by this Honourable Court on the 30th day of May, 2013. Below are the Grounds of Appeal as Couched and reproduced with their Particulars:
?GROUNDS OF APPEAL
?GROUND ONE -ERROR-IN-LAW:
The learned trial Judge erred in law when he convicted me, the Appellant of manslaughter when the Prosecution did not

prove that my act caused injury to the deceased and that the death of the deceased was the direct result of that injury.
PARTICULARS OF ERROR:
1. The Prosecution is bound to prove the offence charged or my guilt beyond reasonable doubt.
2. The prosecution failed to prove beyond reasonable doubt that my act caused injury to the deceased and that the death of the deceased was the direct result of the injury.
3. The Court failed to consider the material contradictions in the evidence of the Prosecution.
4. The PW3 Salomilia Nwosu who claimed to be an eye witness stated in her statement to the Police ?Exhibit 10, that I hit the deceased on the head with a pestle and she fell down and became unconscious.
5. The PW3, Salomilia Nwosu, in her testimony in Court said I hit the deceased on the leg.
6. The PW5, the Medical Doctor stated that the deceased had no problem in the head. That the problem of the deceased was from the abdomen.
7. In view of the above mentioned contradictions, the Honourable Court erred in Law in convicting me of manslaughter.
8. I denied hitting the deceased with any object.
9. The

Honourable Court ought to have discharged and acquitted me the Prosecution having failed to prove my guilt beyond reasonable doubt.
?GROUND TWO -ERROR -IN-LAW:
The learned Trial Judge erred in Law when he convicted me of manslaughter when the prosecution?s case is replete with material contradictions.
PARTICULARS OF ERROR:
The prosecution is bound to prove my guilt beyond reasonable doubt.
2. There were material contradictions in the case of the prosecution which were not explained by the Prosecution.
3. The contradictions cast serious doubt in the case of the prosecution.
4. The Court ought to have resolved the contradictions in my favour but it did not.
5. The Court ought to have discharged and acquitted me.
?GROUND THREE ? ERROR-IN-LAW:
The Judgment is unwarranted, unreasonable and cannot be supported, having regard to the evidence.
?RELIEF SOUGHT:
(1) An Order of Court setting aside the Judgment of the Lower Court delivered on 8/11/2005 convicting the Appellant of manslaughter and sentencing her to 5 years imprisonment with hard labour.
(2) An Order

of Court discharging and acquitting the Appellant.?

Upon the entry of the Appeal hereto the respective learned Counsel for the parties filed and exchanged their Brief of Argument. For the Appellant, C. T. Okeke, Esq, who settled her Brief dated the 18th day of July, 2013, three Issues were nominated from the three Grounds of Appeal Couched in the following terms:
ISSUES FOR DETERMINATION:
?1. Whether the Prosecution proved that it was the act of the Appellant that caused the injury to the deceased and that the death of the deceased was the direct consequence of that injury?

2. Whether the trial Court was right to have convicted the appellant of manslaughter in view of the material contradictions in the prosecution’s case.

3. Whether the Judgment of the trial Court was not unwarranted, unreasonable and cannot be supported, having regard to the evidence?”

On the part of the State/Respondent, C. N. Akowundu, Esq, then Director Estate and Trusts, Ministry of Justice, Imo State who settled her Brief, also distilled Three (3) Issues as follows:
?(A). whether the Prosecution proved its case beyond reasonable doubt against the Appellant?
?(B). Whether there are contradictions in the evidence of the Prosecution witnesses and if the answer is in the

affirmative whether such contradictions were material?
?(C) Whether the Learned Trial Judge was right in finding the Appellant guilty of manslaughter rather than murder.”

Upon receipt of the Respondent?s Brief, the learned Counsel for the Appellant further filed the Appellant?s Reply Brief dated 24th March, 2015 same date.

ARGUMENT OF ISSUES:
ARGUMENTS OF LEARNED COUNSEL FOR THE APPELLANT ON ISSUE NUMBER ONE (1) ?WHETHER THE PROSECUTION PROVED THAT IT WAS THE ACT OF THE APPELLANT THAT CAUSED INJURY TO THE DECEASED AND THE DEATH OF THE DECEASED WAS THE DIRECT RESULT OF THAT INJURY (GROUND 1 (ONE).
The learned Counsel for the Appellant in arguing this first Issue referred to Section 138 of the Evidence Act, CAP. E, Laws of the Federation, 2004 on the burden of proof of either the Offence of murder or manslaughter beyond reasonable doubt that the act of the Appellant caused the death of the Deceased as was decided in the case

of Onah V. The State (1998) 1 ALL CLR 642. He then opined that the prosecution failed so to prove and urged this Honourable Court to consider the following contradictions in the evidence of the PW3 on Oath on 9/10/2001 at Page 29 lines 12 ? 20 of Records as against his Statement to the Police on the 19th of November, 2000 which was tendered through the PW4, Inspector Eugene Egwekwe and same was admitted and marked Exhibit 10 (Pages 34 line 184 and 35 line 184 of the Records refer). further references were made to Page 109 lines 20-30 of the Records, the answers to Cross-examination by the said PW4 at page 34 lines 166-169 of the Records. Still on contradictions he alluded further to the evidence of the PW5 (DR. Osuji) who performed the autopsy on the deceased whose testimony according to the learned Counsel for the Appellant worsened the case of the Prosecution/Page 38 lines 67-69 and the Medical Report Exhibit 11 at page 110 Lines 30-33, the answers to Cross-examination by the said Doctor at pages 37 lines 76?79 and 39 lines 79-85 of the Records were all referred to in urging us hold that the contradictions in the case of the Prosecution are

material.

He further urged us to hold that if the lower Court had considered the above contradictions which are very material, the Court would have found the Appellant guilty of manslaughter. The learned Counsel cited and relied on Ikemson V. The State (1989) 3 NWLR (Pt.110) 455 at 466, Nwachukwu V. The State. (2000) FWLR (Pt.28) 2125 at 2208, Nwode V. The State (1991) 4 NWLR (Pt.185) 341 at 343; Onubogu V. The State (1974) 1 ALL NLR 5 at 17; to submit that the contradiction in the evidence of the above mentioned witnesses for the Prosecution were not explained away and as such, the lower Court would have resolved them in favour of the Appellant and discharged and acquitted her.

Furthermore, he further submitted the Trial Court ought to have rejected the evidence of the PW3 in Court and his Statement to the Police as both are contradictory. Oath reliance placed on the evidence of PW3, PW4 and PW5 by the Court below in spite of their contradictory nature the learned Counsel for the Appellant further relied on the case of Gbadamosi V. State (1999) 6 NWLR (Pt. 196) 182 at 194 (CA), Nwankwo V. The State (supra) at page 629 and Emuire V. State (1991)

7 NWLR (Pt.204) 480 at 485, to submit that the trial Judge tried to pick holes in the defence of the Accused/Appellant and speculated and later held that it was his belief that the deceased could not have fallen on her own just as that without more.

According to the learned Counsel, in a charge of murder it is not Enough to show that the Accused?s act could have caused the death of the deceased but that the Prosecution has the onus to prove that it did cause the death, and that if the evidence does not show that it did, the failure of the defence to suggest some other cause does not confirm the case of the Prosecution. He asserted that the Court cannot speculate or conjecture as to the cause of death of the Deceased for same has to be proved by the Prosecution beyond reasonable doubt. Adisa V. State (1991) 1 NWLR (Pt.168) 490 at 500, per. Tobi, JCA; (as he then was) was cited in support of his above submission and to urge us to hold that the prosecution failed to prove that the act of the Appellant caused injury to the deceased and that the death of the deceased was the direct result of that injury.

Relying again on NEPA V. Abobieke (2008)

ALL FWLR (Pt.316) 284 at 315, Edoho V. The State (2003) FWLR (Pt.173) 29 at 48 and Adisa V. The State (supra) it was contended that where the Trial Court failed to make proper findings of facts based on the evidence before it, the Appellate Court will definitely interfere and make the proper findings and that the burden of proof of the offence on the prosecution beyond reasonable doubt never shifts and if other totality of the evidence a reasonable doubt about the guilt of the Appellant was created, the Prosecution would have failed to discharge the Onus of proof and the Appellant was entitled to acquittal.

Finally we were urged to hold that the contradictions in the case of the prosecution have created doubts about the guilt of the Appellant and that the prosecution has thus failed to prove the guilt of the Appellant beyond reasonable doubt and accordingly, Issue Number One should be resolved in favour of the Appellant.

ISSUE NUMBER TWO: ?WHETHER THE TRIAL COURT WAS RIGHT TO HAVE CONVICTED THE APPELLANT OF MANSLAUGHTER WHEN THE CASE OF THE PROSECUTION IS REPLETE WITH MATERIAL CONTRADICTIONS (GROUND 2 OF THE GROUNDS OF APPEAL)
In

arguing this Issue, the learned Counsel for the Appellant adopted his argument on Issue Number One paragraphs 4.3. ? 4.19 of his Brief and maintained that apart from the fact that the Prosecution failed to prove part of the Deceased?s body that was hit, the Prosecution also failed to prove who hit the Deceased. For this submission he referred to Exhibit 10 the Statement of the PW3 and eye witness of the Offence to the Police at page 109 lines 23-25 of the Records and the answer to Cross-examination of the PW4 at page 34 lines 170-173 of the Records as to who between Fidelia Amaechi or Anna Amaechi hit the Deceased with a pestle.
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From the above pieces of evidence, the learned Counsel insisted that it is not certain who hit the Deceased and accordingly we were urged to hold that the above contradiction is material which has created serious doubt in the mind of the Court which the Prosecution failed to explain if it is bore in mind that the Prosecution ought to prove its case beyond reasonable doubt. in the above circumstance, the Court below ought to have resolved the contradictions in favour of the Appellant and discharged the Appellant.<br< p=””

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Accordingly, we were further urged that since the Court below to have convicted the Appellant of manslaughter in spite of the contradictions in the Prosecution witnesses testimonies, we should resolve Issue Number Two in favour of the Appellant and uphold Ground 2 of the Grounds of Appeal.

ISSUE NUMBER 3 (THREE): “WHETHER THE JUDGMENT OF THE TRIAL COURT WAS NOT UNWARRANTED, UNREASONABLE AND CANNOT BE SUPPORTED HAVING REGARD TO THE EVIDENCE? (GROUND 3 OF THE GROUNDS OF APPEAL).
Arguing this Issue, the learned Counsel for the Appellant also adopted his arguments on Issues ONE and TWO and referred to page 93 of the Records, the Judgment of the learned Trial Judge at page 89 lines 167-174 thereof where he held that the issue of the Deceased being epileptic did not avail the Appellant after the Medical Report certified that cause of death in my opinion to be Respiratory failure via infra Abdominal hemorrhage from ruptured liver and Assault with blunt object.
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The learned Counsel against the foregoing background opined that the learned Trial Judge failed to advert his mind to the contradictions in the Statement of the eye witness (The

PW3) Saloiruilia Nwosu which also contradicted the Medical Report and the testimony of the Medical Doctor, Further reference was made to Exhibit 10 the said Statement of the PW3 to the Police at page 109 lines 23-25 which contradicted his evidence on Oath at page 29 lines 18-19 of the Records on where the Deceased was hit by s pestle. Also the evidence of PW5 who had stated at page 39 lines 76-81 of the Records that the Deceased had no problem or injury on the head but that the problem was in her abdomen; yet the Court below believed the PW5?S testimony.

He therefore submitted against the foregoing background and urged us to hold that if the learned Trial Judge chose to believe an impossible and improbable story; an Appellate Court has the duty to reverse the decision based on such belief: for this submission he placed reliance on the case of Onuoha V. The State (The State (1989) 2 NWLR (Pt.101) 23 at 35 (S.C) and Emine V. State (1991) 7 NWLR (Pt.204) 480 at 485 to urge us to reject the Medical Report and testimony of the PW3 as both are contradictory which contradiction was not explained away by the Prosecution.

Citing again Nwankwo V. The

State (supra) at page 639 on the need for the Prosecution to prove its case beyond reasonable doubt and that where the prosecution failed to prove the guilt of the Accused, the failure of the Defence to confirm some other source/cause of death of the Deceased does not confirm the case of the prosecution. He submitted on this score that the Defence suggested the possible cause of death at page 104 lines 36-38 of the Records (that is epilepsy) as testified by the 1st Accused Justus Iheazu in his Statement to the Police (Exhibit 2) as well as in his evidence in Court at pages 71 at page 71 lines 645-646 and lines 673-674 of the said pages on the the 8th day of June, 2005 under cross-examination (as DW2).

The learned Counsel submitted that the story of the Appellant that the deceased was epileptic was neither challenged nor controverted by the prosecution adding that it is common knowledge that an Epileptic falls and that an epileptic can hit himself on an object more so when the PW5 the Medical Doctor admitted that the Deceased could fall and rupture her liver (page 39 lines 89-90 refers).
?
On the need for the trial Court to have accepted the

unchallenged or uncontroverted evidence of the DW2 provided that by its nature it was not incredible, we were referred to the case of Oforlette V. The State (2000) FWLR (Pt.12) 2081 at 2009 (S.C), and urged to hold that the prosecution did not challenge the story of the Defence that the Deceased was epileptic under Cross-examination and that the prosecution is deemed to have accepted the story we were further urged to hold that the Deceased fell on the ground as a result of epilepsy and in the light of the foregoing the Judgment of the lower Court was unreasonable and unwarranted having regard to the evidence. this Issue, he finally urged us, should be resolved in favour of the Appellant.

In conclusion the learned Counsel was of the view that:
1. Since the prosecution failed to prove beyond reasonable doubt that it was the act of the Appellant that caused the death of the deceased, the Court below should not have convicted the Appellant of manslaughter but ought to have discharged and acquitted her. Oforlette V. The State (supra) at 2081. (S.C). referred where the Supreme Court convicted the Appellant for assault for the reason that the evidence of

the PW1 (an eye witness) that the Accused hit the Deceased on the head with a stool was unchallenged and that the Court was entitled to act on it since it was not challenged and that the Court was entitled to act on it as it was also not incredible.
2. Conflicting and contradictory stories of eye witness in the present case that the deceased was hit with a hoe was challenged under cross-examination and equally controverted by the Appellant. for example, he pointed out, while the PW3 and eye witness stated under cross-examination on 9/10/2001 at page 30 lines 32-34 of the Records when put to her that: ?None of Accused persons fought the Deceased nor hit her with anything she answered: ?she hit her ?.?
whereas the Appellant in her Defence on 19/5/2005, denied fighting the Deceased nor ever hitting her with a Pestle.

In view of the foregoing, we were urged to allow the Appeal and order the setting aside of the Judgment of the lower Court delivered on 8/11/2005 convicting the Appellant of manslaughter and sentencing her to 5 years imprisonment with hard

labour and to discharge and acquit the Appellant.

ARGUMENTS OF THE LEARNED DIRECTOR ON BEHALF OF THE RESPONDENT ISSUE NUMBER 1 (ONE): ?WHETHER THE PROSECUTION PROVED ITS CASE BEYOND REASONABLE DOUBT AGAINST THE APPELLANT?”
Arguing this Issue the learned Director conceded that it is trite that for the prosecution to succeed in a charge of murder, it has to prove the ingredients of the offence beyond reasonable doubt. he enumerated the ingredients of the offence of murder contrary to Section 319(1) of the Criminal Code, CAP. 30, Vol. II, Laws of Easter Nigeria, 1963 (as applicable to Imo State), which ought to be proved in order to sustain the charge by the prosecution and referred us to the authorities of Ochemaje Vs. The State (2008) 36 NSCQ (Pt. II) 577, Aigbangbee Vs. The State (1998) 1 ACLR 168 at 206 and Section 316 of the Criminal Procedure Law CAP.30, Vol. II, Laws of Eastern Nigeria, 1963 as applicable to Imo State, to submit that the prosecution has proved the ingredients of the office against the Appellant beyond reasonable doubt.
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He argued in support of the above view that in the first place, the Deceased has

died; secondly, her death was not natural, as the Accused/Appellant did something i.e fought the Deceased and hit her with a pestle. page 29 of the Records paragraphs 6-19 (the Evidence of the PW3) where she testified as an eye witness was reproduced Further reference was also made to the evidence of the PW5 one DR. J. N. Osuji at pages 37-39 of the Records as the one who performed the autopsy on the body of the Deceased and issued a Report to the effect that the Deceased died of respiratory failure via intra abnormality from ruptured liver secondary to assault with a blunt object; and that a stick, rod, stone, first could cause the injury.

Based on the above, the learned State Counsel submitted that the prosecution did prove its case beyond reasonable doubt. He relied on the case of Nigerian Air Force VS. Ex Sqn. leader Obiosa (2008) FWLR (Pt.148) 1224 at 1254 paras C-E; where the Supreme Court explained the meaning of proof beyond reasonable doubt; to urge us to resolve Issue Number One in the affirmative and hold that the prosecution proved its case beyond reasonable doubt.

ISSUE NUMBER TWO: ?WHETHER THERE ARE CONTRADICTIONS IN THE EVIDENCE

OF THE EVIDENCE OF THE PROSECUTION WITNESSES AND IF THE ANSWERS IS IN THE AFFIRMATIVE WHETHER SUCH CONTRADICTIONS WERE MATERIAL
On this second Issue the learned Director urged us to resolve same in the negative and referred us to the evidence of the PW3 at Pages 29 -30 of the Records as well as the extra-judicial Statement of the PW3 tendered through the PW4 Inspector Eugene Egwuekwe, to submit that there are no material contradictions vis-a-vis the testimonies of the PW3 and Exhibit 10 (her extra Judicial Statement to the Police). Further references were made to pages 29 lines 9-21 still on the evidence of the PW3 on Oath after which she was cross- examined by the learned Counsel for the Appellant to submit that from the answers to Cross-examination of the PW3, the said witness who was an eye witness to the crime was emphatic when she stated that the Appellant and one other person fought the deceased and hit her with a stick and and that witness was not confronted with her extra judicial statement to contract or discredit her which follows that fighting and beating the Deceased with a stick remained unchallenged.
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It was then asserted that by

virtue of Section of Section 232 Evidence Act, and for purposes of contradicting the witness, the said Section as stipulated has to be fulfilled/complied with by setting her to identify her extra-judicial statement to the Police, draw her attention to the relevant portions of her Statement that are contradictory with her testimony in Court before the Statement will be tendered as Exhibit. He submitted on this score that having not complied with the above provisions, the Appellant did not show that the PW3 contradicted herself as the difficulty the Appellants had is their inability to cross-examine the PW3 on material issues.
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On another score, the learned Director also argued that it is not every discrepancy or inconsistency that will affect the substance of a Criminal charge that has been proved with Credible and unchallenged evidence. Adekoya Vs. The State (2012) 2 MJSC 1 at 22 Paras. F- A) was cited in support of that proposition of the law and urge us to also reject the contention of the Appellant that evidence of the PW3 contradicted evidence of the PW5, the Medical Doctor in material parts. For this he further referred us to the evidence of the PW3

at Page 29 of the Records paras. 9-17 thereof and submitted that from the PW3?S account of the incident, Appellant and two others fought the Deceased and beat her to the ground before she could arrive to the scene the Deceased having cried as a result of the beating apart from the fact that even when the Deceased was lying on the ground, the 2nd Accused hit her (Deceased) with a wooden pestle on her leg.

According to the learned Counsel for the Respondent the above piece of the evidence of the PW3 is consistent with that of the PW5 who confirmed that deceased received injury on her abdomen that led to the rapture of her liver that caused her death. He recalled that the PW5 gave evidence as a Pathologist who performed the autopsy on the body of the Deceased and not as an eye witness. Relying finally on the case of Esangbedo Vs. The State (1998) 1 ACLR 109 at 140; where the Supreme Court warned that where witnesses to one incident reproduce the same or uniform account of the incident, the danger is that their evidence must have been tailored and doctored as in actual life, there is bound to be minor discrepancy/variations in the account of a truthful

witness. On the above note, we were urged to resolve the Issue in their favour and against the Appellant.

ISSUE NUMBER 3 (THREE): ?whether the learned trial Judge was right in finding the appellant guilty of manslaughter rather than murder
Arguing this last Issue, the learned Director urged us to resolve same in the affirmative and hold that the learned Trial Judge was right in finding the Appellant guilty of manslaughter. The learned State Counsel argued that by virtue of the provisions of Section 179(1) of the Criminal Procedure Law CAP. 30 Vol. II, Laws of Eastern Nigeria as applicable to Imo State, the Trial Court has the jurisdiction where in a charge of murder, and at the end of the case the Court finds that the evidence led support manslaughter the Court can convict the Accused on the lesser Offence of manslaughter. Further reference was made to the Criminal Laws and Procedures of the Southern States 3rd Edition by T. A. Aguda- the commentaries at Page 111 paragraph 337. Tsoba Garba V. Gwandu. N. A. (1947) 12 WACA 141; were cited and relied upon in urging us to resolve the Issue against the Appellant as:-
1. The Prosecution

proved its case beyond reasonable doubt against the Appellant.
2. There were no material contradictions in the evidence of the Prosecution?s witness and
3. The learned Trial Judge was right in finding the Appellant guilty of manslaughter rather than murder.

We were therefore finally urged to dismiss the Appeal for lacking in merit.
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In the Appellant?s Reply filed on the 24th March, 2015 but deemed filed by Order of this Honourable Court made in favour of the Appellant on the 25th of February, 2016, the learned Counsel on the ingredients of the offence said to have been proved beyond reasonable doubt by the Prosecution as argued by the learned Senior Counsel for the Respondent, contended still that the prosecution failed to prove ingredients (b) and (c) beyond reasonable doubt as what caused the death of the Deceased according to him was still questionable in view of the evidence of the PW3 that a fight took place between the Appellant, the other Co-Accused and that Appellant hit the Deceased on the leg whereas the Appellant in her defence denied fighting with the Deceased and also denied hitting the Deceased with a

pestle as well as the evidence of the PW3 being challenged under Cross-examination Pages 29 lines 9 -19, 67 lines 540 -549 and 30 lines 2 and 3 of the Records were referred in so submitting.

Upon the assumption though without conceding that Appellant hit the Deceased with a pestle on the leg, he submitted that the hitting on the leg did not cause the death of the Deceased because the Medical Doctor/PW5 DR. Osuji confirmed under Cross-examination at page 37 lines 76 -79 of the Records that the problem of the Appellant was in the region of the abdomen/liver and that the object used on the Deceased could have been used in that region of the abdomen. Page 39 lines 79-85 of the Records further referred). on the basis of the above, he insisted that the testimony of the Pw3 who claimed to be an eye witness contradicts the statement of the medical Doctor (PW5) He argued further and urged us to hold that the hitting on the leg did not kill the Deceased and that the Prosecution had failed to prove that the act of the Appellant caused the death as a direct result of the injury by the Appellant on the Deceased.

?He rehashed his earlier argument on Issue Number

One on the conflict in the testimony of the PW3 on Oath and his statement to the Police at Pages 29 lines 29 ? 30 and 30 line 1 and further submitted that what the PW3 told the Police was not what he said in Court and accordingly the PW3 is not a credible witness whose testimony induces belief since the PW5 told the Court that the Deceased had no problem on the head. We were further urged to hold that the reasonable doubt.
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In response to the Arguments of learned Counsel for the Respondent on Issue B(2) of the Respondent?s Brief, the learned Counsel for the Appellant adopted still his Argument in response to Issue A(1) of the Respondent?s Brief and in respect of the argument of the Respondent?s Counsel?s paragraph 9 of the Issue B on the non-confrontation of the PW3 with her extra-judicial Statement to contradict or discredit her on the evidence of fighting and hitting the Deceased with a stick remained Unchallenged; he contended that the argument is non sequitur because during Cross-examination of the PW3 the allegation of fighting and hitting with a stick was challenged under Cross-examination at Page 30 Lines 2 ? 4 of

the Records and that the Appellant also denied this allegation at page 67 lines 540 ? 547.

In view of the foregoing, he submitted and urged us to hold that the Appellant duly challenged the allegation of fighting and hitting the Deceased with a pestle or stick.

Responding to Issue C (3) of the Respondent we were urged to hold that the evidence led by the Prosecution does not support a conviction for manslaughter. He insisted that the Appeal be allowed and the Judgment of the lower Court set aside.

RESOLUTION OF ISSUES:
Before the resolution of the Issues, let me set down the facts leading to the charge being preferred on the Appellant and her eventual conviction and the Judgment culminating in the Appeal before this Honourable Court.

The facts of the case as summarized by the learned Director of Estates and Trust now representing the State/Respondent are that on the 13th of April, 2000 the PW3 Salomilia Nwosu went to farm at ?Ikpa Mbara Umuntako? and there she saw the Deceased farming as well. They exchanged greetings and she passed the Deceased and went to her (PW3?S) farm.
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While there farming, for a

while, they overheard an unusual noise and she stopped, raised her head and asked where the noise was coming from.

She subsequently heard the cry of the Deceased and the PW3 dropped her hoe and proceeded to the scene to find out what was amiss and on getting there saw the Accused person and one other fighting the Deceased. The PW3 raised an alarm as she saw the Deceased lying on the ground and asked what happened but got no response. While the PW3 was at the scene, the Appellant took a Pestle and hit the Deceased on her leg. The PW3 shouted and ran to the house of the 1st Accused to see if she could see somebody there at. According to the PW3, the Deceased body was covered with oil all over and that he subsequently saw one Bon Nwoke and pleaded with him to accompany her to the scene which he did.

The PW3 then went back to their house and reported to her husband?s relatives what she saw. The Police subsequently arrested the Appellant and one other person who were arraigned before the Magistrate?s Court and later charge before the High Court where they were tried and the Trial Judge discharged the 1st Accused but convicted the Appellant

and sentenced her to five years imprisonment without hard labour thus warranting this Appeal challenging her conviction and sentence by the lower Court.

The case of the Appellant on the other hand as told the Police when the facts were still very fresh in her memory are that she is a house wife. She did not know the Deceased before because she lived in Lagos. On the said 13/4/2000 by 8.30 am, she was coming from somewhere within the village when she heard the voice of her mother- in-law Mrs. Fidelia Amaechi behind their backyard. She went there and saw one woman who came from the same place with the Deceased but her name was unknown arriving at the same time with her (the Appellant) and saw the Deceased and her mother-in-law quarrelling over ridges that was made across their common boundary as the said woman was also farming on the same area.

As a result of the argument between her mother-in-law and the Deceased, the woman who was there along with her asked them that this should not bring them misunderstanding that morning and that whatever be the case, her husband?s father and her (Deceased) people would settle same.
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Following the

statement made by the said woman, the Appellant told her mother-in-law to follow her to their house but as they were going, she heard when the woman from the Deceased place was asking the Deceased what happened as she (Deceased) was shaking or whether it was because of the quarrel between her and the Appellant?s mother?in-law.

According to the Appellant, when she heard this, she came back and saw the woman from the Deceased place asking the Deceased the above question before the Deceased fell down and never stood up. As they were there another woman who was farming there at and from Deceased?s place came with another man also from the Deceased?s place whose names were unknown to her but if seen could be identified who came to his father?in-law and advised his said father-in-law to take the deceased to the hospital. Then his father-in-law Justus Iheazu (the discharged Co-Accused) questioned them that there was no need to take the Deceased to the hospital since nobody from his (in-law?s) family beat the Deceased and that it was the woman and the man who came from the Deceased?s place?s duty to take the

Deceased to the hospital.

After this two other elder men from the Deceased place came to them and demanded for the Deceased to be taken to the Hospital but Appellant and his father-in-law refused. The person from the Deceased place then went to where the Deceased was lying and discussed with other young men with them who disagreed to take them to the Hospital. As the argument was going on and the persons refused to take the Deceased to the Hospital, the Appellant went to their Town Chairman Mr. Feb. Iwuchukwu and reported the matter to him who followed her immediately adviced the persons at the Scene to take the Deceased to the hospital before he gave up the ghost but they all turned down the Chairman?s advice.
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At that juncture, the Chairman advised her (the Appellant) to report the matter to the Police Station at Ahiazu Mbaise, but before arrival of the Police, the Deceased had died. As a result the houses of the Appellant and family were set ablaze and their property damaged as well as firing gun shots all over the Place. The Appellant stated that they had no land dispute between them and the Deceased prior to that incident. She denied using

thing to beat the Deceased nor did any member of her family do so.

RESOLUTION OF ISSUE NUMBER 1 (ONE) OF APPELLANT AND A OF THE RESPONDENT.
Now, in the resolution of this first Issue, I must note that both the learned Counsel for the Appellant and Respondent are ad idem in their respective submissions that it is now trite that by virtue of Section 138 of the Evidence Act, 2004 which was applicable as at the time the offence of murder was allegedly committed, if the commission of a crime by a party to any proceeding is directly in issue in any proceeding be it Civil or Criminal, it must be proved beyond reasonable doubt. Furthermore, subject to the exception in the provisions of Section 141 of the Act, the burden was on the prosecution to prove the essential elements of the offence of murder beyond reasonable doubt. Onah V. The State (1998) 1 ACLR Criminal Law Reports 642, at page 656 rightly cited by the learned Counsel to the Appellant is quite apt.
?
Again, by virtue of Section 316 of the Criminal Code, CAP. 30, Vol. II, Laws of Eastern Nigeria, 1963 applicable to Imo State, and as interpreted by judicial as well as legal Pundits and Authors, the

three constitutive and essential ingredients of murder which ought to be proved beyond reasonable doubt have been rightly enumerated in line with the authorities of Ochemaje V. The State (2008) 36 NSCQR (Pt. II) 577, Aigbangbee V. The State (1998) 1 ACLR 168; particularly at page 206 as also cited in support of the learned Director for the Respondent?s argument.
Commenting on these essential elements in the recent Supreme Court case of Iliyasu V. The State [2015] 11 NWLR (Pt. 1469) 26 at 52 paras E ? H and 53 paras. A ? D, the Noble and erudite Nweze, J.S.C characteristically reasoned while interpreting the provisions of Section 221 of the Penal Code which creates the offence of culpable Homicide punishable with death equivalent to murder under Section 219 of C. C. that:
?The three constitutive elements or ingredients of the offence which must be proved in order to secure a conviction under this Section have been generously out lined in case Law; Maigari V. The State (2013) 6- 7 MJSC (Pt. II) 109, 125, (2013) 17 NWLR (Pt.1384) 425 citing Ochemaje V. The State (2008) SCNJ 143, (2008) 15 NWLR (Pt. 1109) 57; Daniels V. The State

(1991) 8 NWLR (Pt.212) 715; Obande V. The State (1996) 4 NWLR (Pt.443) 375, 376.
Under the said Section, the Prosecution is obliged to prove.
(1) That the deceased died;
(2) That his/her death was caused by the Accused;
(3) That she/he intended to either kill the Victim or cause her/him grievous bodily harm.?
These ingredients which are the same with the ingredients of the offence of murder under the Criminal Code, have witnessed consistent espousal in many jurisdictions, for example, by English Courts. R. V. Hopwood (1913) 8 Cr. App. R. 143; Hyam V. D.P.P (1974) 2 ALL ER. 41 Woolmington V. D. P. P. (1935) AC 462; by Nigeria Courts, Madu V. The State (2012) 15 NWLR (Pt.1324) 405 443, citing Durwode V. The State (2000) 15 NWLR (Pt.691) 467; Idemudia V. State (2001) FWLR (Pt.55) 549, 564; Akpan V. The State (2001) FWLR (Pt.56) 735; (2000) 12 NWLR (Pt. 682) 607 and by Courts in other Commonwealth jurisdictions, see for example R. V. Nicchols (1958) QWR 46; R. Aughes (1958) 84 CLR 170; Timbu Kolian V. The Queen (1968) 42 ALL JR; R. V. Tralka (1965) Qd. R. 225 (Queensland Australia).?
The learned Law Lord further

posited that Scholars seldom disagreed with judicial authorities on this question. C. O Okonkwo, Okonkwo and Naish: (Criminal Law in Nigeria) (second Edition) (Ibadan: Spectrum Books Ltd. 1988) passim; Archbold?s pleadings: Evidence and Practice in Criminal cases (Fourth Edition) (London: Sweet and Maxwell, 1979) passim: K. S. Chukkol, The Law of Crimes in Nigeria (Zaria: Ahinadu Bello University Press Ltd. 1988); P. Ocheme; The Nigerian Criminal Law (Kaduna). Liberty Publications Ltd; 2006) 194 et seq; all Leading Authors and s on Criminal Law were all referred to in so holding.
What all the authorities above cited dovetail into is that, in order to convict the Appellant for murder as charged, the Prosecution ought to prove beyond reasonable doubt apart from the death of the Deceased, that her death resulted from the act or injury inflicted on her by the Appellant who must have inflicted the injury on the Deceased with the manifest intention and knowledge that death was the probable consequence of her act.?
The onus was also on the prosecution to prove that not only did the act of the Appellant cause the death of the Deceased but that in

actual fact the deceased died as a consequence of the exclusive act of the Appellant without any other possibilities or intervening act or reason see per Adekeye, JSC in Edoho V. The State at pages 18-19 Paras. B ? C of (2010) LPELR ? 1015 (SC).

In the instant case, whereas, the learned Counsel for the Appellant contends that the Prosecution did not prove the essential ingredients of the offence of murder or even manslaughter, the learned Director on behalf of the Respondent has argued Per contra and insists that the prosecution had proved beyond reasonable doubt that the Appellant committed the offence. We shall now proceed to consider the evidence adduced by the prosecution witnesses against the essential ingredients of the offence of murder or manslaughter in order to determine whether or not the prosecution discharged the burden of proving these constitute ingredients or essential elements of murder.

INGREDIENT NUMBER 1 (ONE): THAT THE MARGARET NWOSU HAS DIED.
Without doubt there is no dispute that the said Margaret Nwosu died on the 13th day of April, 2000 at Ikpa Mbara Umuozu Ugri in Isiala Mbano in Mbano/Etiti Judicial

Division of this State. The PW3 who was an eye witness and indeed the Appellant and the PW5 as well as all other witnesses have confirmed this unfortunate incident. Therefore what is admitted needs no further proof.
?
INGREDIENT NUMBER 2 (TWO) ?THAT THE DEATH OF THE DECEASED HAD RESULTED FROM THE ACT OF THE APPELLANT?
In proof of this element both learned Counsel had alluded to the evidence of the PW3 both in Court and his extra-judicial Statement admitted and marked Exhibit 10 which the learned Counsel for the Appellant contends are conflicting such that the Court below ought not have relied on them in convicting the Appellant even for manslaughter not to talk of murder. Again, the learned Counsel for the Appellant also submits that the said evidence of the PW3 is in utter conflict with that of the PW5 the Medical Doctor who performed the autopsy on the body of the Deceased on the cause of her death. The learned Director however has on the contrary contended that there are no such conflicts or contradictions in the testimonies or evidence of the PW3 and PW5. Certain pages of the Records have been alluded to and our attention drawn to

buttress each other?s position.

Beginning from page 29 lines 12-20 thereof, the PW3 after being sworn testified on Oath as follows:-
?As I was farming for a while, I heard an unusual noise. I stopped raised my head and asked where it was coming from I then heard the cry of the Deceased, I dropped my hoe and proceeded to the area to find out what was happening. I got there and saw the Accused persons and one other fighting with her. I raised an alarm and I saw the Deceased lying on the ground and asked. what was the matter but no reply. The 2nd Accused then took a pestle and hit the Deceased on her leg. I shouted and ran to the house of the 1st Accused to see if I can see anybody there. The Deceased body has oil all over her?

However, at page 34 line 166 when the PW4/IPO Inspector Eugene Egwuekwe was questioned:
?Q. You recorded the Statement of PW3?, he answered: ?Ans. Yes my Lord.? on the further question: ?Q. she told you that the deceased was hit on the head; he also answered: ?Ans. yes my Lord?.
?
It would be recalled that the extra-judicial Statement of the PW3 was tendered

admitted and marked Exhibit 10, through the said Inspector/IPO at pages 35 lines, 183-184 of the Accused, the said PW3?S Statement is contained at page 109 of the Records and in lines 20-25 the witness stated thus:-
?I was farming when I heard her voice with which attracted me and on reaching there met when Justus Iheazu, his wife Fidelia Amaechi and son?s wife Anna Amaechi engaged fighting her. During the process, the wife of Justus Iheazu later known as Anna Amaechi hit late Margaret Nwosu on the head with Palm fruit Pounding pestle for which she was unconscious as she fell down. As a result of this I ran to one Boniface from the suspects? Village and informed him about the incident.?

As was also argued by the learned Counsel for the Appellant, the PW5 (the Medical Doctor who performed the autopsy on the body of the Deceased as to the cause of her death), testified on Oath in Court on the 22nd day of May, 2002 at page 38 lines 67 -69 of the Records.
thus: ?Based on a diagnosis of respiratory failure via intra abnormality from ruptured liver secondary to assault all blunt object was made and this report was

issued. That?s with in my opinion, a stick, rod, stone, fist could cause it and taken as blunt object.?

At page 110 of the Records lines 30 -34 the said Doctor Osuji/PW5 in the Autopsy Report stated inter alia that:
?Certify the cause of the death in my opinion to be:
Respiratory failure via intra ? abdominal Haemorrhage from ruptured liver 2 Assault with blunt objects.?

Under cross-examination at page 39 lines 76 -89 the following question and answer session went on between the learned Counsel for the Appellant and the PW5.
?Q. It is correct that going by your Report the Deceased had no problem in the heard area. He had no head injury.
?A. Yes.
?Q. Going by this Report, you said use of blunt object. That object could have been used in that region of the liver, the abdomen.
?A. yes.
?Q. In your Report you have mentioned the blunt object that could have been used.
?A. Yes
?Q. can a fall also cause rupture of the liver.
?A. Yes?
?
From the totality of the evidence of the witnesses both extrajudicial and

as adduced in Court there is uncertainty as whether the Appellant?s act or injury inflicted on the Deceased caused the death of the said Deceased. Put differently, the prosecution failed to prove that the act of Appellant caused injury to the deceased and that the death of the Deceased was the direct result of that injury.
?
I have carefully considered firstly the evidence of the PW3 Salomilia Nwosu who purported to be an eye witness to the commission of the offence by the Appellant. Whereas she purported on Oath on the 9th of October, 2001 when she testified in Chief, that the 2nd Accused (now Appellant) struck the Deceased with a pestle on her leg and that she (the Witness) shouted and ran to the house of the 1st Accused to see if she could see anybody; in her Extra-judicial Statement tendered through the PW4 Inspector Eugene Egwuekwe on the 21st day of February, 2002 and marked Exhibit 10 and which statement was made when the facts of the incident were still very fresh in her memory, she turned somersault and claimed that the Appellant hit Margaret Nwosu the Deceased victim on the head with palm fruit pounding pestle for which she was

unconscious as she fell down. Moreover, whereas in the said Exhibit 10 the witness also claimed that as a result of the hitting she ran to the house of one Boniface, in her evidence in Court she had claimed that she ran to the house of the discharged 1st Accused.

It is also pertinent to note that the PW4 in his testimony earlier reproduced confirmed that the PW3 informed him in the course of recording her Statement that the Appellant hit the Deceased on the head. To worsen matters for the Prosecution, the PW5 (DR Osuji) who performed the autopsy on the body of the Deceased nailed the coffin of the prosecutions? case when in both his Autopsy Report and evidence in Court he found that there was neither any injury on the head nor leg of the Deceased as according to him, the cause of death was respiratory failure via intra- abdominal Haemorrhage (bleeding) from ruptured liver due to assault with blunt object.
?
Upon the assumption that the ruptured liver was as a result of assault, even the Medical Report has been rendered doubtful by the Medical Doctor as to whether it was actually the Appellant who hit the Deceased on the abdomen when under

cross-examination the PW5/Doctor admitted that a fall can also cause a rupture of the liver. Moreover, the blunt object could have been used to hit the Deceased on the stomach but the PW3 did not tell the Court that the Appellant hit the Deceased on her stomach or abdominal region.

It is also necessary here in to remark that from the evidence of the PW3 on Oath and her Extra-Judicial Statement, there is also conflict as to whether the Appellant hit the Deceased on the head before he fell and became unconscious or that the Deceased was found lying on the ground as she approached the scene before the Appellant hit the Deceased on the leg.
?
In my humble opinion, the evidence of the prosecution witness were fraught with contradictions and not mere discrepancies such that the Court below ought to be circumspect in relying on them to convict the Appellant in that apart from not having discharged the burden of proving that death of the Deceased resulted from the act of the Appellant, there is also no probative evidence from the witnesses to establish whether the act or omission of the Appellant was intentional with the full knowledge that death would occur

or that grievous bodily harm would be done to the Deceased.

I am not oblivious of the decision of the Nigeria Air Force Vs. Ex Sqn. Leader Obiosa (2008) FWLR (Pt. 148) 1224 particularly at 1254 paras. C ? E that:
?Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted of fanciful possibilities to defeat the cause of justice. If evidence is so strong against a man as to leave remote possibility in his favour which can be dismissed with the sentence ?of course it is possible but not improbable? the case is proved beyond reasonable doubt and nothing short of that will suffice.?
The learned Director has rightly stated the position of the law as was decided in the case above cited which re-echoed the dicta of Oputa, JSC (now of blessed memory) and Karibi-Whyte, JSC in Bakare V. The State (1987) 1 NWLR (Pt. 52) 581; which I also adopted in my contribution the lead Judgment of Ogunwumiju, JCA in Moses Jua V. The State (2007) LPELR ? 8759 (CA) at page 36 Paras. B ? G, and which I also adopt herein that:
?There is no

doubt that the standard of proof in a charge of murder as in all Criminal matters, is beyond reasonable doubt in view of the compelling presumption of innocence as enshrined in our Constitution and our adversary system of justice. However, the prosecution is not expected to prove the guilt of the Accused beyond the shadow of doubt as such standard could not have been contemplated by our law which admits of the fact that absolute certainty is impossible in any human adventure. As Oputa, JSC with Karibi ? Whyte concurring asserted in Bakare Vs. The State (1987) 1 NWLR (Pt.52) 581 at rationes 8 and 10:- ?Proof beyond reasonable doubt means just 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 probability.?
See also Jua V. The State (2010) 4 NWLR (Pt.1184) 217 at 243 paras. C ?and D ? E Per Tobi, JSC who affirmed our Judgment at the Ilorin Division of this Court and the case of Ani V. The State (2009) 6 NWLR (Pt.1168) 443 at 458 Paras E ? F; where the Emeritus and Erudite Law Lord explained the meaning of

reasonable doubt as ?fully satisfied entirely convinced? and that in Criminal cases, the guilt of the Accused must be established beyond reasonable doubt which means that the facts proven must, by virtue of their probative force, establish guilt. Such reasonable doubt which will justify acquittal is, according to the learned Law Lord, doubt based on reason arising from evidence or lack of evidence, and it is doubt which a reasonable person might entertain but not fanciful or imagined doubt. Thus reasonable doubt should be such doubt as would induce a prudent man to be hesitant before acting in matters of importance to him. Refer to Black?s Law Dictionary 6th Edition, pages 161 and 1265.
?
Going by the above authorities, it is clear to me that for the Court below to have convicted the Appellant either for murder or manslaughter, the evidence adduced by the Prosecution must have been cogent and compelling and must point irresistibly to the guilt of the Appellant and nothing else. In other words, the totality of the evidence of the witnesses as well as the documentary Exhibits tendered must be consistent with each other and devoid of

contradictions and inconsistencies or discrepancies on material particulars of the offence.
Where however such contradictions or inconsistencies exist, the Prosecution must explain same away to the satisfaction of the trial Court and if without such explanations, the Court below goes ahead to convict the Accused on such contradictory evidence, an Appellate Court like ours will set such a conviction aside and replace same with an acquittal. See, Nwachukwu V. The State [2000] F.W.L.R. (Pt. 28) 2195 at 2208 Paras. G ? H, Citing Ikemson Vs. The State (1998) 3 NWLR (Pt. 110) 455 Per Ikongbeh JCA (of blessed memory).
In the instant case, the learned Counsel for the Appellant has cited and relied on the self same Ikemson V. The State (supra) and Nwachukwu V. The State (supra) to submit that the contradictions as highlighted in the evidence of the prosecution witnesses were not explained away and as such the lower Court ought to have discharged and acquitted the Appellant. I agree totally with the learned Counsel for the Appellant that this is the correct position of the Law.
?Belgore, JSC who read the lead Judgment of the Supreme Court in the

case of Ikemson V. The State (1989) 3 NWLR (Pt.110) 455 at 466 paras. A ? B; had posited that:
?If there are contradictions in the evidence of the prosecution, and the contradictions go materially to the charge, doubt will be created and benefit of it must be given the Accused person, in which case he will be discharged.?
At page 474 paras. H to 475 Paras A ? C; Karibi-Whyte, JSC; in his contribution asserted that there is no doubt and that it had long been settled that only contradiction in respect of a material fact would make the Court doubt the evidence. And what is material will depend upon the facts of the particular case. Nasuma V. The State (1979) 6 ? 9 S. C. 153 ? 158 ? 9 refers. According to His Lordship:
?I think it is right to postulate that material evidence, is such evidence which on account of its logical nexus with the issue tends to influence decisively the establishment of the fact in issue. The evidence referred to are not such as must necessarily be taken into consideration in determining the question, and it is neither by itself nor in connection with other evidence

determinative of the issue.?

The learned Counsel was also on very firm pedestal when he cited Nwodo V. The State (1991) 4 NWLR (Pt.185) 341 at 345; where this Court decided that when a witness is shown to have made a previous Statement as in this case inconsistent with the evidence given by that witness at the Trial, the Trial Judge should not merely reject the evidence given at the trial as being unreliable, but that the Judge should also hold that the previous one whether sworn or unsworn, does not constitute credible evidence which can be acted upon Onubogu V. The State (1974) 1 ALL NLR 5 at 17. In the instant case, the evidence of the PW3 both on Oath and in Exhibit 10 her extra-judicial statement contradict themselves as well as that of the PW5 and his Autopsy Report (Exhibit 11) on the cause of death of the Deceased not to talk of whether the Appellant manifested the intention to kill the Deceased or do her grievous bodily harm and accordingly the Court below ought to have rejected the evidence of the PW3 the purported eye witness as that Court on the authorities of Gbadamosi Vs. The State (1999) 6 NWLR (Pt. 196) 182 at 194 (CA); Nwankwo V.

The State (1990) 2 NWLR (Pt.134) 627 at 629, Emine V. The State (1991) 7 NWLR (Pt. 204) 480 at 485; had no jurisdiction to believe evidence of a witness in installments or pick and choose what part of the witness? evidence to believe or disbelieve as a witness is either credible or incredible.

At page 89 of the Records lines 160 -169, the learned Trial Judge had rejected the evidence of the Appellant that the Deceased Margaret fell down and PW3 asked her what was wrong and whether the deceased had feats of epilepsy. As the Deceased was crying the Appellant and Fidelia her mother?in-law came back to help and subsequently went home to call for the 2nd Accused who followed them to the scene and pleaded to no avail to the Deceased to get up.

According to the learned Trial Judge he found it difficult to believe that two women were quarrelling and others came to help make peace (in this case the DW1) and later asked her mother-in-law Fidelia that they should go home. Just as they made to go one of the women (the Deceased) fell down and started shaking and fainted.

The learned Trial Judge maintained that:
?It is my belief that

the Deceased could not have fallen on her own just as that without more. Moreover, DW1 admitted that PW3 was an eye witness and there was no suggestion that PW3 was lying against her. The issue of the Deceased being epileptic does not avail, not after the Medical said?.?

I agree completely with the learned Counsel for the Appellant that holding of the learned trial Judge as above quoted was in the realm of speculation although it is within his exclusive realm to believe or disbelieve a witness since he had the singular opportunity of hearing and watching the demeanour of the witnesses, However, where the PW3 and so called eye-witness could not tell where the Appellant dealt the Deceased the lethal blow and the medical Report of the PW5 which the learned Trial Judge relied upon had also discredited the evidence PW3, the learned Trial Judge had no jurisdiction to pick and choose from which evidence to believe but ought to reject the evidence of the eye witness as incredible.

The learned Counsel for the Appellant aptly submitted on the authority of Nwankwo V. The State (supra), Emine

V. The State (supra) and Adisa V. The State (1991) 1 NWLR (Pt.168) 490 at 500 per Tobi, JSC; who had characteristically posited on this stance of the Trial Court that:
?Judges are not allowed by law to speculate or conjecture on possible facts. They do not have such jurisdiction that is wrong. The only jurisdiction they have is to make use of the cold facts of the case as presented by the parties in open Court, and use them. They cannot do more. They cannot do less, such is the job of a Judge. After All, A Judge is not a metaphysician. He is not a soothsayer. He is simply a Judge of Law.?

In the course of writing this Judgment I came across the case of Jizurumba V. The State (1976) 1 NWLR 303 at 309 -310 Per Idigbe JSC with whom Fatayi-Williams and Obaseki, JJSC of the Supreme Court of Law concurred, on this subject of inconsistency of a Witness? unsworn Statement with his evidence on Oath, citing with approval Joshua V. The State [1964] ALL N.L.R. 1 at 3 where the Supreme Court observed that:
?In the case of a witness who had made previous statements inconsistent with evidence given at the trial the Court has to

be slow to act on the evidence of such a witness.?
Their Lordships went on to assert that in the same way, the Deposition or (Statement made on Oath) at a committal proceeding of a witness who subsequently gave evidence at a Criminal trial may be used to discredit his testimony if the trial Court allows the witness to be treated as hostile, but they cannot be substituted for his evidence at the trial R. V. Birch [1924] 93 L.J.K.B. 385 and R. V. Golder & Ors [1960] 3 ALL ER 457. They continued that in emphasizing the above principle of law, some expressions used in various Court decisions suggest that the jury is bound to disregard the entirety of the testimony of such a witness (i.e a witness discredited by his previous inconsistent Statements). The learned Law Lords further alluded to their dictum in the case of Agwu & Ors. V. The State [1965] N.M.L.R. 18 at 20; where the Apex Court expressed the view that: ?if it appeared that a witness had formerly said or written the contrary of what he later swore in evidence (unless the reason of having done so was satisfactorily accounted for) his evidence should not have weight.?
In

other words, everything depends on the circumstances of the case, if explanation satisfactory to the trial Court is given for such inconsistency, and the inconsistency is not substantial, the Court, although, ?if should be slow to do?, may, however, accept the other portions of the evidence given at the trial by such a witness, as indeed, the Court of Criminal Appeal in England did in R. V. John Williams (1913) 8 Cr, App. R. 133 Per Lord Alverstone, C. J. at page 140.”

No explanation has been offered for the inconsistency which is not minor in this case so as to dispense with such explanation. I am of the candid view and intoto with the learned Counsel for the Appellant and on the authorities above cited together with NEPA V. Abobieke (2008) ALL FWLR (Pt. 316) 284 at 315 and in particular Edoho V. The State (2003) FWLR (Pt. 173) at 48 and Adisa V. The State (supra) ably cited by the learned Counsel for the Appellant that the evidential burden which never shifts until completely discharged, has not been discharged by the prosecution to establish the essential ingredients of the offence of murder nay manslaughter as shall be

demonstrated anon while considering the other remaining Issues.

In the instant case there is considerable doubt that has been created from the inexplicable and irreconcilable conflicts in the evidence of the prosecution witnesses on whether the Appellant was actually the one who dealt the Deceased the blow that eventually led to her demise not to talk of proof of the third ingredient of the offence of murder which ought to be proved concomitantly or concurrently in order to find the Appellant guilty of the offence charged. That being the case, the doubt created by the evidence of the witnesses for the prosecution ought to be resolved in favour of the Appellant. Issue Number 1(ONE) or (A) of the Appellant and Respondent shall therefore be resolved in favour of the Appellant.
?
RESOLUTION OF ISSUE NUMBER 2 (TWO) AND C OF THE APPELLANT AND RESPONDENT: ?WHETHER THE TRIAL COURT WAS RIGHT TO HAVE CONVICTED THE APPELLANT OF MANSLAUGHTER? AND ?WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN FINDING THE APPELLANT GUILTY OF MANSLAUGHTER RATHER MURDER
In the resolution of this Issue, I also adopt hook line and sinker my elaborate stance on

Issue Number One (1). However before delving into the meat and substance of the respective arguments of Counsel, I shall refer to certain provisions of the Criminal Code dealing with the question posed by the Issue. Firstly, Section 315 of the Criminal Code CAP. 30. Vol. II Laws of Eastern Nigeria (1963) as applicable to Imo State provides that:
?315. Any person who unlawfully kills another is guilty of an offence which is called murder or manslaughter, according to the circumstances of the case.?

Section 317 of the Code on the other hand, defines ?manslaughter? by providing thus: ?A person who unlawfully kills another in such circumstance as not to constitute murder is guilty of manslaughter.?

In the commentaries to Section 317 of the Code as can be found in Paragraphs 1659 page 733 to 1680 page 742 of the ?THE CRIMINAL LAW AND PROCEDURE OF THE SOUTHERN STATES OF NIGERIA? 3RD EDITION by T. Akinola Aguda Sweet & Maxwell Publishers, the incidents or circumstances under which murder may be reduced to manslaughter have been highlighted and they include killing by several persons in circumstances

where it cannot be shown in whose hand life was extinguished, killing of a person believed to be dead; killing by fighting; contests and games; killing in defence of property or person; self-defnce against unprovoked attack/assault; self defence; and fighting; persons aiding self-defense; killing in defence of property; killing by correction; killing by negligene; motor-vehicles; killing by an unlawful act; killing by surgical instruments and killing without intention in the furtherance of another offence.

It would be recalled that at pages 90 and 91 of the Records beginning from line 203 -206 to 209; the learned Trial Judge had stated the rationale behind his convicting the Appellant for manslaughter rather than murder thus:
?The case against the 2nd Accused is strong and her defence as ex-rayed above is weak. I believe she had a hand in whatever happened to the Deceased on that fateful day. As I have in an earlier Ruling maintained this matter has been reduced to one of manslaughter. There was a fight or scuffle on the spur of the moment. The animus is lacking. I therefore find the 2ND Accused guilty of manslaughter of Mrs. Margaret

Nwosu.?

I searched through the entire Record of Appeal but could not see where the learned Trial Judge ruled on the reduction of the charge to manslaughter. Be that as it may, the learned Counsel to the Respondent has relied on the provisions of Section 179(1) of the Criminal Procedure Law CAP.30 Vol. II, Laws of Eastern Nigeria, 1963 (as applicable to Imo State) as conferring the Court below with the requisite jurisdiction to reduce murder to manslaughter at the end of trial where the evidence so warrants. Our attention has also been drawn to the ?Criminal Laws and Procedure of Southern States 3rd Edition (supra) at page 111 paragraph 337 and the case of Tsabo Garba V. Gwandu N. A. (1947) 12 WACA 141, to urge us to resolve the Issue against the Appellant.
?
Ordinarily, if the prosecution had succeeded in proving the case against the Appellant then killing by fighting would have been established in which case (see the commentary at page 1667 of the same Criminal Law and Procedure of South States (supra) at page 736), the offence may be either murder, manslaughter, or homicide in self-defence according to the circumstances. According to

the learned Author, such a killing done in any of the circumstances that is in a quarrel or as set out in Section 316 of the Criminal Code, will be murder unless it is done in self-defence, in which case it is justified or excused by law, or under provocation as to reduce the offence to manslaughter (Section 318 of the Code refers). The Learned Author cited R. V. Alo (1942) 8 WACA 13; where the deceased had challenged the accused to a fight with machetes and the fight took place immediately and the killing was held to be manslaughter.
As regards killing in self-defence and fighting, the learned Author at page 738 paragraph 1672 referred to the dictum of Lindley, J. in R. V. Knock (1877) 14 Cox C. C. 1 who reasoned that:
?If a man attacks me, I am entitled to defend myself, and the difficulty arises in drawing the line between mere self-defence and fighting. The test is this: a man defending himself does not want to fight, and defends himself solely to avoid fighting. Then supposing a man attacks, and I defend myself, but still fighting ? in one sense- to defend myself, and I knock him down, and there by unintentionally, kill him,

that killing is accidental.?

The above may be one of the reasons why the Court below reduced the punishment for murder to that of manslaughter since it would appear that the Court conceded that the Appellant had no mens rea to kill the Deceased as her death resulted from the fight between her and the Appellant.

In respect of Section 179 of the Criminal Procedure Law CAP.30 VOL. II Laws of Eastern Nigeria cited by the learned Director and the commentary thereof, the said Section provides as follows:-
?179(1) In addition to the provisions herein before specifically made, whenever an offence consisting of several particulars a combination of some only which constitutes a complete offence itself and such combination is proved but the remaining particulars are not proved, he may be convicted of such lesser offence or may plead guilty thereto although he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he was not charged.?

I think Subsection (2) of Section 179 of the Criminal Procedure Law may

have been invoked and indeed covers what the learned Trial Judge did when the evidence in view disclosed that there was a fight between the Appellant and the Deceased before the said Deceased died without the Intention (Means rea) to kill the said Deceased. The case of TSOBA GARBA V. GWANDU N. A. (1947) 12 W.A.C.A 141; cited by the Director is also instructive as same was actually cited in paragraph 337 at page 111 of the Criminal Law and Procedure of Southern States by T. A. Aguda where the learned Author commenting on Subsection (1) of Section 179(1) of the Criminal Procedure Law stated on that authority that: ?On a charge of Murder there is power to convict for manslaughter, but not of an act intended to cause grievous harm or a serious assault. R. V. Noku of Fusa (1940) 6 W. A. C. A. 203; R. V. Nta (1946) 12 W.A.C.A. 54.?
In respect of Subsection (2), the learned Author also commented at page 112 Paragraph 339 of the citing R. V. Tyson (1945) 11 W.A.C.A 90, R. V. Eronini (1953) 14 W.A.C.A 366 and Sagoe V. The Queen [1963] 1 ALL N.L.R 20; that whether at Common Law or by virtue of Section 166 of the Criminal Procedure Law, it

is clear that if the particulars of the offence alleged in a charge are not proved in full, but the offence is proved in relation to some particulars alleged, the Accused may be convicted accordingly without the necessity of a formal alteration of the charge.

However, the crux of this issue is not whether the Court below was right to have reduced murder to manslaughter with which he convicted the Appellant subsequently, but whether the Prosecution indeed proved manslaughter. In the recent Supreme Court case of Charles Egbirika V. The State (2014) LPELR- 22009 (S.C.); Kekere Ekun, JSC; at pages 27, 28 paras. E ? G; and 29 paras. F – G, elaborately dealt with the offence of Manslaughter and the interpretation of Sections 315, 316 and 317 earlier on cited in Issue Number 1. (ONE). For example the Erudite Law Lord cited Ejeka V. The State (2003) 7 N.W.L.R. (Pt. 819) 408 and 427; where Tobi, JSC defined Manslaughter as the unintentional killing of a human being such killing being not pre-mediated but accidental in the sense that it was not intentional. Maiyaki v. The State (2008) 15 N.W.L.R. (Pt. 1109) 173 at 204 referred.?
In the said Ejeka’s case

the learned Justice restated the time honoured principle of our law as I also did state on Issue Number One (1) that the duty of the prosecution is to establish its case against the accused person beyond reasonable doubt as enjoined by Section 135(1) of the Evidence Act, (2011) (then Section 138(1) of the 2004 Act). His Lordship also cited Section 135(3) of the Act which provides that if the prosecution proves the commission of the offence beyond reasonable doubt, then the burden of proving the contrary shifts to the Defendant. His Lordship further posited in line with the decisions in Esangbedo v. The State (1989) N.W.L.R. (Pt. 113) 5 at 69 – 70 H – A; and Woolmington v. D.P.P. (1935) A.C. 462; “That the position of the law is that the legal burden of proving its case against the Accused person beyond reasonable doubt rests squarely on the prosecution and never shifts. However, the burden of introducing evidence on an issue, known as the evidential burden, may be placed by law on either the prosecution or defence depending on the facts and circumstances of the case. Where the evidential burden placed on a party in respect of a particular issue is not

discharged, the issue would be resolved against the party without much ado.”

In the instant case, I had earlier held that because of unexplained inconsistencies in the testimonies of the PW3 who was the purported only eye witness as to whether the Appellant caused the death of the deceased not to talk of the circumstances under which death was occasioned, the prosecution failed to discharge the legal burden of proving manslaughter in order to shift the burden of proving the contrary to the Appellant. Indeed the learned Counsel for the Appellant has rightly argued that apart from the failure of the prosecution to prove the part of the Deceased body where she was allegedly hit with the pestle or stick, the prosecution also failed to prove the actual person who did the alleged killing.
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For instance in Exhibit 10, the PW3 had told the Police that she was farming when she heard the voice of Madam Margaret Nwosu which attracted her and on reaching the scene met the Deceased, Justus Iheazu, his wife Fidelia Amaechi and son’s wife Anna Amaechi engaged in a fight. According to the PW3:
“During the process, the wife of Justus Iheazu later known as Anna

Amaechi hit the late Margaret Nwosu on the head with Palm fruit pounding pestle.”

As was also submitted by the learned Counsel for the Appellant in the course of the cross-examination at page 34 lines 170 – 173 of the Records; the said PW4 Investigating Police Officer admitted that the wife of Justus Iheazu (discharged 1st Accused) was late Fidelia Amaechi thus:
“Question: Do you know the wife of Justus Iheazu.
“Ans. Yes my Lord.
“Question: Who was she?
Ans: Late Fidesia Amaechi.
“Question: Part of her statement was that she was hit on the head by the wife of Julius Iheazu.
“Ans. That is not true.”
At that juncture, the learned Counsel for the Appellant called for the statement to be tendered and thereafter the learned Counsel questioned the PW4.
“Q. The 2nd Accused is not the wife of the 1st Accused.
“Ans. Yes my Lord.”
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I agree completely with the learned Counsel for the Appellant that the PW3 could not identify whether it was Anna Amaechi or Fidelia Amaechi who hit the Deceased with a pestle. In any case, the fact that the Deceased was hit on the head with that pestle had been discredited by the PW5 and

the PW3 herself who turned somersault on Oath to testify that the Appellant hit the Deceased on the leg.

The contradictions as earlier noted as well as the inability of the PW3 to identify who as between the Appellant and Fidelia Amaechi hit the deceased with the pestle or stick all go to show that the PW3 was not a witness of truth and ought not to have been believed by the Court in convicting the Appellant of manslaughter.

Again, the doubt created in the evidence of the PW3 as to who actually hit the deceased with a stick also goes to show that the prosecution did not prove its case beyond reasonable doubt and as was decided by the Supreme Court cases earlier cited, such doubt ought to have been resolved in favour of the Appellant and the Appellant discharged and acquitted.

In the light of the foregoing, Issues Number 2 of the Appellant and C of the Respondents are hereby resolved in favour of the Appellant as the Court below ought not to have convicted the Appellant of manslaughter.
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ISSUES NUMBER 3 OF THE APPELLANT AND B OF THE RESPONDENT: “WHETHER THE JUDGMENT OF THE TRIAL COURT WAS NOT UNWARRANTED, UNREASONABLE AND CANNOT BE SUPPORTED

HAVING REGARD TO THE EVIDENCE?” AND “WHETHER THERE ARE CONTRADICTIONS IN THE EVIDENCE OF THE PROSECUTION WITNESSES AND IF THE ANSWER IS IN THE AFFIRMATIVE WHETHER SUCH CONTRADICTIONS WERE MATERIAL?.”

Before resolving the issues above reproduced, I must remark that the question posed by the learned Director on behalf of the Respondent, had earlier on been answered in my resolutions of Issues One and Two of the Appellant and A and C of the Respondent’s respective Counsel. It suffices to say that where a party complains in his/her Ground of Appeal that the Judgment of a trial Court is unreasonable, unwarranted and cannot be supported having regard to the evidence, the evaluation of the totality of the evidence by the trial Court and the ascription of probative value of the testimonies of those witnesses as well as the conclusion reached from the evaluation process, is called into question.

The Law is however trite on authorities too numerous to mention but see for instance Nnadozie v. Mbagwu (2008) 3 N.W.L.R. (Pt. 1074) 363 at 387 paras. B – D, Odi v. Iyala (2004) 8 N.W.L.R. (Pt. 875) 283 at 309 paras. E – F and Buhari v. INEC (2008) N.W.L.R. (Pt. 1120)

246 at 409 – 412 paras. A – G; all decided by Tobi, JSC to mention but a few; that it is within the exclusive purview of the trial Judge who had the opportunity of hearing and watching the demeanour of the witnesses to evaluate the evidence of witnesses and ascribe probative value to them and once the trial Judge has dispassionately carried out that function, an Appellate Court like ours seised only of the bare Record of Appeal, should be wary to interfere with the trial Judge’s findings except such findings are perverse or not borne out of the evidence or that the Court misapplied the law to proved facts.
However, as I said in Adwale Adedara v. The State (2009) L.P.E.L.R. – 8194 (CA) 109 – 110, Paras. A – D; and 104 – 106 Paras. G – A, which position I hereby re-echo; in the evaluation of the evidence, the trial Court/Judge must give consideration to all the evidence adduced and elicited in the case as a whole, as it is not enough for the Court (as in this case) to say: “I believe” or “I do not believe this evidence.” In Oladehin v. Continental ile Mills Ltd (1978) 2 S.C. 23, the Supreme Court held that the above principle applies to both Criminal

and civil proceedings in the evaluation of evidence by trial Courts. See also Nwoke & Ors. v. Okere & Ors. (1994) 5 N.W.L.R. 159 at 175; where the Apex Court again laid it down that in the appraisal of the evidence of parties; a trial Judge must give reasons for believing or disbelieving a witness and that where the trial Court appropriately evaluates the evidence and appraises the facts, it is not the duty/business of an Appellate Court to substitute its own views for those of the trial Court.
However, where the trial Court fails in its duty to properly evaluate the evidence or properly appraise the facts before it based on the evidence, the Appellate Court is in as good a position to review the evidence and proceed to draw the necessary inferences from proved facts. See, Mogaji v. Odofin (1978) 4 S.C. 91 at 93 – 94; Olubode V. Salami (1985) 2 N.W.L.R. 282. Onwuchuruba V. Onwuchuruba (1993) 5 N.W.L.R. 185 at 199 – 200. In the case of Abdullahi v. The State (2008) 17 N.W.L.R. (1115) 203 at 219 paras. A – C; Mohammed, JSC, in his concurring judgment of the Supreme Court succinctly stated the position of the law thus:-
“The law is trite that

where a trial Court has drawn a conclusion from accepted or proved facts, and which facts do not prove the prosecution’s case, an Appellate Court has the duty to interfere with such findings because they are perverse. See Okolo v. Uzoka (1978) 4 S.C.N.L.R. 77; Fatoyinbo v. Williams (1956) S.C.N.L.R. 274; Adio v. The State (1986) 2 N.W.L.R. (Pt. 24) 581 and Dare Dada v. The State (1991) 8 N.W.L.R. (Pt. 208) 134 – 146.”

The above analysis of the position of the law as decided by the Apex Court sets the pace for our consideration of the submissions of learned Counsel for the parties on their respective issues for determination. In the course of his argument, the learned Counsel for the Appellant had drawn our attention to Page 89 lines 162 – 174 of the Records where the trial Judge held that:
“The issue of the deceased being epileptic does not avail not after the Medical Report said:
“I certify the cause of death in my opinion to be:
(1.) Respiratory failure via intra Abdominal haemorrhage from ruptured liver.
(2.) Assault with blunt object; as the basis for convicting the Appellant for manslaughter.?
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The learned Counsel

reiterated as earlier submitted on the first two issues that the Court below failed to advert its mind to the contradictory Statements of the PW3, Solomilia Nwosu; which also contradicted the Medical Report and the testimony of the Medical Doctor. We had earlier highlighted these conflicting testimonies as to the cause of death which we had resolved in favour of Appellant. Although the learned Director has also alluded to the evidence of PW3 at page 29 lines 27 – 30 and page 30 lines 31 – 35 under Cross-examination thus:
“Q. Did you know the Accused persons before the incident.
Ans. Yes.
Q. You said you made a statement to the Police. Therein did you tell the Police the truth.
Ans. Yes all I said here was what I told them.
Put. That none of Accused fought the deceased nor hit her with anything.
Ans. She hit her. If I did not see it I would not say it.”
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In my humble view, the prosecution still did not prove that it was the Appellant who hit the deceased and that it was the hitting of the Deceased on either her leg or head which the PW5 had disproved that caused the death of the said Deceased the said PW5/Medical Doctor having

found in the course of Autopsy that the deceased died from respiratory failure via Abdominal Haemorrhage from ruptured liver due to assault with blunt object. The said Doctor under cross-examination had admitted that there was neither any injury on the Deceased’s head or leg and that the blunt object could be as a result of a fall on the ground by the Deceased.

It has to be noted that even from the evaluation of the evidence by the trial Court at page 63 (The Ruling on the No case submission) lines 437-440 and 451-454) of the evidence of the PW3, the Court discovered that the PW3 contradicted herself but the learned trial Judge for whatever reason decided to convict the Appellant and I dare say that his conscience must have pricked him when he subsequently convicted and sentenced the Appellant to five years imprisonment but discharged her for having spent five years in prison custody. To buttress the point I am trying to make, the learned trial Judge, had made some posers thus:
“(1) The disturbing points to note are viz, PW3 not the accused persons engage in a fight with the deceased.
(2) The 2nd accused person hit her with a

pestle.
(3) At the Police she said the pestle landed on her head; in Court she said it landed on the leg (underlining mine for emphasis).
The questions I now ask myself relying on Section 286 CPL (Supra) are:
I. Does it now appear to me that a case is not made out against the Defendants sufficiently to require them to make a defence and therefore discharge them.
II. Is there no evidence to support an essential element of the offence charged?
III. Has the evidence adduced by the prosecution been so discredited as a result of cross-examination? and
IV. Is the evidence adduced by the prosecution so manifestly unreliable that no reasonable Tribunal can safely convict on it?” See page 64 lines 455 – 473.
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From the evidence of the PW3 on Oath and extra-judicial statement to the Police which the trial Judge highlighted in (3) above, it is patently clear that the questions posed in the Roman Numerals I – IV ought to be answered all in the affirmative that as it rightly appeared to him, no case was made against the Appellant to warrant her being called upon to defend herself and she ought to have been discharged and acquitted at the

close of the prosecution’s case as there was no evidence to support any of the essential elements of the offence of murder as charged. The evidence adduced by both the PW3 and PW5 who were the star witnesses for the prosecution had not only been discredited under cross-examination but they contradicted each other on the essential elements of the offence of murder and finally such evidence as adduced by the prosecution was so manifestly unreliable that no reasonable Tribunal could have safely convicted the Appellant on it because it left some yawning gaps and unexplained contradictions and inconsistencies (and not mere discrepancies) which went to the root of the prosecution’s case. See Tongo & Ors. v. Cop (2007) L.P.E.L.R. – 3225(S.C) per Onnoghen, JSC citing Queen v. Ogucha (1959) 4 FSC 64, Ikomi V. The State (1986) 3 N.W.L.R. (Pt. 28) 340 at 366; Onagoruwa v. The State (1993) 7 N.W.L.R. 49 – 80.

In Emedo & Ors. V. The State (2002) L.P.E.L.R – 1123 (S.C) per Uthman Mohammed page 9 paras. A – C held that –
“It is the judges duty however, when a submission of no case to answer is made to discharge an accused where the evidence adduced by the

prosecution does not disclose the necessary minimum evidence establishing the facts of the crime charged. In doing so, the Judge does not write a “Judgment.” It is not the Judge’s job to weigh and evaluate the evidence or decide who is telling the truth or who is lying …”
See further Ubanatu v. Cop (2000) L.P.E.L.R. – 3120 (S.C), (2010) 8 N.W.L.R. (Pt. 1197) 586 S.C. following Ibeziako v. Cop (1963) S.C.N.L.R. 99, Gabriel Aituma v. The State (2006) 10 N.W.L.R (Pt. 989) 452 at 473.

Rather than do the needful as long established by the above mentioned judicial authorities, the learned trial Judge proceeded in the most illogical and equivocal manner at pages 65 – 67 to overrule the learned Counsel for the Appellant on the no case submission. For instance after reproducing the evidence of the PW5 (the Medical Doctor) and his opinion in lines 480 – 482 of page 64 and under cross-examination that a stick, rod, stone, fist could cause it (the ruptured liver), the learned trial Judge at page 65 lines 486 – 495 goofed as follows:
“The Witness (PW5) told the Court that though he did not mention the blunt object that could have been used but

added that a fall can cause rupture of the liver. Looking at the above, a fall, PW.5 said could cause rupture of the liver. No doubt PW.3 both herein Court and in Exhibit 9? said that the deceased fell down after being hit. Both PWS1 and 2 said they found the deceased lying on the ground. They did not know who caused the fall PW.3 was assertive that the fall was as a result of the hit with the pestle by 2nd Accused. The cause of the fall had been established.”

With the greatest respect to the learned trial Judge, throughout Exhibit 10 (the extra-judicial statement of the PW3) and her evidence in Court, she never stated that the Deceased fell down because the Appellant hit her with a pestle, rather, what the PW3 stated at page 29 lines 15 – 19 of the Records was that when she got to the scene and saw the Accused persons and one other fighting with the Deceased she
“Raised an alarm as I saw the deceased lying on the ground and asked what was the matter but got no reply. The 2nd Accused then took a pestle and hit the deceased on her leg.”
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From the above testimony which is not different from her extra-judicial statement except that she

(PW3), claimed that as the deceased was lying on the ground, the Appellant hit the deceased on the head, it is clear that the PW3 did not say that it was the hitting of the deceased with the pestle by the Appellant that fell her. The Court therefore manufactured that piece of evidence that the PW3 stated that the fall was as a result of a hit with a pestle by the 2nd Accused thereby descending into the arena to fill the gaps in the prosecution’s case in order to convict the Appellant willy nilly.

The fact that even the Court was confused as to who committed the alleged offence as between the Appellant and Fidelia the wife of the 1st Accused and mother-in-law can be gleaned at page 65, lines 503 – 509 where the learned trial Judge remarked –
“She (PW3) also said there were three persons who engaged the deceased in a fight. She said the third was the daughter-in-law of the 1st accused. Why this woman was not charged alongside the 1st and 2nd Accused persons is a matter of concern to be left with the Police. They know why and I am not assuming the position of Christopher Columbus to set out in my boat in search of why. But I must remark that this

leaves much to be desired.”

Alternatively, we shall presume that the learned trial Judge was aware that the rightful person to be charged was Fidelia but the Police on the promptings of the complainants decided to charge the innocent Appellant for an offence she never committed. Hear the Appellant in her evidence-in-chief!
“On that 13/04/2yk in the morning I heard two persons quarrelling. As I came near I found it was Margaret and Fidelia Amaechi. Salomina PW3 also came to the scene. She asked to know why. The deceased said she made ridges and Fidelia said they were on the road. She asked them to stop quarrelling that my father-in-law and the other villagers will settle it for them. I asked my mother-in-law that we should go home as this was not enough to cause quarrel.
As we left, Margaret fell down and PW3 asked her what was wrong whether she (sic) fainting feat. She was crying. So myself and Fidelia Amaechi on hearing the cry came back to her and started helping her. So also other women farming who came to help her get up but she could not. So I went home and called 1st Accused to come and see what was happening. He followed me to the scene

and pleaded with the deceased to get up but she did not. The PW3 left to invite one Ben Nweke whom she told the story. This man told her to take her to the hospital. PW3 also went and invited the other villagers who advised the 1st Accused to take her to the hospital, which he refused to do asking whether anybody have beat her up, that they should ask her. I live in Lagos with my husband as I inquired from those around who is the Chairman of the village. I went to see him. His is Feb Ihiyun who came and advised them to take her to the hospital but they refused. I asked this Febi Iwujim what next to do. He said I should invite the Police to see the hospital issue.
I went to the Ahiazu but before I could return to the scene she had died. The villagers then ran riot looting cooking there properties and setting fire on the houses after looting they had gun, clubs etc. The Police then took me back to Ahiazu Police Station. The matter went to State C.I.D. I made a Statement to the Police Exhibit 4. I adopt it as part of my defence in this case.” See pages 67 – 68 lines 534 – 568 of the records.
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Under cross-examination the witness that stated she had lived

in Lagos for 20 years; she returned to the village about three days before the incident, she was used to visiting home regularly. She denied knowing the Deceased?s before the date of the incident nor did she know the distance between the Deceased house and theirs (the Accused persons). She admitted that she known people by the side and she was married to but never knew the PW3 before the incident. On further cross-examination she also denied ever seeing the deceased when she was passing through their (Appellant’s) house to the farm. She however, admitted that when she overheard the Deceased quarreling with her (Appellant’s mother-in-law) the Deceased was hail and hearty. When it was further put to her that the Deceased did not live very far from her (Appellant’s) house, she reiterated that She did not know the Deceased’s house, and neither the Deceased nor herself knew each other before the incident. Asked further whether on that day she (Appellant) and Fidelia Amaechi were milling palm fruits, she denied but stated that there was palm fruits barn in the village. On the question whether when she saw the body of the Deceased there was palm oil all over her

(Deceased), the witness/Appellant also denied same so did she deny knowing whether Deceased sustained injury during the incident.

When questioned whether when the Appellant got to the scene she saw ridges made by the Deceased scattered, she again answered that that morning the ridges were not scattered, although she admitted that the PW3 witnessed what happened. She further admitted on further cross-examination that the PW3 invited Bon Nweke and Bon told the PW3 to take the Deceased to the hospital. She also denied that the Deceased sustained injuries on her body. She reiterated that nobody beat up the Deceased and that she also did not know the Deceased nor see her before the incident so as to know whether the Deceased had fainting feat before. She finally denied that they (herself) and mother-in-law jointly beat up the Deceased.

From the answers to the cross-examination it could be seen that the Appellant’s credibility was not shaken.

The DW2 Justus Iheazu the father-in-law of the Appellant also denied their fighting and beating up the Deceased on the date of the incident in question or any other day nor did any person hit the Deceased on

the leg or head. He testified that the Deceased and themselves were in good terms and on that 13/4/2000 he came back from the hospital and while lying in his house, the Appellant came to tell him that she heard a cry from the back of their house and as good neighbours he went to the scene and there saw the Deceased lying on the ground fainting and shaking and other women around were trying to lift her up. He then went home but the men around pursued him and told him to take the Deceased to the Hospital. He queried why they should tell him that when he never engaged the Deceased in a fight. They started to beat him and dragged him along their place after setting fire on his house and kitchen. They (mob) would have killed him but for the intervention of the Police who rescued him and he made a statement to them which he also adopted. See pages 70 and 71 lines 637 and 655 of the records.

Under cross-examination by learned State Counsel at page 7 lines 673:
?Q. You know the Deceased very well? the DW2 answered in line 674 of the
Records. ?Yes she was epileptic?.

At page 72 lines 686 – 693 the following questions and answers

session continued on the issue of whether the Deceased was epileptic thus:
?Q. ?Now (How?) did you know that the Deceased was epileptic.
Ans. We have been boundary neighbours for years.
?Put. Epileptic (Epilepsy?) is not a deadly disease and not capable of killing the Deceased.
?Q. That there were some injuries found on the Deceased’s body not connected with epilepsy.
?Ans. The injuries if there were did not come from me.?

I agree completely with the learned Counsel for the Appellant’s submission that the lower Court was wrong to have held that the issue of the Deceased being epileptic did not avail the Appellant after the Medical Report had stated that the Doctor/PW5 certified that the cause of death in his opinion was respiratory failure due to intra abdominal haemorrhage from ruptured liver as a result of assault with a blunt object.
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Needless to state that the Medical Report had vindicated the Appellant and the DW2’s evidence that the Deceased was epileptic was not challenged. In the absence of evidence that the Deceased was hit with a pestle either on the head or leg which the only eye

witness (PW3) claimed as the part of the Deceased’s body that the Appellant must have inflicted the injury that caused the death of the Deceased and since the said Medical Expert has also admitted that a fall which could have been induced by epileptic feat could have caused the rupture, the Court below had no other alternative than to discharge the Appellant along with the DW2/1st Accused for having no cases to answer.

The Court below could have adverted its mind to the conflicting evidence of the prosecution witnesses which, kept side by side with the unchallenged defence of Appellant, as given by the DW2 who knew the Deceased to be epileptic, should have cast doubt in the case of the prosecution thus warranting the discharge of the Appellant. As was rightly submitted by the learned Counsel for the Appellant on the authority of Onuoha v. The State (1989) 2 N.W.L.R. (Pt. 101) 23 at 35; that there is no magic in the words ‘I believe; or ‘I don’t believe’ as these words will not turn apparent falsehood into truth and vice versa; more so, when belief and disbelief should really represent a fair and impartial appraisal of all the facts and surrounding

circumstances of any given case and if as in this case, the learned trial Judge chose to believe an impossible or improbable story, this Court in its appellate jurisdiction has a duty to reverse any decision based on such belief. Emine v. The State (1991) 7 N.W.L.R. (Pt. 204) 480 at 485 refers.

There is also no doubt as was rightly argued by the learned Counsel for the Appellant while relying on Nwankwo v. The State (supra) at page 639 and all other authorities earlier cited and relied upon by me, that it was the primary duty of the prosecution throughout the trial of the Appellant to have proved its case against her beyond reasonable doubt and if the prosecution fails to discharge this onerous burden which is cast upon it, the failure of the Appellant to suggest some other cause of death (which is not the case here as the DW2 has given unchallenged evidence that Deceased suffered from epileptic feat); would not have salvaged the case for the prosecution.

In this wise, the Court below ought to have rejected the totality of the evidence of the prosecution witnesses (the PW3 and PW5) and not pick and choose which to believe and not to believe.
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The

Supreme Court of Law, had in some landmark decision like Joshua v. The Queen (1964) 1 All N.L.R. 1 at 3 – 4; The State v. Dominic Okolo & 3 Ors. (1974) 2 S.C. 73 at 80 – 81 (1974) 1 All N.L.R. 466 at 473; Onubogu v. The State (1974) 9 S.C. 1 at 17-18 and 20; Arehia & Anor. v. The State (1982) 4 S.C. 78 at 88 ? 89; per Uwais, JSC and Albert Ike v. The State (1985) 4 S.C. (Pt. 2) 30 at 56; per Karibi-Whyte, JSC; following English cases like R. V. Golder (1960) 1 W.L.R. 1169 at 1179 per Lord Parker C. J., R. V. Fraser L. C. & Anor. (1957) 40 Cr. App. R. 160 at 163 per Lord Goddard, and Leivesely v. Brown & Co. (1990) 25 T.L.R. 745 stated the principles that should guide and guard trial Courts where there are contradictions and inconsistencies in the previous statement of a witness to the Police and his evidence in Court.?
These principles come to this: that where such a witness is shown to have made a previous statement inconsistent with her evidence at the trial, the correct approach at law is that the Court should not merely be directed that the evidence given at the trial should be regarded as unreliable but should also be directed

that the previous statement whether sworn or unsworn does not constitute evidence on which the Court would act.

Indeed the legendary Oputa, JSC in the locus classicus of Christopher Onubogu and Anor V. The State (supra) ably cited by the learned Counsel for the Appellant, succinctly posited on this vexed issue at pages 17 – 18 and 20 of the Report earlier cited, on what transpired in the Court below, thus:
“We are also of the view that where one witness called by the prosecution in a criminal case contradicts another witness on a material point, the prosecution ought to lay some foundation, such as showing that the witness is hostile, before they can ask the Court to reject the testimony of one witness and accept that of the other witness in preference for the evidence of the discredited witness. It is not competent for the prosecution which called them to pick and choose between them. They cannot, without showing clearly that one is a hostile witness discredit one and accredit the other.”
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In the above case the Supreme Court was confronted with a situation where the PW4 a witness against the Appellants charged with malicious damage contrary to

Section 451 of the Criminal Code, East Central State before the trial Court gave evidence which was diametrically in conflict with his extra judicial statement to the Police on a material point just like the case at hand and the Supreme Court, so decided per Oputa, JSC as quoted above.
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The learned Director for the Respondent has submitted in this respect that there were no contradictions in the testimonies of the prosecution witnesses and that the PW3 was not confronted with her extra-judicial statement to contradict or discredit her and therefore her evidence of beating the Deceased with a stick and fighting her remained unchallenged. For this submission he had relied on Section 232 of the Evidence Act which provides that for purposes of contradicting a witness like the PW3, the Defence has to comply with getting the said witness to identify her extra-judicial statement to the Police and draw her attention to the relevant portions of conflicts in the statement to the Police and her testimony in Court before the statement will then be tendered as Exhibit. According to him having not complied with the above provisions, the Appellant did not show that the

PW3 contradicted herself. He has also submitted that the PW3 was not cross-examined on material issues.

With the greatest respect to the learned Director, the conflict in the material particulars of the charge in the Statement to the Police and the evidence on Oath by the PW3 was apparent when cross-examined as well as the evidence of the PW4 through whom the PW3’s Statement Exhibit 10 was tendered. For instance, at page 29 of the Record in lines 25, 29 and 30 thereof, the PW3 had stated that she made a Statement to the Police at Owerri and that therein she did tell the Police the truth. Whereas the PW3 had told the Court in his evidence in-chief that: “the 2nd Accused then took a pestle and hit the deceased on her leg.” the said Exhibit 10 (her statement to the Police) at page 109 lines 23 – 26 stated:
“During the process, the wife of Justus Iheazu later known as Anna Amaechi hit the late Margaret on the head with palm-fruit pounding pestle for which she was unconscious as she fell down.”

The PW4 on the other hand who recorded the said Exhibit 10 as the Investigating Police Officer when cross-examined at Page 34 of Records Lines 166 – 169 thus

stated:
“Q. You recorded the statement of PW3.
Ans. Yes my Lord.
Q. She told you the deceased was hit on the head.
Ans. Yes my Lord.”

Even the learned trial Judge at pages 56 lines 215 and 216 to 57 lines 218 – 224 chronicled this apparent inconsistency and contradictory evidence of the PW3 (which he subsequently tried to cover up) in the course of appraising the evidence for the prosecution for the purpose of Ruling on the no case submission that:
“The PW3 Salomina Nwosu the only eye witness to the alleged incident in her statement to the Police Exhibit 19 said ‘During the process the wife of Justus Iheazu (1st Accused later known as Anna Amaechi) hit Margaret Nwosu on the head with palm fruit pounding pestle for which she was unconscious and she fell down. In her testimony in-chief on 9/10/2001 she said ‘The 2nd accused took up a pestle and hit the deceased on her leg.?

When challenged under cross-examination that Accused persons never fought the deceased nor hit the deceased on the leg, she answered thus:
?’They hit her on the leg. When challenged under cross-examination that Accused persons never fought

the deceased nor hit the deceased on the leg. Of course she never talked about hitting the deceased on the head.?

To worsen matters the evidence of the PW5 which had earlier on been reproduced as well as the autopsy Report were in utter conflict with the above testimonies of the Police and PW3 on oath as well as the said PW3’s extra-judicial statement as the Court also chronicled from page 57 lines 225 – 230 of the Records. Neither did the Director re-examine the PW4 to clear the contradiction in even his statement on oath and that of the PW3 on what caused the death of the Deceased whether it was the hitting of her on the head or leg by the Appellant. Again, the learned Director or Counsel for the prosecution did not treat either the Police or PW3 as hostile witnesses as directed by the cases earlier cited particularly Onubogu V. The State (Supra).
?
Thus, even if the attention of the PW3 had been not drawn to areas of conflicts in her statement to the Police and testimony in Court, the evidence of the PW4 and PW5 had discredited her (PW3’s) evidence. In the light of the above Uwais, JSC (as he then was), in the case Christopher Arehia &

Anor. V. The State (supra) had admonished trial Judges while citing the principle laid down in Onubogu V. The State (supra) that in circumstances as we have found ourselves where there are contradictions in the testimonies on material fact and the contradictions are not explained by the prosecution (as in the instant case) through any of the witnesses, the trial Judge should not speculate on or proffer the explanation for such contradictions and thereby pick and choose from the evidence of the prosecution witnesses that which to believe and/or misbehave. Boy Muka & Ors. v. The State (1982) 4 S.C. 78 at 88 – 89 refers.

Finally, to lay to rest the contentions of the learned Director for the Respondent while relying on Adekoya v. The State (2012) 2 M.S.C.J. 1 at 22 paras. F – A to urge us to reject the contention by the Appellant that the evidence of the PW5 (the Medical Doctor) is inconsistent with that of the PW3 which submission I reject in toto, based on the evidence on records; I must not fail to allude to the direction of Karibi-Whyte, JSC who upon being confronted with a similar scenario as we have here, also in line with Onubogu V. The State

(supra) posited that:
?It is well settled that where prosecution witnesses have given conflicting versions of material facts in issue, the trial Judge before whom such evidence was led must make specific findings on the point, and in doing so must give reasons for rejecting one version and accepting the other. Hence, unless this is done it will be unsafe for the Court to rely on any of the evidence before it. The proper course in the circumstances is to reject both versions of the evidence as unreliable and unsafe for the purpose of determining the material issue before the Court.?

I shall discountenance the submission of the learned Director that the evidence of the PW3 was not in conflict with the evidence of the PW5 that the Deceased received injury on the abdomen which led to the rupture of the Deceased?s liver. There is no doubt that the Supreme Court had cautioned that it is not every discrepancy or inconsistency that will affect the substance of a Criminal charge that has been proved by credible evidence. Furthermore, it is also trite on the authority of Esangbedo V. The State (1988) 1 A.C.L.R. 109 at 140; that the Supreme

Court had warned that where witnesses to one incident reproduce the same or uniform account of an incident, the danger is that their evidence has been tailored and doctored since in actual life, there is bound to be minor variations in the account of a truthful witness, as rightly submitted by the learned Director.

However, from the totality of the facts of this case one cannot sincerely say that the prosecution adduced credible evidence in proof of the charge against the Appellant where there are patent conflicts within the evidence of the PW3 paras apart from the utter conflicts in her evidence with those of the PW4 and the PW5 on the material issue as to whether the Appellant caused the death of Margaret Nwosu by hitting her on the head with a pestle thereby felling her to unconsciousness and whether it was after the Deceased fell that Appellant hit her on the leg and caused her death which in any case had been debunked by the testimony of the said PW5 (the Medical Doctor) and his Medical Report.
?
On the whole, the Court below was conscious of the contradictions but decided to speculate and proffer explanations for the prosecution by descending

into the arena to fish for non-existent evidence as I had earlier highlighted. Besides, the Court below failed to give reasons for believing such discredited evidence of the witnesses for the prosecution which contradictions, inconsistencies and even material discrepancies had not been explained away.

For relying on such evidence in convicting and sentencing the Appellant for manslaughter even if she was eventually discharged from serving the five years sentence imposed on her, grave miscarriage of justice was occasioned the Appellant by the perverse Judgment of the learned Hon. Justice Ngozi Opara of the Mbano/Etiti Judicial Division of the High Court of Imo State of Nigeria, delivered on 8th November, 2005.

The Judgment can therefore not stand. I therefore resolve this last Issue in favour of the Appellant and hold that her Appeal is meritorious and hereby succeeds. The said Judgment and conviction and sentence imposed on the Appellant are hereby set aside and Appellant discharged and acquitted.

Other Citations: (2016)LCN/8750(CA)

Ann Amaechi V. The State (2016) LLJR-CA

Ann Amaechi V. The State (2016)

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