Christopher N. Onubogu & Anor V. The State (1974)
LawGlobal-Hub Lead Judgment Report
FATAYI-WILLIAMS, J.S.C.
At the Onitsha High Court on 22nd April, 1974, the appellants were jointly charged with and convicted of the offence of malicious damage to property contrary to section 451 of the Criminal Code of the East-Central State and sentenced to a year’s imprisonment with hard labour. The first appellant (Christopher Onubogu) was also convicted in the same court on the same date of the offence of unlawful wounding contrary to section 338(a) of the said Code and sentenced to two years’ imprisonment with hard labour. They both appealed to this court against their convictions. At the conclusion of the hearing on 15th August, 1974, we allowed the appeals and set aside the convictions and sentences passed on them. We now give our reasons for so doing.
The facts as found by the learned trial judge may be summarized as follows. On the day of the incident, Bertram Onubogu (2nd appellant) invited the complainant, Lawrence Okani (P.W.4) for a discussion over a land dispute in his house. Benson Okafor (P.W.5) who is a cousin of the complainant and Christopher Onubogu (1st appellant) were also present.
During the discussion, Lawrence Okani said that he had not met the first appellant before and did not know that he is a member of the Onubogu family. The first appellant did not take kindly to this remark, and after some altercation, he (the first appellant) left the sitting room where they were all sitting and went upstairs. Later, at the instance of Lawrence Okani, the second appellant sent for the first appellant and asked him to rejoin them and participate in the discussion. Still nursing the grudge he had against Lawrence Okani for not recognising him as a member of the Onubogu family, the first appellant refused and started to shout at Lawrence Okani and saying that he did not understand how Okani could come into their family compound and observed that he (Lawrence Okani) did not know him. On hearing this, Lawrence Okani got up to apologise, but before he could do so, the first appellant slapped him twice. Lawrence Okani got annoyed and gripped him. They both then started to fight and Lawrence Okani knocked the first appellant down and held him on the floor. While still holding down the first appellant, the second appellant and his wife hit Lawrence Okani on the back with a drink’s stool which consequently broke into pieces. On seeing this, Okafor (P.W.5) rushed to Lawrence Okani and pulled him away from the first appellant who had by then bit Lawrence Okani on the upper left side of the chest in self-defence.
According to Lawrence Okani, the first appellant rushed into a room and brought a spear which he threw at him (Lawrence Okani). The spear missed its target and landed on the ground. Both Okafor and Lawrence Okani then ran out of the room with the first appellant in hot pursuit On getting out of the house, Lawrence Okani started to run round his car which he had earlier parked outside the house at the time he went in for the discussion. The first appellant threw the spear again and this time it hit Lawrence Okani on the ear. This resulted in a head wound which bled profusely. On seeing the wound, the first appellant took the spear and went back into the house.
At this juncture, the second appellant asked the first appellant to go back and puncture the tyres of Lawrence Okani’s car so that he could not escape.
The first appellant then punctured three of the tyres with the spear and also smashed the windscreen of the car. When he saw that the ftrst appellant had damaged the tyres and windscreen of his car, Lawrence Okani came out from the nearby bush where he had been hiding. On seeing him again, the ftrst appellant hurled the spear (Ex. D.) at him for the third time. Lawrence Okani described what happened thereafter as follows:
“I dodged and ran to where the spear fell, picked it up and 1st and 2nd accused took to their heels. I look at this spear. It was the spear I picked up at Onubogu’s family compound used by 1st accused. (NOTE:-witness identiftes exhibit D).
When first accused was puncturing the tyres I shouted to Benson Okafor to go for the Police. I then went to a part of the compound with a small cement floor. I sat down there until some people came and collected me and took me to the Ogidi Police.”
Under cross-examination, Lawrence Okani explained what transpired thereafter as follows:
“From Ogidi Police Station, I travelled to Onitsha Police Station. I travelled in a motor car I never travelled on a motor cycle. Yes, if P.W.2 said he took me to Ogidi Police on the back of his motor cycle, he must be lying. P.W.2 did not take me on his motor cycle to the Onitsha Police Station. When I took hold of Exhibit D-the spear-1st and 2nd accused ran away. I then went and sat down on a concrete floor in the compound. I had Exhibit D with me when my friend and P.W.2 arrived. When I went to Ogidi Police my friends took Exhibit D. Exhibit D was taken from Ogidi Police to Onitsha Police in the car in which I travelled. I was present when Exhibit D was handed to P.W.3. In fact I handed it over to P.W.3. That day P.W.3 and I visited the Onubogu’s compound. When we visited the scene, I had Exhibit D with me. P.W.3 and I visited the scene before leaving with me. P. W.2 was not truthful if he said P. W.3 picked Exhibit D in Onubogu’s compound.
As against the above testimony concerning the spear, Edwin Okani (2nd P.W.) who is the brother of the complainant Lawrence Okani (4th P.W.) testifted as follows:
“I first reported to Onitsha Police before proceeding to hospital. I was given a police constable who accompanied us to hospital. After treatment the constable followed to 1st accused house. Police constable collected the spear (Id.1). I showed him my broken car, he saw the three tyres deflated by the accused. Police removed the three punctured tyres, the spear, the clothes soaked with blood which my brother pulled off and gave to the police.”
(the italics are ours).
The Police Constable (P.W.3) who was supposed to have collected the spear testified about this as follows:
At about 16.10 hours P.W.2 and complainant, Lawrence Okani, were handed over to me at the Charge Office. P. W.2 and complainant, Lawrence Okani, brought with them a spear and bloodstained long sleeved shirt.”
The Police Constable then tendered the spear (earlier identified by P.W.2 as Id. 1) in evidence as Exhibit D.
Lawrence Okani (P.WA), during the course of his testimony, was also cross-examined at length as to the whereabouts of the spear (Ex. D) at the time of the alleged attack on him and he testified on this point as follows:
“I made a statement to the police and signed it. Yes, I said the 1st and 2nd accused went away with one Lawrence Agulefo to a room and conferred 1st accused got the spear from another room…………
1st accused ran about fifteen feet to fetch the spear.”
After this, the following specific questions were put to Lawrence Okani about the spear:- .
“Put: Did you in your statement to the police say that 1st accused ran upstairs and brought a spear
Witness: I cannot remember. I would like to see my statement to the Police to refresh my memory.”
After learned counsel for the defence had told the court that he had no objection to the witness refreshing his memory from the statement he had earlier made to the police, the court allowed Lawrence Okani to refresh his memory after which he answered further as follows:
“Yes. I said in my statement to the Police that ‘I became totally embarrassed; he went upstairs and brought a spear’ .
Put:Ex. D. was provided by P.W.2 for the purpose of this case. Ans: It is not true.”
Although Lawrence Okani, in the answers quoted above, said that the spear was brought from the ftrst floor of the house where the ftght took place, Benson Okafor (P.W.5), who said he was present at the time, did not conftrm this. On the contrary, he (P.W.5) stated that the 1st appellant ran into a room and later “came out of the room with a spear.”
The first picture, as given by the P. W.4, Lawrence Okani, in his evidence in-chief to which we have referred earlier, was that the throwing of the spear started inside the room where the meeting was held and that the ftrst throw missed him he then ran outside, and that it was while he was outside that the 1st appellant hit him with the spear on the second throw. The following question and the answer given by him (P.W.4) while still under cross-examination, however, seems to give a different and rather confused picture. The question and answer read:
“Put: Did you say to the Police in your statement that the first time 1st accused threw the spear at you, you dodged but unfortunately the spear hit your head
Ans. I said so.
Put: Did you also say to the Police that you continued running and first accused used the spear on your car
Ans: (After refreshing his memory)-I said I was running when first accused started puncturing my tyres with the spear.”
The defence of the appellants, as put in the cross-examination of witnesses called by the prosecution, was that the wound sustained by Lawrence Okani on the head was caused by some iron rods which jotted out of an uncompleted staircase in the house and that the spear was only produced for the purpose of the proceedings. When Mbamalu (P.W.3), the police constable who visited the house not long after the fight, was asked about the rods, he replied:
“I did not see rods sticking out from the steps. The edges or sides of the steps have not been plastered.”
Lawrence Okani also replied to the same question as follows:
“I do not know how far from the staircase the struggle took place. I observed that the staircase had no hand rail. I did not observed that rods used to reinforce the steps were sticking out.”
Benjamin Okafor (P.W.5) who was also present in the house when the fight took place, was also asked the same question by learned counsel for the appellants. He also replied as follows:
“I saw the staircase in the sitting room. It has no hand rail. The staircase is made of concrete. I did not see rods sticking from the ends or edges of the steps.”
In their defence on oath, the two appellants denied all the charges and disputed the evidence given in support of each charge. They admitted the visit of Lawrence Okani and P.W.5 to their house but denied that it was the second appellant who invited them. They said that it was Lawrence Okani who provoked the fight. They also denied that any spear was used during the fight. As we had earlier pointed out the line of the counsel’s cross-examination seemed to suggest that the the head wound sustained by Lawrence Okani could have been caused by rods sticking out from the rough edges of the uncompleted staircase. Finally, they denied that the second appellant hit Lawrence Okani with a stool and also stated that they did not puncture the three tyres or smash the rear windscreen of Lawrence Okani’s car.
In a reserved judgement, the learned trial judge dealt at length with the point made by the defence that there were iron rods sticking out of the uncompleted staircase and made the following findings of fact:
“I do not believe 1st accused when he said that he threw his leg across Lawrence Okani’s way (P.W.4) and he (P.W.4) stumbled over it and fell against the staircase. There are rods at the edge of the uncompleted rough staircase. I find as a fact that P.W.4 floored 1st accused in the parlour or sitting room away from the staircase. I do not accept the submission of the probability of the head wound sustained by P. W.4 being caused by the rods.’
Before accepting the version of the incident as given by the prosecution in preference to the defence put forward by the appellants, the learned judge observed as follows:
“The prosecution called six witnesses. I must say at once that P. W.2 was a worthless and miserable liar. There is no doubt he exposed himself to possible perjury assuming he lied on material issues. P.W.1, the medical officer, impressed me only as a poor witness. As an expert I lost faith in his testimony……..
The eye-witness account of P.W.4,P.W.5 and P.W.6 impressed me immeasurably.
They are so graphic and detailed that no useful purpose could be served reproducing each side in this judgement but enough would be said of them in dealing with submissions and making findings of fact.”
After making his findings of fact based on the testimony of the fourth,fifth and sixth prosecution witnesses, the learned trial judge then proceeded to consider the submissions of learned counsel for the defence that there were serious contradictions in the prosecution’s case which renders the evidence adduced by them unreliable and that a valid conviction could not proceed from such evidence. He then observed as follows:
“In dealing with any conflict or contradiction in the prosecution case the court considers whether the conflict or contradiction affects material points or important issues; if it does, it would be most likely be fatal; if it does not, the court may disregard it and would be fully entitled to believe a witness. P.W.2 whose evidence puts the evidence of P.W.3 and 4 in conflict gave no evidence whatsoever with respect to the commission of the offence charged. His evidence cannot therefore be material with reference to whether or not the spear was used by 1 st accused, which is the point in issue.”
The learned trial judge then dealt with the inconsistencies, spotlighted by learned counsel for the defence, in the testimony of P.W.4 and P.W.5 as to where the 1st appellant got the spear from. He then proceeded, of his own volition, to offer the explanation for what appears to us to be a serious conflict in the evidence of Lawrence Okani (P.W.4), that “P.W.4 made his statement to the Police within hours of his head wound suffering as he did from great pain and loss of much blood from profuse bleeding.” He thereafter convicted the two appellants as we indicated earlier.
Only one point was taken by the learned counsel for the appellants in the appeal against the convictions. This point is that the learned trial judge erred in law and on the facts in holding that the prosecution had established its case beyond reasonable doubt when the evidence of Lawrence Okani (P.W4) and other prosecution witnesses is clearly unreliable, unconvincing and fall short of the standard required to establish prof of guilt in a criminal trial.
In his arguments in support of this point, learned counsel for the appellants referred to the conflict between the testimony of Edwin Okani (P.W.2), the brother of the complainant who said that he was present when the Police Constable (p.W.3) collected the spear (Ex. D) from the house of the 1st appellant and that of P.W.3 who said it was P.W.2 and the complainant (Lawrence Okani P.W4) who brought the spear to him at the Ogidi Police Station.
Learned counsel also referred to the inconsistency in the evidence of Lawrence Okani as to where the spear was thrown at him. In his evidencein-chief, Lawrence Okani (P.W4) said that the first throw which missed him was inside the house, and it was the second throw outside the house which hit him on the head. Under cross-examination, he changed his story by admitting that he informed the Police in his statement to them that the first time the first appellant threw the spear at him, it hit him on the head thus implying that the first accurate throw was in the house. As against this, there is also evidence of Benson Okafor (P.W5) that the spear was thrown twice outside and that it was the second throw aimed at the chest of Lawrence Okani which hit Lawrence Okani on the head.
There was also the issue as to whence the spear was procured. Learned counsel again referred to the evidence of Lawrence Okani where he said the spear was brought form a room about fifteen feet from where they were and that to get to that room, the first appellant ran but avoided “knocking down the drinking stools in the sitting room. ”Learned counsel then compared this with Lawrence Okani’s admission under cross-examination that he told Police in his written statement that the first appellant “went upstairs and brought a spear.” We were also referred to the part of the testimony of P.W.5 where he said as follows:
“1st accused ran into a room. I then held P.W.A by the sleeve of his shirt saying we should go away because it appears this was a planned thing. As I said this, 1st accused carne out of the room with a spear.”
Learned counsel then submitted that, in view of this glaring conflict, it was not proved, beyond reasonable doubt that the spear, allegedly used in the attack on Lawrence Okani, was obtained form the house of the 1st appellant on that day.
Learned counsel also contended that although the denials of the various witnesses for the prosecution that there were iron rods at the edge of the uncompleted staircase were found to be untrue by the learned trial judge as a result of the visit made by the court to the locus in quo, the learned trial judge, considering the circumstances of the case and the unreasonableness of the denials, should have given greater consideration to the defence of the appellants that the injury to the head of the first appellant could have been caused by one of the rods jotting out of the staircase.
Finally, learned counsel submitted that, in view of all these contradictions about the whereabouts of the spear on the day in question, and about how, when, and in what manner it was used, not to mention how it got into the hands of the Police, grave doubts should have been raised in the mind of the learned trial judge as to whether the spear was used to wound P.W.4 or damage the vehicle during the fight; and that since these contradictions are very material to the case of the prosecution, the learned trial judge should have given the appellants the benefit of the doubt and should have found them not guilty of the offences with which they were charged.
In reply, learned counsel for the respondent conceded that there were contradictions and inconsistencies in the evidence adduced by the witnesses called by the prosecution. He also conceded that it is not the responsibility of a trial judge to adduce reasons as to why witnesses who testify before him give inconsistent evidence. Learned counsel then submitted that the learned trial judge was nevertheless, correct in holding that the conflicting evidence was not fundamental to the case put forward by the prosecution and in choosing which evidence to believe and which to reject out of the totality of the evidence given by the witnesses for the prosecution. Learned counsel finally submitted that since he accepted some of the evidence on which conviction could b justified, the learned trial judge was right in convicting the appellants on such evidence.
We thought that the submissions of learned counsel for the appellants are well founded. In our view, where a witness, such as the complainant (P.W.4) in the case in hand has made a statement before trial which is inconsistent with the evidence he gives in court, the court, provided that no cogent reasons are given for the inconsistency, should regard his evidence as unreliable. While on this point, we think it is pertinent to refer to the observation of Lord Goddard L.C.J., in R. v. Fraser & anor (1957) 40 Cr. App. R. 160 at p. 163 which reads:
“If the prosecution have information in their possession which shows that the evidence which a witness called for the prosecution has given is in flat contradiction of a previous statement which he has made and so entitles the prosecution to cross-examine, they should apply for leave to cross-examine and not leave it to the judge to do so, because it is counsel’s duty to cross examine in such circumstances. If he has not done so, the judge has to do it. That is not right, because it may look as if the judge is taking sides, but he cannot help intervening in such circumstances, because it is his duty to see that justice is done.”
We wish only to add that the learned trial judge in the case in hand did not even cross-examine the complainant (P.W.4) as to why he had contradicted the written statement which he had previously made to the police. He merely took the inexplicable course of supplying an explanation himself.
Again, there is the decision of the court in the case of The Queen v. Joshua (1964) 1 All N.L.R. p. 1 at page 3 where we referred to the decision in R, v. Golder (1960) 1 W.L.R. 1169 with approval and also observed that where a witness has made previous statements inconsistent with the evidence given at the trial, the coun has been slow to act on the evidence of such a witness. In our decision in the case of The Queen v. Joshua, we referred, in particular to the observation of Lord Parker, L.C.J., in his judgement in R, v. Golder (supra) on the point. The observation, which is at p.1172 of the said judgement, reads:
“In the judgment of this court, when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous statements, whether sworn or unsworn, do not constitute evidence upon which they can act.”
It only remains for us to say that the learned trial judge in the instant case was clearly in error in stating, as he did in his judgment, that this coun did not, in the case of The Queen v. Joshua, say or hold the view that such inconsistency makes our evidence always unreliable. That is exactly what our decision in that case was intended to convey and did convey.
We are also of the view that where one witness called by the prosecution in a criminal case contradicts another prosecution 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 another 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. (See Summer and Leivesley v. Brown & Co. (1909) 25 T.L.R. 745). We also think that, even if the inconsistency in the testimony of the two witnesses can be explained, it is not the function of the trial judge, as was the case here, to provide the explanation. One of the witnesses should furnish the explanation and thus give the defence the opportunity of testing, by cross-examination, the validity of the proffered explanation.
In the present case, there is no doubt that the spear (Ex. D)….the weapon alleged to have been used both in the assault on P.W.4 and in causing the damage to the car-is a most vital piece of evidence. The evidence as to (a) where the said spear was procured from, (b) whether the injury inflicted on the head of P.W.A was caused by it, and (c) whether it was the weapon used to damage the tyres and windscreen of the car, or as. to how it eventually reached the Ogidi Police Station, are very crucial to the case put forward by the prosecution. As a matter of fact, it seems to us that the whole case for the prosecution depended on whether there is cogent and credible evidence as to the existence and use of the spear either in or outside of the house of the appellants at the time of the fight.
Out of the six witnesses called by the prosecution, the learned trial judge himself rejected the testimony of the doctor (P.W.1) as to the injury sustained by Lawrence Okani. He also dismissed the evidence of Edwin Okani (P.W.2 and brother of the complainant) as that of “a worthless and miserable liar”. On close examination of their performances during the trial, we also came to the conclusion that the evidence of P.W.3, P.W.4 and P.W.5, could not be relied upon. This left only the evidence of P.W.6 which, in the particular circumstances of this case, could not be considered reliable enough to sustain the conviction of the appellants. It is, indeed, significant that throughout his testimony before the trial judge, the complainant (P.W.A) did not once mention P.W.6 as being present during the fight he had with the appellants.
Before we have finished with this appeal, we desire to make an imponant observation with regard to the procedure adopted by Benram Onobogu, the second appellant, when he testified on oath in his defence. The relevant portion of his evidence-in-chief reads:
“I made a statement to the Police in connection with the incident. I adopt the statement as part of my defence to these charges-Ex. K.”
This procedure to say the least, is highly irregular and the learned trial judge should not have allowed the second appellant to testify in his defence in this manner. He should have been directed to tell his story in full even if that meant repeating the contents of his written statement to the Police in full. In R. v. ALLI (1949) 12 WACA 432 at p. 434, Verity, C.J., when delivering the judgement of the court, had this to say about this procedure:
“Although we are not unaware that this procedure is at times followed, for the purpose, we presume, of saving time, we do not think that it can be too strongly depreciated. It not only deprives the trial judge of hearing the witness tell his story, either by way of narration or in answer to questions put by counsel, and of observing his demeanour and the of observing him is that at which he is under cross-examination. It is, in our view, impossible for the trial judge to form a just opinion of the merits of a witness in circumstances in which the examination-in-chief amounts to no ,more than the reading of a statement”
It is only pertinent to add that it is on this reprehensible procedure that the learned trial judge, in the case in hand, based his determination as to the guilt of the second appellant of the offence with which he was charged. We fully endorse the views of Verity, C.J., on the said procedure which we regard as most irregular, and it is hoped that it will be avoided in all trial courts in future.
Having given the arguments adduced before us the most careful consideration, we were of the view, because of all the contradictions and inconsistencies, and also of the procedure adopted in taking the evidence of the second appellant, that the evidence on which the learned trial judge based his belief that the spear was in the house of the appellants on the day of the fight and that it was used to attack P.W.A and also to damage the tyres of his car, fell short of the standard required to establish the guilt of the appellants.
We, therefore thought that for that reason alone, the learned trial judge should not have given them the benefit of the doubt and should not have convicted them as he had done. We consequently felt that the verdict should not be allowed to stand. We accordingly allowed their appeals at the hearing on 15th August, 1974, set aside the convictions and sentences and acquitted and discharged both appellants.
Other Citation: (1974) LCN/1904(SC)
