Felix Morka & Ors V. The State (1998)

LawGlobal-Hub Lead Judgment Report

ROWLAND, J.C.A. 

This is an appeal against the judgment of the Delta State High Court holden at Asaba presided over by Ogbodu, J., in charge No. AG/5C/90. The appellants were charged with the offences of conspiracy and arson. In his judgment delivered on the 6th day of December, 1993, the appellants were convicted of the offences with which they were charged but they were cautioned and discharged.

The case for the prosecution was that on 27th April, 1988, the appellants and two others came into the house of one Monica Nwanu were armed with different weapons to attack her. They attempted to drag her to the house of a native doctor to answer for a charge of witchcraft.

As she was being assaulted, some of the attackers were damaging her properties.

One of her sons called Peter managed to rescue her and escaped with her to the Police Station to report.

When they came back to their house with some Policemen they found that a part of their house and all their household goods had been burnt. This led to the arrest and subsequent charge of the appellants to court.

The appellants’ case was a total denial of the charges against them. They individually set up alibis in their statement to the Police. The defence also stated that P.W.2 Peter Nwanuwere, had by a report, Exhibit ‘P’ in the proceedings complained against the 2nd accused Catherine Marko, one Augustine Morka who was never charged and ”many others unknown” for coming to their house (house of P.W.2 and P.W.1 his mother) on the 27th of April, 1988 and destroyed doors and windows. The complaint further alleged that in the process, one of them presumably one of the “many others unknown” cut P.W.1 (P.W.2’s mother) with a machet. At the time of the complaint although the complainant knew the names of the 1st and 3rd accused persons who are indeed next door neighbours and children of the 2nd accused, the complainant did not mention their names nor make any allegations against them.

At the trial P.W.1 and P.W.2 testified to the effect that they were attacked by 1st, 2nd and 3rd accused persons and other known members of the 2nd accused person’s family. According to the defence no evidence was given of any “unknown” persons being involved in the attack or for choosing to complain against “many others unknown” instead of the known members of the 2nd accused family. It is the case for the defence also that evidence abound on record to show that the relationship between the complainant and his family including P.W.1 and the accused persons’ family has not been cordial and that there have been series of misunderstandings between them.

After a review of the evidence, the learned trial Judge convicted the appellants as indicated above but decided to caution and discharges them.

Dissatisfied with the decision of the court below, the appellants appealed to this court on a number of grounds of appeal as shown in their individual Notice of Appeal.

The appellants filed their briefs of argument. So did the State. The appellants also filed a reply brief dated 26th February, 1997. Based on the grounds of appeal filed, the appellants formulated the following issues for determination:-

“(i) Whether the learned trial Judge was right in holding that the defence of alibi was not available to the appellants.

(ii) Whether the learned trial Judge properly evaluated the evidence before him before coming to the conclusion that the appellants were guilty.

(iii) Whether the decision of the trial Judge is justifiable having regard to the evidence and the law.

(iv) Whether the learned trial Judge observed the appellants’ full right to fair hearing at the trial.

For its part, the State raised three issues for determination which read:-

“1. Whether the defence of Alibi was available to the appellants,

2. Whether there was sufficient evidence both direct and circumstantial to convict appellants for the offence charged.
3. Whether there exists any error in the trial judgment which occasioned a miscarriage of justice”.

The main question for determination in this appeal is whether the prosecution proved its case against the appellants beyond reasonable doubt as required by law. It is clear from the judgment of the learned trial Judge that he relied on the evidence of P.W.1 and P.W.2 and circumstantial evidence to convict the appellants.

I must state from the outset that in all criminal trials the burden is on the prosecution to prove beyond reasonable doubt the guilt of the accused. See Babuga v. State (1996) 7 NWLR (Pt. 460) 279, Onugbogu v. State (1974) 9 SC 1; Chia v. State (1996) 6NWLR (Pt. 455) 465. So that where there are material contradictions on vital issues which create reasonable doubt, the learned trial Judge has a duty to resolve the doubt in favour of the accused. See Baruwa v. State (1996) 7 NWLR (Pt. 460) 302.

I shall now examine the evidence led by the prosecution. It is manifest from the record that while the charge against the appellant relates to No. 49 Mariere Street, Agbor, the P.W.2 had testified before Maidoh, J., during the second hearing of the case that the house, which is the subject matter of his complaint was No. 32 Mariere Street. Agbor, P.W.2 admitted this marked difference in numbering of the house in question at page 11 lines 29-41 of the record. It was also established that the claim that the house in question was roofed with zinc is inconsistent with his evidence before Hon. Justice Gbemudu at the first hearing that the house “was a thatched house with mud walls”. (See Exhibit ‘A’). The P.W.1 also claimed that the initial report she made to the Police was that of arson even though she admitted had not been set on fire before she left for the Police Station One wonders why she reported to the Police that her house had been set on fire even when it is clear that the house had not been set on fire.

Again Exhibit P – the complaint contradicts P.W.1 and P.W.2 as to the timing of the incident- the subject matter of the charge. While they say the incident took place between 6.30 p.m. and 7.00 p.m. in the complaint Exhibit P, the incident was said to have taken place at about 20.30 hours which is 9.30p.m. The P.W. 3 – Police Inspector, Idahor on his own part had no difficulty in rendering himself an unbelievable witness. He claimed on the one hand that the initial complaint lodged by P.W. 2 was that of arson but he produced the extract of the crime diary which recorded the complaint which shows that the complaint was one of conduct likely to cause a breach of the peace – Exhibit P. P.W. 3 later stated that until he visited the scene of crime the following day – 28/4/88 the offence of arson was not disclosed. He even went further to admit that his written report on the investigation did not indicate that any part of the complainants’ building was burnt. In other words his report did not indicate any arson. He also confirmed that he did not invite me accused persons to make any statement on the issue of arson. The question that would readily come to mind from the evidence inspite of its self contradiction is, if there was arson, how come a police investigator’s report is completely silent on it even though, it was supposed to be the basis of the investigation and indeed the charge.

I hold the view that from the contradictions and inconsistencies/discrepancies in the evidence of the prosecution witnesses the learned trial Judge upon a proper evaluation of the evidence ought not to have credited the prosecution witnesses with any credibility or rely upon any part of their testimony. See Onubogu v. The State (1974) 9 SC 1; Opayemi v. The State (1985) 2NWLR (pt. 5) 101; (1985) 6 SC 347 at 366; Nnajifor v. Ukonu No.2 (1986) 4 NWLR (Pt 36) 505 at 521; Nwankwo v. The State (1990) 2 NWLR (Pt. 134) 627 at 636.It seems to me that in the face of exhibit ‘P’ at page 72 of the record, the learned trial Judge ought to have been very wary in accepting the evidence particularly of the P.W.1 and P.W.2. The law recognises that where an eye witness fails at the earliest opportunity to mention the names of persons known to him who he claims committed the offence, such evidence of identification at a later stage ought to be approached with caution. See Bozin V. The State (1985) 7 S.C. 450 at 469. With due respect to the learned trial Judge, it seems to me that he failed completely to advert his mind to we above principle but merely decided to find excuse for obvious discrepancy between the evidence of prosecution witness and Exhibit ‘P’. Offering what may seem an ill-occasioned explanation (which of course, the prosecution did not deem it necessary to make for itself), we learned trial Judge at page 37 lines 5-8 of the record said:-

“Little did P.W 1 know at the time they were at the Police Station that their house had been set on fire, a fact they came to know only on their return from there.”

It is crystal clear from the record that this was not the explanation of the P.W.1 or any of the prosecution witnesses, rather, there was a concerted effort on the part of the prosecution witnesses in deceiving the court to believe that the complaint made by the complainants when they arrived at the Police Station was one of arson. See page 8 lines 27 – 31, page 15 lines 38 – 40 of the records. It must be said that the learned trial Judge had no duty to offer any explanation on behalf of the prosecution as it is not his duty to bridge the yawning gaps in the case for the prosecution. See Onubogu v. The State (supra). Not one of the prosecution witnesses offered that explanation (not even the I.P.O. P.W.3) notwithstanding that they had the opportunity to do so.

It should be noted also that the learned trial Judge also relied on matters other than those constituting evidence before him. For instance in seeking to justify his conclusion that were was no contradiction in we prosecution’s case, we learned trial Judge at page 37 lines 20-32 said that the witnesses (P.W.1 and P.W.2) clearly stated in their separate statements in exhibits B and C as well as weir evidence (in the previous proceedings Exhibit ‘A’) that they heard 2nd accused instruct the 1st accused to fetch petrol. Exhibits ‘A’, ‘B’ and ‘C’ tendered during cross-examination of P.W.1 and P.W.2 clearly show that these witnesses can not be relied upon as can be gleaned from the record, they told naked lies on a number of issues particularly on the issue of petrol. It seems to me that on a proper evaluation of the evidence before the learned trial Judge he would have discovered that PW.1 and P.W.2 are not reliable witnesses. Thus as can be clearly seen from Exhibits ‘A’, ‘B’ and ‘C’ the learned trial Judge’s finding was not based on the evidence before him.

Again when at page 37 lines 5-8 of the record, the learned trial Judge sought to explain the discrepancy between Exhibit ‘P’ and the evidence of the prosecution witnesses in court, it was not based on evidence before the court. Similarly when at page 36 lines 15-18, the learned trial Judge said:-

“I have examined all these items and I am satisfied that the building of P.W.2 was actually set on fire from where those burnt items were recovered”.

The above quoted finding was not based on evidence before the court. The evidence before the court on the issue was that of P.W.3 and D.W 1 both of them Policemen. P.W.3 was the Investigating Police Officer and at page 14 lines 35-40 of the record said:-

“I discovered that the entire household property of P.W.1 were brought out of the house and set on fire right from the front doorstep to the main road. They include both iron and wood boxes, beds, cloths, cast iron pots, windows and door frames and other items.”

Under cross-examination at page 16 lines 34-38, he said: “I cannot remember if I recovered any burnt item from inside the house â€?I did not collect any burnt roofing member from that house”. D.W.1 who went to the house of the 2nd accused at No.51 Mariere Street. Agbor that night at about 11.30 p.m. to 12 mid night said at page 19 lines 9 -10 of the record that he did not see any fire at No.49, Mariere Street. Agbor (complainants’ house) that night.

It is intriguing where the learned trial Judge found the evidence he relied upon to satisfy himself that the burnt items were recovered from the house of the complainants contrary to the evidence of the witness who recovered them and who said that the items were recovered from outside the building.

On a proper evaluation, it seems to me that the learned trial Judge ought to have rejected the evidence of P.W.3. Also at page 38 lines 18-23 of the record, the learned trial Judge said:-

“The report made by PW.1 and P.W.2 at the Police station when they first went there to report was of conduct likely to cause breach of the peace’ and not of arson, and report made particularly against the 2nd accused and her children (i.e. 1st and accused persons”).

The above statement was clearly not borne out by evidence. Exhibit ‘P’ shows that the complaint was not against 1st and 2nd accused persons or the 1st and 3rd accused persons but against the 2nd accused “and many others unknown”.

At page 34 lines 33 to 38 of the record, in attempt to recapitulate the prosecution’s case which to my mind actually formed the basis of his findings, the learned trial Judge said:-

“He (there referring to 1st accused) was seen by P.W.1 and P.W.2 and he was said to have joined in the attempt to get hold of P.W.1 whom they wanted forcibly to drag to the council of native doctors to be confronted with the allegation of having killed their father based of course on a self-confession of witch-craft allegedly made by her.”

As I have said above, it is not the duty of a trial Judge to bridge the yawning gaps in the case for the prosecution. I have no doubt in my mind that the above summary of the learned trial Judge is misleading and perverse as the same is not an expression of the true statement of the P.W.1 and P.W.2 as borne by the record of proceedings in this case. According to the record, while P.W.1 said she was being beaten by the accused persons for the reason that she was alleged to have killed their father, the P.W.2 said at page 10 lines 16 to 17 of the record:-

“I noticed that the three accused persons were trying to drag my mother outside”.

There was certainly no evidence to the effect that the accused persons “wanted forcibly” to drag P.W.1 to the council of native doctors to be confronted with the allegation that she killed their father. See The Queen v. Wilcox (1961) 2 SCNLR 296; (1961) 1 All NLR 631 at 634. It must also be mentioned that it is now trite law that no trial Judge should find sanctuary in the mere use of such expressions as “I believe or disbelieve” or “I am satisfied” without the benefit of a proper evaluation. The courts have said in a number of cases that there is neither magic nor sanctity in these words. The courts insist they must be stimulated by facts otherwise they remain without a useful purpose. See Agbanyi v. State (1995) 1 NWLR (Pt 369) 1 at page 22; Akibu v. Opaleye (1974) 11SC 189 at 203; Bozin v. The State (1985) 2 NWLR (Pt. 8)465; (1985)7 S.C (Pt 1) 450 at 473; Okonji v. The State (1987) 1 NWLR (Pt. 52) 659 at 672.At page 36 lines 32 to 41 of the record, the learned trial Judge concluded that he believed the evidence of P.W.1 and P.W.2 and that they told the truth. He also concluded that they the accused set the building on fire when P.W.1 and P.W.2 were away to the Police station. It seems to me that these conclusions were without the benefit of any evaluation or at best without the benefit of a proper evaluation.

This court can therefore interfere.

I am of the view that to credit the P.W.1 and P.W.2 with any credibility, the learned trial Judge ought to have considered their knowledge of the facts to which they testified, their disinterestedness, their integrity, their veracity and whether their evidence was contradictory or contradicted by surrounding circumstances. See Onuoha v. State (1989) 2 NWLR (Pt. 101) 23 at 32, 34 and 35; Adelumola v. The State (1988) 1 NWLR (Pt. 73) 683 at 691. It is clear that from the evidence, P.W.1 and P.W.2 were obviously not in a position to satisfy all the above requirements. Even without a detailed consideration, it is obvious that P.W.1 and P.W.2 cannot claim disinterestedness nor can they claim veracity. It is also manifest from the record that their evidence was contradictory and contradicted by surrounding circumstances.

Before concluding his judgment, the learned trial Judge at page 38 lines 36 – 40 and page 40 lines 1- 8 of the record had this to say:-

“In consideration of the evidence before me I find as a fact that the house of P.W.2 was set on fire on 27th April, 1988 by the accused persons, reason being that she was alleged to have confessed to 2nd accused sometime before that she was a witch who killed her (2nd accused) husband and the father of the 1st and 3rd accused persons.

I find no truth in this allegation. However, I am convinced that it was when P.W. 1 will not go to the council of native doctors to be confronted with the allegation nor will she yield to accompany the accused persons when they forcibly tried to take her there that was when the accused persons now decided to set her place on fire”.

With due respect to the learned trial Judge, the above finding is conjecturer as it is not supported by any modicum of evidence.

On circumstantial evidence, the learned trial Judge at page 39 lines 9 – 14 said:-

“The evidence against the accused persons although circumstantial, points irresistibly to the conclusion that the crime was committed by none other than they the accused persons, who were propelled by the evil motive to cause her pain as she would not acede to their request to accompany them to that meeting.”

It must be noted that in order to sustain a conviction based on circumstantial evidence, the circumstances relied upon by the prosecution must lead conclusively and indisputably to the guilt of the accused person. As Lord Normand has rightly pointed out in Teper v. R. (1952) AC 480 at page 489:-

“It must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on anotherâ€? It is necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other coexisting circumstances which would weaken or destroy the inference”,

See State v. Omade Edobor & ors. In Re Omade Edobor (1975) 9 -11 SC 69 at pp. 76 – 77. In the case in hand the circumstantial evidence relied upon by the learned trial Judge vis-a -vis his above finding does not lead indisputably to the guilt of the accused persons as there are other co-existing circumstances as manifest from the record which to my mind have weakened or destroyed the inference. At page 38 lines 26 to 31 of the record, the learned trial Judge on the defence of alibi said:-

“On issue of alibi, the accused persons raised no credible evidence worthy of being investigated by the Police. No particular of any alibi were given to the Police and besides it was obvious to the Police at the time that the accused persons were telling lies.”

I am not in doubt that the above statement of the learned trial Judge is sweeping and laconic. He did not go far enough to analyse the alibis raised before jumping into adverse conclusion. By their statements to the Police, Exhibits D, E and F. the accused persons had set up the defence of alibi indicating that they were not at the scene of crime at the time alleged or at all and indicating where they were.

It is an essential principle of a criminal trial that a defence however fanciful, stupid or doubtful deserves of consideration – See R. v. Barimah 9 WACA 197. In Exhibit D at page 66, lines 37-41 of the record, the 1st accused indicated that he was at the Police Station, the same Police Station from which the P.W.3 was assigned to investigate the case and indeed as borne out by the record of proceedings, the only Police Station at the time at Agbor between 6.00 p.m. and 8.00 p.m. on the day in question. P.W.1 had said the crime alleged took place at about 7.00p.m. From the evidence of P.W.2, it is also clear that the time estimation is about the same as P.W.1. The investigating Officer (P.W.3) did not complain of having any difficulty in cross-checking the story of the 1st accused, indeed he made no attempt at all to investigate any of the alibi. One wonders therefore where the learned mal Judge found evidence upon which he sought to excuse the failure of the Police Officer to do the duty imposed on him by law. This is even more seriously considered against the background that the prosecuting State Counsel in his duty to ensure that justice prevailed had conceded that the alibi was not investigated and that indeed he could not press the charge of arson. See page 31, lines 23-30 of the record.

The 2nd accused by Exhibit ‘E’ also denied presence at the scene of crime.

She stated that she was attending the meeting of Native Doctors to which she had summoned the P.W.1 for native arbitration in the house of one native Doctor called Obiazi and that when the P.W.1 would not attend she later returned to her house where she met her children, 3rd accused and Faith Morka.

From the evidence on record, it is clear that the Police made no attempt to interview the Native Doctor Obiazi or the children of the 2nd accused whom she said she met in the house when she returned.

In respect of the 3rd accused, her alibi was that she was in the house with her daughter when she heard P.W.2 at about 5.00 p.m. shouting that he would kill any person he met in the house of the accused persons. According to 3rd accused she quickly got hold of her daughter and locked the doors and she remained in the house where she later heard a crowd attacking and fighting with P.W.2. She maintained that she never went out of her family house.

It is doubtless clear from the record that the Police made no attempt to investigate this story which they could easily have done by interviewing any of the neighbours of either the accused persons or the complainants.

It seems to me therefore that there was no factual basis for the learned trial Judge to have arrived at the conclusion he arrived at on the issue of alibi. It must be borne in mind that an accused person has no duty to prove his innocence. See Nwankwo v. State (1990) 2 NWLR (Pt. 134) 627 at 639. It is the law that the person who puts forward an alibi as his answer to a charge does not undertake upon himself any burden of proving the defence but on the prosecution to disprove it. See Abudu v. State (1985) 1 SC 222 at 234; Agbanyi v. State (1995) 1 NWLR (Pt. 369) 1 at page 19. There can be no doubt that where the evidence offered by the accused person in support of alibi is weak and that of the prosecution in disproving the alibi is stronger, the court will be entitled to reject the defence of alibi. Such strong evidence upon which the court can rely in rejecting the alibi could be evidence of eye witnesses who saw the accused person committing the crime. See Yanor v. State (1965) I ANLR. 193 at 200; Njovens v. The State (1973) 5 SC 17 at 65-66.I therefore hold the view that the failure of the prosecution to investigate the alibi raised by the accused persons in their statements to the Police must be construed in their favour See Clark Ejuren v. Commissioner of Police (1961) All NLR 478.

For the foregoing reasons, this appeal succeeds and it is accordingly allowed. The convictions and the order of cautioning and discharging the accused persons are hereby set aside. The appellants are acquitted and discharged.

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Other Citations: (1998)LCN/0402(CA)