Michael Nwangwa & Ors. V. The State (1997)

LawGlobal-Hub Lead Judgment Report

KATSINA-ALU, J.C.A. 

This is an appeal against the judgment of the Isiala Ngwa High Court holden at Okpuala Ngwa presided over by Isuama, J., in charge No. HIN/28C/87. The appellants were charged with the offences of conspiracy and “Arson”. In his judgment delivered on the 27th day of February, 1995, the appellants were convicted of the offences with which they were charged and sentenced to five (5) and ten (10) years imprisonment respectively. The sentences to run concurrently.

The case of the prosecution as related by PW1 Chijioke Enwereuzo was that on the 6th day of March, 1980, the appellants went and harvested the palm fruits belonging to the complainants. After harvesting, the appellants went into the compound of the complainants, drove them away and set two of their houses on fire. PW1 gave an eye witness account of the incident. The prosecution also relied on the previous testimony of Donatus Enwereuzo (now deceased).

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 tendered Exhibit ‘C’ the Report of the police investigation compiled by the IPO who had died before the commencement of the trial.

After a review of the evidence, the learned trial Judge convicted and sentenced the appellants as indicated above.

The appellants filed their brief of argument. So did the State. Based on the grounds of appeal filed, the appellants formulated the following issues for determination in this appeal:-

1. Whether the defence of alibi was available to the appellants and whether the learned trial Judge gave adequate and proper consideration to the defence of alibi set up by the appellants when he held that the appellants did not discharge the evidential burden of giving full and sufficient particulars of their defence of alibi? (This issue is covered by ground 1).
2. Whether the learned trial Judge was right in accepting and relying on the printed evidence of a witness who did not testify before him without proper caution or assessment? (This issue relates to ground 2).
3. Whether the learned trial Judge was correct in law to have regarded as worthless hearsay the Investigating Police Officer’s Report (tendered during trial) especially when the IPO had died before trial? (This issue arises from ground 3).
4. Whether the learned trial Judge was right in relying on the evidence of the prosecution witnesses without caution when there was abundant evidence of bad blood between the complainants and appellants. (This issue relates to ground 4 of the appeal).
5. Whether the circumstantial evidence relied upon by the trial court is cogent, positive and compelling to leave no doubt that it was the appellants who committed the offences charged.
6. Whether the terms of imprisonment imposed on the appellants were not excessive?

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

1. Whether the defence of alibi should avail the appellants.
2. Whether the learned trial Judge was right in attaching weight to Exhibit A, the previous testimony of a witness (now deceased) who testified and was cross-examined before another Judge, while attaching no weight to exhibit c, the investigation police officers report, tendered during trial but whose maker (now deceased) was never called as a witness.
3. Whether the trial learned Judge relied on circumstantial evidence that, fall short of the required standard to convict the appellants and did not warn himself before convicting on the evidence of the prosecution witnesses in view of the bad blood existing between the parties.
4. Whether the sentences were excessive.

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 Judge that he relied on the evidence of PW1 and Exhibit A 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: Onubogu v. State (1974) 9 SC 201; Chia v. State (1996) 6 NWLR (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. PW1 Chijioke Enwereuzo was the complainant. He gave an eye-witness account of the incident: Part of his evidence-in-chief runs thus:

“I know the accused persons. They are my relations. On the 5/3/80, the accused persons harvested their own palm fruits and on 6/3/80 they came and harvested our own palm fruits. After harvesting our palm fruits, they came into our compound to fight us. All the accused persons were the people who came to our compound to fight us. They came into our compound and drove us away and set my building and my father’s house on blaze. I ran inside our backyard when the accused persons drove us away. I ran to the police station……..”

The learned trial Judge believed the testimony of this witness. The learned trial Judge also relied on Exhibit ‘A’. Exhibit ‘A’ is the previous testimony of one Donatus Enwereuzo before Eziri. J., on 23/6/88. This witness died before the commencement of hearing before Isuama, J. Part of his evidence in chief reads:

“I know the accused persons. They are from the same village with me. I remember the 6th day of March, 1980, I was in our compound that day around 3 pm many things happened around our house. By 10 am we were at home with my mother and my father’s wife, my younger brother was there with Cecilia and Angelina when the accused persons arrived with matchets and clogs chanting war songs. When we heard their war songs we ran away because we have not been in good terms with them. From our hiding place we observed that the whole compound had been engulfed with fire. We ran to the police station…..”

Under cross-examination this witness said:

“I saw the accused persons at a distance of 50 metres. I saw many of them up to one hundred people. I now say they might be 60 or 70 people all from my village………”

Donatus Enwereuzo was the elder brother of PW1. Chijioke Enwereuzo. From their accounts of the incident they were both eye-witnesses. But their accounts differ in two significant ways. Firstly, PW1 stated that the appellants harvested the palm fruits belonging to them (respondents) on 6/3/80. That it was thereafter that the appellants went into their compound to attack them. His late elder brother Donatus Enwereuzo did not allude to this alleged harvesting of their palm fruits by the appellants. Secondly, Donatus Enwereuzo stated in his evidence that the number of people who came to attack them was between 60 and 70. PW1 was silent on this. His evidence created the impression that it was only the appellants who came into their compound on that fateful day to attack them. Donatus Enwereuzo had stated that all these people were from their village. This gives the impression that the people were known to the respondents. No mention is made about the remaining 49 or 59 persons.

I am intrigued by the fact that the learned trial Judge believed the testimonies of these two persons without an explanation as to these vital omissions which in my view amount to contradictions. It seems to me plain that the learned trial Judge did not properly evaluate the evidence before him. It is necessary to re-state that this was a criminal trial and in all criminal trials, the onus is on the prosecution to prove the guilt of the accused beyond reasonable doubt. Failure to do so would lead to their discharge. This is so because the burden of proof does not shift on the accused. Put in another way the accused is under no obligation to prove his innocence. See: Udedibia v. Stale (1976) 11 SC 133; Onafowokan v. The State (1987) 3 NWLR (Pt.61) 538.

This brings me to appellants’ issue No.4 which relates to the failure of the learned trial Judge to advert his mind to the copious evidence of bad blood between the appellants and the complainants. It was said for the appellants that the learned trial Judge had a duty to decide whether the strained relationship affected or was capable of affecting the mind of the complainants so as to classify them as biased, prejudiced or tainted witnesses. This, it was pointed out, the learned trial Judge failed to do. It was submitted that if the learned Judge had adverted his mind to this fact, it would have been obvious to him that they were out for a revenge against the appellants.

For the respondent it was pointed out that the learned trial Judge did caution himself before accepting the evidence of the eye-witnesses who were blood relations.

In the course of his judgment, the learned trial Judge stated at page 43 lines 15-22 of the record as follows:

“In appraising, evaluating and assessing the credibility to be attached to the evidence of PW1 and Exhibit ‘A’, I accept these two eye-witnesses account of what happened on 6/3/80 that led to the information under trial. I am not unmindful of the caution with which the evidence of blood relations should be viewed as in this respect. PW1 and the maker of Exhibit “A” are brothers.”

It is clear from the above passage that the learned trial Judge received the evidence of PW1 and his brother Donatus Enwereuzo the maker of Exhibit “A” with caution. These two witnesses are brothers. See Rex v. Thompson Udo Essien 4 WACA 112. The evidence before the trial court showed that the appellants stopped the complainants from taking part in any communal activity on the ground that the complainants were strangers; the father of the complainants killed two members of the appellants’ group in the village and some of the appellants testified for the prosecution. There had been series of court cases between the complainants and the appellants.

In view of these facts I find it difficult to hold that the learned trial Judge appreciated the caution in regard to the evidence of PW1 and Exhibit “A”. It should have appeared obvious to him that in such circumstances bias cannot be ruled out and bias or even the likelihood of bias is enough to cast doubt on the case of the prosecution. See Mande Ali v. State (1972) 10 SC 87. The evidence makes it crystal clear that PW1 and his brother Donatus Enwereuzo had a purpose of their own to serve. They were clearly tainted witnesses from every point of view. In such a situation the court of trial should be wary in convicting on the evidence of such tainted witnesses without some corroboration. See: State v. Dominic Okolo (1974) 2 SC 73; Mbenu v. The State (1988) 3 NWLR (Pt.84) 615. I find no independent evidence on record which corroborates the evidence of these two witnesses. It was therefore clearly unsafe for the learned Judge to convict the appellants on the evidence of PW1 and Exhibit “A”.

I turn now to Exhibit “C” the IPO’s report. I have already indicated earlier on in this judgment that each appellant pleaded alibi in their various statements to the police. In law, there is no burden of proof on an accused who puts forward an alibi as his defence. He however has the evidential burden – the burden of adducing or eliciting some evidence tending to show that he was at some particular place other than that where the prosecution says he was. See: Peter Nwachukwu Eze v. State (1976) 1 SC 125. The burden of establishing the guilt of the accused rests throughout on the prosecution.

In the instant case, the prosecution made no attempt to place before the trial court any evidence tending to suggest that the alibis were investigated and found to be untrue. Rather the IPO’s Report was tendered by the defence under cross-examination of PW2 without objection. The learned trial Judge held that:

“Exhibit ‘C’ is really weightless and worthless hearsay.”

Firstly, section 36 of the Evidence Act, Laws of the Federation of Nigeria, 1990 makes provision for the admission of Reports of investigating police officers in certain cases, Section 36 “Evidence Act.” provides:

“Notwithstanding the provisions of this Act or of any other law but subject as herein provided, where in the course of any criminal trial, the court is satisfied that for any sufficient reason, the attendance of the investigating police officer cannot be procured, the written and signed statement of such officer may be admitted in evidence by the court if:-

(a) the defence does not object to the statement being admitted; and

(b) the court consents to the admission of the statement.”

The report Exhibit ‘C’ was therefore properly received in evidence. Secondly, such a report would form part of the case of the prosecution and is therefore subject to proper evaluation by the court, In this case the prosecution was silent about Exhibit ‘C’. It was tendered by the defence during the cross-examination of PW2 without objection. The learned trial Judge dismissed it with a wave of the hand. He held it was “really weightless”. He gave no reasons for saying so. It is quite plain that the learned trial Judge did not evaluate or properly evaluate Exhibit ‘C’. One does not need a magnifying glass to see that Exhibit ‘C’ enhances the case of the defence. The IPO stated clearly therein that he investigated the alibis of the appellants and found them proved. He added that he did not have enough evidence to prosecute the case. This is sufficient to dispose of this case in favour of the appellants.

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

Other Citations: (1997)LCN/0262(CA)