Obed Ikechukwu Kanu & Ors. V. State (1993)
LawGlobal-Hub Lead Judgment Report
EDOZIE, J.C.A.
This appeal is against the judgment of the Umuahia High Court in Charge No. HU/5C/87 delivered by Maranzu J. on 12th January, 1990. The four appellants, members of one family, are from 1st to the 4th, a son, a daughter, a mother and a father respectively of Kanu family of Umuokoroala Afugiri, Umuahia. They were charged on information for the offence of murder contrary to section 319(1) of the Criminal Code, Cap.30 Volume 2, Laws of Eastern Nigeria 1963 applicable in Imo State. The particular of offence alleged that on 22nd of November, 1986, at Umuokoroala Afugiri in the Umuahia Judicial Division they murdered one Vincent Nwosu, hereinafter referred to as the deceased.
The deceased, Vincent Nwosu, was the husband of the 2nd appellant, Urumma Nwosu on account of a matrimonial dispute between them, the 2nd appellant deserted her matrimonial home to live with her parents and brother, that is, the 4th, 3rd and 1st appellants. The deceased approached his in-laws for settlement of the dispute between him and his wife (2nd appellant). A meeting to that effect was agreed upon and slated for the 22nd of November, 1986 in the house of the 4th appellant. On that day, the deceased with his mother Ezioma Nwosu (P.W.4) and other relations attended the reconciliation meeting in the house of the 4th appellant. The four appellants with other relations of theirs were also present at the meeting which took place in the parlour or sitting room of the 4th appellant. As the deliberations progressed, the 2nd appellant supported by her mother the 3rd appellant stated her case after which the deceased Vincent Nwosu also supported by his mother Ezioma Nwosu (P.W.4) presented his own case. Thereafter the arbitrators, consisting of the invited relations on both sides retired to another house to deliberate on their verdict. It was during this interval that the events which culminated in the charge of the appellants took place.
According to the prosecution, as the arbitrators left the venue of the meeting, they left behind them all the four appellants, the deceased, Vincent Nwosu, his mother (P.W.4) and one Johnson Amaechi Ekenyere (P.W.1) a brother-in-law of the deceased. The P.W.1 and P.W.4 gave an eye witness account of what transpired in the sitting room of the 4th appellant after the arbitrators had left to consider their verdict. According to them, the 2nd appellant declared that whatever the arbitrators might decide, she was not prepared to resume cohabitation with her husband, the deceased. To that declaration, the deceased retorted that if his wife the 2nd appellant refused to return to him, then her parents-would refund to him the bride price and all he spent in marrying her. Apparently incensed, the 1st appellant, aged 20, in his youthful exuberance emerged from the inner room and slapped the deceased on the face and rebuked him for the utterances he made. Thereupon, all the other three appellants joined the 1st appellant in attacking the deceased and in the melee, the deceased was overpowered and beaten to death. During the attack, the prosecution alleged inter alia, that the 1st appellant gave the deceased a fist blow on the nape, the 4th appellant squeezed the throat while the 2nd and 3rd appellants knocked the deceased’s head on the ground accompanied by a statement by the 3rd appellant that the deceased should die if he wanted to. It was further alleged that during the attack on the deceased by the appellants, the 1st appellant procured a matcher to cut the deceased into pieces but he was disarmed by the 2nd appellant who sustained injury in the process. Medical evidence of P.W.2 was that the deceased died of asphyxia due likely to an interference in the oxygen intake which could have resulted from gagging the mouth and nostrils or gripping the neck to reduce oxygen intake and increase the accumulation of carbon-dioxide.
Each of the appellant gave evidence on oath denying the charge of murdering the deceased. Their case was that there was an exchange of punches between the 1st appellant and the deceased which made the deceased fell on an iron bed and thereby hit the nape or back of his head on the iron bed resulting in his collapse as he pursued the 1st appellant. It was further the case of the 1st appellant that the matcher he procured was merely to frighten the deceased who unknown to him had died. All the four appellants denied the presence or participation of the 4th appellant in the incident. It was also the case of the defence that P.W.1 was not present. In support of their case, the appellants also called D.W.5 as a witness.
After considering the evidence adduced by both sides and the submissions of learned counsel, the learned trial Judge accepted the prosecution’s case, rejected that of the defence and accordingly convicted and sentenced each of the appellants to death for the murder. To their amended notice of appeal are dove-tailed the following grounds of appeal:-
“Ground One
That the judgment is unfair, unreasonable and unwarranted having regard to the evidence properly proved and admitted at the trial.
Ground Two
The learned trial Judge erred in law when he relied on the testimonies of P.W.I and P.WA to convict all the accused persons when:-
(a) The oral testimonies of both witnesses had been discredited by their previous statement to the police admitted in evidence as Exhibits “A” and “B” respectively;
(b) The testimonies of both witnesses were contradictory of each other on very material issues;
(c) Exhibit “A” contradicted the oral testimony of P.W.1; thereby rendering two witnesses (sic) unreliable and thus irrelevant, being of no probative value in deciding whether the accused committed the offence alleged or not.
Ground Three
The learned trial Judge failed to take into consideration very relevant matters and thus misdirected himself, when he held:-
‘In this respect I believe and hold as a fact that not only was P.W.1 present during the arbitration proceedings but he was also one of those left behind in the parlour of 4th accused along with the accused persons and P. W.4, mother of the deceased and the deceased himself when some of the arbitrators went out to consider their verdict.’
PARTICULARS OF MISDIRECTION
(a) The learned trial Judge failed to take into consideration the discrepancies in the testimonies of the prosecution witness as to when P.W.1 arrived the house of 4th accused.
(b) The learned trial Judge failed to consider the evidence of D.W.5, which the Judge believed on whether P.W.1 was present or not.
(c) The learned trial Judge believed contradictory testimonies.
Ground Four – Error of Law
The learned trial Judge erred in law when he rejected the alibi of the 4th accused when there was no credible evidence before the court which put the 4th accused at the scene at the time the alleged crime was committed.
Particulars of Error
(a) Both P.W.1 and P.W.4 who testified that the 4th accused was present are discredited witnesses.
(b) D.W.5 never testified that 4th accused was present when the incident in issue occurred since he was not there himself.
Ground Five – Error of Law
The learned trial Judge erred in law when he failed to apply the defence under section 24 of the Evidence Act in favour of the 1st accused when it was clear from all credible evidence before the court that the injury that probably caused the death of the deceased was sustained accidentally.
Ground Six – Error of Law
The learned trial Judge erred in law when he passed a judgment of guilt for murder when the degree of certainty required for conviction in such a charge was far from being attained.”
In accordance with the Rules of this court, briefs of arguments were filed and exchanged by counsel for the appellants and respondent. In the appellants’ brief, six issues were set down for determination. They read as follows:-
“(a) Can a contradiction of an oral testimony by an extra-judicial statement of the witness be said to be non-existent or immaterial by a trial court after the said extra-judicial statement has been admitted in evidence by the same court in proof of the said contradiction?
(b) Was it proper for the trial Judge to have relied on the testimonies of P.W.1 and P.W.4 to convict the appellant considering the inconsistencies and contradictions which had in law rendered the witnesses unreliable?
(c) Was the evidence before the court conclusive of presence of P.W.1 at the scene at the time of the incident during which death occurred?
(d) Was the trial Judge right to have rejected the alibi of the 4th appellant in the absence of any credible evidence to the contrary?
(e) Was section 24 of the Criminal Code not available as a defence of accident in favour of the 1st appellant?
(f) Was the degree of certainty required for conviction in a murder trial attained in this case?”
The respondent’s counsel also formulated six similar issues which read as follows:-
“(a) Whether the admission into evidence of the extra-judicial statements of P.W.1 and P.W.4 as Exhibits “A” and “B” respectively is conclusive proof of the existence of material contradictions between the extra-judicial statements and the oral testimonies of P.W.1 and P.W.4 as to render the witnesses unreliable or unworthy of credit.
(b) Whether the oral testimonies of P.W.1 and P.W.4 were contradictory and inconsistent in material respects as to make them unsafe to be relied upon by the trial Judge.
(c) Whether the learned trial Judge’s finding of fact that P.W.1 was present at the scene of crime at the time of the incident during which the appellants killed the deceased is supported by evidence.
(d) Whether the learned trial Judge was right in rejecting the purported alibi of the 4th appellant in view of the credible and positive evidence establishing the presence of the 4th appellant at the scene of crime at all material times.
(e) Whether the defence of accident under section 24 of the Criminal Code was available to the 1st appellant.
(f) Whether the prosecution proved the case against the appellants beyond reasonable doubt.”
At the hearing of this appeal on 25th of May, 1993, counsel appearing for both parties adopted their respective written briefs of argument. Chief M. I. Ahamba, learned Senior Advocate of Nigeria for the appellants made oral submissions in amplification of the appellants’ brief. As the issues formulated by both counsel are substantially the same, I would like to stick and adhere to those formulated by the appellants’ counsel.
The star witnesses for the prosecution were P.W.1 and P.W.4 but while the presence of the latter at the scene of the incident was not disputed, the presence of P.W.1 at the scene was vigorously contested by the appellants. Since issue (c) of the appellants’ brief relates to that, I consider it appropriate to tackle it first. The issue is whether the evidence before the court conclusively established the presence of P.W.1 at the scene of crime at the time of the incident, the subject matter of this case. In his argument on this issue, learned counsel for the appellants contended that there are discrepancies in the evidence of the prosecution witnesses on the presence of the P.W.1 at the scene of crime. In that regard, learned counsel pointed out that while P.W.4 asserted that she went along with P.W.1 to the house of 4th appellant for the scheduled meeting implying that P.W.1 was there throughout, the P.W.1 in his own evidence testified that he arrived late at the meeting in the house of the 4th appellant at a time when the arbitration proceeding had commenced; furthermore, while P.W.5 testified that P.W.1 was with them from the beginning, P.W.6 on the other hand mentioned that P.W.1 had not arrived when the 4th appellant presented kolanuts to the gathering. Learned counsel referred to Exhibit “J” which is a record in the police diary where it was recorded that it was P.W.1 who reported to the police the incident of the murder of the deceased. This, counsel contended is incongruous with the evidence of P.W.1 to the effect that when he was going on foot to report the murder incident to the police, some people overtook him in a car to report the matter to the police. Learned counsel appeared to have cast aspersion on the prosecution for recalling the Investigating Police Officer (P.W.7) to tender Exhibit ‘J’ after the defence had closed its case. Finally, counsel referred to the evidence of D.W.5 called by the defence whose evidence the learned trial Judge believed and who testified that he did not see P.W.1 at the venue of the arbitration proceedings. In his response, learned counsel for the respondent urged the court to hold that the evidence on record conclusively established that P.W.1 attended the arbitration proceedings and was actually present at the scene of crime at all material times. The issue under consideration, that is, the presence of P.W.1 at the scene of crime was given a careful consideration by the learned trial Judge. At p.215 lines 23 to 33, p.216 lines 10 to 27, the learned trial Judge made the following findings:-
“The first, second and third accused persons have stoutly denied that P.W.1 Johnson Ekenye brother-in-law of the deceased was ever present at the house of 4th accused on 22nd November, 1986 the date of this incident. Learned defence counsel also put the same suggestion to P.W.1 himself and the other prosecution witnesses.
Unlike 1st, 2nd and 3rd accused persons, the fourth admitted that P.W.1 was at the scene of crime that very day 22/11/86 but according to 4th accused P.W.1 “came after the incident. I now again say that when I saw Johnson Ekenye was when I was in front of our compound waiting for a vehicle that will take my in-law late Vincent to the hospital.”
It is my view and I do hold that despite this grudging admission by D.W.4, 4th accused, that he saw P.W.1 soon after the death of the deceased…P.W.1 Johnson Ekenye was in actual fact present at the parlour of 4th accused when the encounter between the accused persons and the deceased took place.
In this respect I disbelieve entirely the evidence of 1st, 2nd and 3rd accused persons who denied entirely that P.W.1 ever attended the arbitration proceedings and who also denied that P.W.1 was at the scene of crime. In this respect, I believe and hold as a fact that not only was P.W.1 present during the arbitration proceedings but he was also one of those left behind in the parlour of 4th accused along with the accused persons and P.W.4 mother of the deceased and the deceased himself when some of the arbitrators went out to consider their verdict……
My finding of fact that P.W.1 was in the arbitration room during the incident that led to the death of late Vincent is reinforced by Exhibit “J”, Police Crime Diary at page 31 thereof where P.W.1 by 19.35 hours reported this case of murder to the police under serial Number 206.”
The above finding which is amply supported by evidence on record is impeccable. The learned trial Judge heard evidence called by both sides. He believed the prosecution’s witnesses and disbelieved those of the defence. This court is guided by rules. It is to review the case before it by way of rehearing. It is the court of first instance that sees witnesses, sifts evidence, evaluates the same and except it fails, in its duty of utilising the advantage of seeing those witnesses, the Court of Appeal abides by its finding and should be loathe to interfere unless such findings are perverse: Rowland Omorogie & 3 Ors. v. Idugiemwanye & Ors. (1985) 2 NWLR (Pt.5) 41: (1985) 6 S.C. 150 at 151. Besides, the issue in controversy appears to me relatively unimportant. This is so because the presence of P.W.4, another star witness is beyond controversy. She, P.WA, the mother of the deceased gave evidence substantially in accord with the evidence of P.W.1. If the evidence of P.W.1 were to be discountenanced, the trial Judge could properly have relied on the evidence of P.W.4 and other witnesses excluding that of P.W.1 in arriving at the same conclusion. The law is well established that except in cases where corroboration is required which is not in the instant case, if the evidence of a single witness sufficiently proves the case against an accused person and the trial court accepts the evidence, there is no rule of law or practice dissuading the court from convicting on the evidence: Anthony Igbo v. The State (1975) 9-11 S.C. 129 at 134. There was nothing wrong in the manner Exhibit “J” was received in evidence. An application was made by the prosecution to recall P.W.7 to tender Exhibit “J”. The application was vehemently opposed and in a lengthy ruling, the court overruled the objection. There is no appeal against that ruling and that being the case, it is not open to the appellants to cast suspicion on the admission in evidence of Exhibit “J”. The controversy over the presence of P.W.1 at the beginning of the meeting is in my view inconsequential. The important thing is that he was at the meeting and particularly present in the house of the 4th appellant during the incident which claimed the life of the deceased. It is also important to mention that though the learned trial Judge believed the evidence ofD.W.5 with particular reference to the presence of the 4th appellant at the scene of the incident he did not believe D.W.5 on his denial of seeing P.W.I at the venue of the meeting. A court is entitled to accept the evidence of a witness in respect of an issue and reject it on another: Saka Aremu & Anor v. Board of Customs and Excise (1965) NMLR 258; Okputu Obiade & Ors. v. The State (1970) 1 All NLR 35. In the light of the foregoing, issue (c) under consideration is answered in the affirmative.
On the issue relating to alibi, which I intend to consider next, the learned Senior Advocate referred to the case of Ikemson v. The State (1989) 3NWLR (Pt.110) 455 and contended firstly, that failure by the police to investigate the alibi set up by the 4th appellant at the earliest opportunity is fatal to the prosecution’s case, secondly, that the P.W.1 and P.W.4 are not credible witnesses whose evidence could displace or dislodge the alibi of the 4th appellant and thirdly, that it was a misdirection for the learned trial Judge to have relied on the evidence of D.W.5 in rejecting the alibi because although D.W.5 testified that the 4th appellant was among those left in his parlour when the arbitrators left for another house to consider their verdict, D.W.5 was not in a position to know whether the 4th appellant remained in his parlour up to the time of the incident since he the D.W.5 was not in the parlour of the 4th appellant at the material time. Responding, the learned legal officer for the respondent contended that the lame alibi set up by the 4th appellant was completely demolished by the testimony of P.W.1, P.W.4, P.W.5, P.W.6 and D.W.5. He craved in aid the following authorities:- Natan & Anor v. The State (1968) NMLR 56; Ekpe Ibor & Ors. v. The Slate (1983) 3 S.C 1; and Yanor & Anor v. The State (1965) NMLR 337 among others.
Alibi is a defence that places the accused person at the relevant time of crime in a different place from the scene of crime and so removed therefrom as to render it impossible for him to have committed the offence. Being a matter peculiarly within his knowledge the accused has a duty to disclose it to the police at the earliest opportunity and before trial begins for it to be investigated.
In the case of Ogoala v. The State (1991) 2 NWLR (Pt.175) 509, it was held that it is not a proper way of raising a defence of alibi for an accused persons to merely show that he was elsewhere at a time antecedent to the time the crime was proved to have been committed. He must however show that because he was at that place at that time, it was impossible for him to have been at the scene of the crime when it was shown to have been committed.
In the case in hand, the appellant was said to have raised his alibi timeously in his statement to the police Exhibit “H”. In the said statement made on the 23rd of November, 1986, that is, the day after the incident, the 4th appellant stated inter alia, thus:-
“Vincent came with his people and my own people come. When they talk finish, I carry Chineme outside and tell him I will beg Urumma to go back to Vincent. When I come insider the room I see Vincent lying on top of our bed.”
What the 4th appellant appears to be saying in the above extract is that he was outside his house with one Chineme when the incident resulting in the death of the deceased took place inside his house. In my view this alibi is rather tenuous. Was it physically impossible for him to have participated in the beating of the deceased: I think not. It was alleged that the police did not investigate the alibi. It is the law that the prosecution has the duty to investigate an alibi set up by an accused person and failure to do so may cast doubt on the prosecution’s case. But before an alibi can be investigated, sufficient facts must have to be disclosed to facilitate the investigation.
In Exhibit “H” the 4th appellant merely alleged that he was with one Chineme. Neither the full names nor the address nor any other relevant information about the said Chineme was disclosed in the said Exhibit ”H”. That notwithstanding, it would appear that the police did investigate the alibi and found it to be false. This is borne out from the cross-examination of the P.W.7 (IPO) in which at p.78 lines 21 to 30 of the record of proceedings the following questions and answers were recorded:-
“Q. Fourth accused mentioned in his statement to the police Exhibit “H” that he was outside with one Chineme by the time this incident occurred. Did Chineme make any statement to you?
Ans. Chineme made statement to me.
Q. Did Chineme confirm the story of 4th accused that he was outside with him at the time this incident occurred?
Ans. Chineme did not confirm the story of the 4th accused person.”
This disposes the complaint that the alibi was not investigated. In his evidence on oath, the 4th appellant gave a different version of his alibi. In his examination-in-chief, he merely stated that when the arbitrators left his parlour to consider their verdict he also left. He did not disclose where he left for but when under cross examination it was suggested to him that according to Exhibit “H”, he was outside his house with someone, he denied it. He asserted that he was alone and later went to collect the carton of beer he bought from a vendor. Where an accused person raises two alibis which are irreconcilably in conflict, he is deemed to have failed to discharge the evidential burden placed on him of adducing or eliciting some evidence tending to establish his alibi at the time of the offence charged: Ozaki v. The State (1990) 1 NWLR (Pt.124) 92; Adio v. The State (1986) 3 NWLR (Pt.31) 714; Adetola v. The State (1992) 4 NWLR (Pt.235) 267. The alibis set up by the 4th appellant being conflicting do not avail him. Besides, he did not call as a witness either Chineme or the vendor from whom he carried the carton of beer. Having relied on alibi, the defence has a duty of leading evidence tending to establish it. See Eze v. The State (1976) 1 S.C. 125 at 130: Gachi & Ors. v. The State (1965) NMLR 333; Yanor & Anor v. The State (1965) 1 All NLR 193 at 199.
The learned trial Judge was justified in relying on the evidence of P.W.1, P.W.4, P.W.5, P.W.6 and D.W.5 in rejecting the purported alibi of the 4th appellant. The evidence of P.W.1 and P.W.4 had not been shown to be unreliable, at least, as far as it related to the presence of the 4th appellant at the scene of crime at the material time. In answer to the issue under consideration, I am of the view that the alibi of the 4th appellant was rightly rejected by the learned trial Judge.
In regard to issue (E), the learned counsel for the appellants, on pages 20 and 21 of the appellant’s brief of argument, contended that the defence of accident under section 24 of the Criminal Code or the alternative defence of self-defence under section 286 of the said criminal code is available to the 1st appellant. He explained that the 1st appellant pushed the deceased in retaliation for the push on him by the deceased and that the death of the deceased resulting from his (deceased’s) fall when pushed by 1st appellant was purely accidental. We were urged to hold that the injuries sustained by the deceased which led to his death were as a result of his accidental fall on the bed thereby hitting his nape on the railings of the bed.
Counsel argued that medical evidence on the cause of the death of the deceased did not support or is not consistent with injuries inflicted on the deceased as alleged by the prosecution. In reply, the respondent’s counsel contended that the defence of accident under section 24 of the Criminal Code was unavailing to the 1st appellant. He pointed out that the case for the prosecution which the lower court believed was that the 1st appellant attacked the deceased and the other appellants helped him in beating the deceased to death. He argued that as evidence of the 1st appellant’s intention to kill the deceased, he the 1st appellant procured a cutlass to cut into pieces the deceased whom he admitted was then lying prostrate on the floor and posed no danger to him. Respondent’s counsel further contended that medical evidence was definite on the cause of death which was consistent with the credible evidence of the prosecution. He canvassed that the defence did not prove that the deceased hit the back of his head or nape on any metal part of the bed nor that the bed had any poles or railings, the evidence by P.W.2 being that the vono iron bed had a mattress of 4 inches thick on it.
To begin with, the issue under consideration was distilled from the fifth ground of appeal relating to the defence of accident under section 24 of the Criminal Code. Both ground 5 of the grounds of appeal and issue (e) for determination formulated on it talk of the defence of accident. I am therefore at a loss to appreciate counsel’s argument on section 286 of the Criminal Code which relates to the defence of self defence against unprovoked assault. There being no grounds of appeal or issue for determination based on it, it was a misconception for counsel for the appellants to have advanced argument on it. The argument based on section 286 of the Criminal Code is therefore discountenanced.
On the merit of the issue under consideration, the short answer to the arguments of learned counsel to the appellants is that evidence that is not believed cannot ground a defence.
It is only when evidence is credible and accepted as such by the trial Judge that the evidence concerned can be considered as raising a defence. When the evidence is rejected as incredible, no defence can be founded on it; Ukut v. State (1992) 5 NWLR (Pt.240) 202 at 212.The learned trial Judge having rejected the evidence of the appellants to the effect that the deceased met his death when on being pushed by the 1st appellant he fell and hit the back of his neck on the bed, and accepted the prosecution’s case that he was beaten by the appellants, there is no more any credible evidence on which the defence of accident can hang. I will therefore resolve this issue in favour of the respondent.
The first issue for determination that is, (a) relates to the oral testimonies of P.W.1 and P.W.4 and their respective statements to the police Exhibits “A” and “B”. As noted earlier, P.W.1 and P.W.4 gave eye witness accounts of the events that led to the death of the deceased. In the course of their examination-in-chief, they testified to what they witnessed. In cross-examination, the defence tendered through them their statements to the police Exhibits “A” and “B”. The purpose, apparently, was to impugn their credit. In his judgment, the learned trial Judge appeared to have held that there were no material contradictions between their oral testimonies and their previous statements. At page 224 lines 4 to 6 he said:-
“It cannot seriously be contended that P.W.1 contradicted himself having regard particularly to explanations offered by P.W.1 as to his state of mind when he made his statement to the police Exhibit “A”.”
The pith of the contention of the appellant’s counsel regarding the 1st issue for determination, is that as Exhibits “An and “B” had been admitted in evidence for the purpose of contradicting the evidence of P.W.1 and P.W.4, the trial Judge could not later hold that there were no material contradictions between their evidence in court and their previous statements as to do so would amount to the lower court over-ruling itself. The learned Senior Advocate referred to section 198 of the Evidence Act which allows a party in a suit to cross-examine a witness of his opponent as to a previous written statement made by him relevant to the proceedings. Under the said section, when it is sought to contradict the witness with the previous statement, his attention must be drawn to those parts of it which are to be used for the purpose of contradicting him before the writing can be proved. It is counsel’s view that “to be proved” means “the establishment of the alleged contradiction. Once proved, it must be admitted in evidence.” Learned counsel referred to the case of R. v. Yusufu Akanni (1960) SCNLR 239; (1960) 5 FSC 120; and R. v. Ukpong (1961) 1 SCNLR 53;(1961) 1 All NLR 25 and submitted that a previous statement of a witness admitted pursuant to section 198 of the Evidence Act, is not relevant for the proof of the subject matter of the proceeding, nor is it proof of the truth of the content therein, its singular purpose being to impugn the credibility of the witness who made it. Learned counsel further submitted that once the necessary condition for admitting a previous statement of a witness is complied with, and the statement is admitted, the credibility of the witness in question stands impeached and it is no longer open to the same Judge who admitted the statement to hold to the contrary. According to counsel, any explanation to be offered by the witness ought to be given at the time the statement is being sought to be proved. Counsel argued that if the explanation offered by the witness is cogent then the document or previous statement ought not to be admitted in evidence but once admitted, the same trial court that admitted it, is estopped from taking a view contrary to the effect of the admission of the statement. In respect of the case in hand, learned counsel contended that since Exhibits” A” and “B” were admitted to contradict the oral testimonies of P.W.1 and P.W.4 the lower court ought to have applied the principles laid down in the case of Onubogu v. The State (1974) 4 ECSLR 403 to hold that P.W.1 and P.W.4 were unreliable witnesses.
In his response, C. N. Oji Esq., Learned Legal Officer 1, submitted firstly, that the word “proved” as used in section 198 of the Evidence Act means no more than the establishment of the extra-judicial statement; secondly, that the admission in evidence of the extra-judicial statement of a witness is not conclusive proof of the existence of material contradictions between his oral testimony and the extrajudicial statement as to render the witness unreliable or unworthy of credit and thirdly, that the explanation or reason given by the witness for the inconsistency does not affect the admissibility of his extra-judicial statement. The learned Legal Officer urges us to hold that there were no material contradictions between the oral testimonies of P.W.1 and P.W.2 and their previous statements Exhibits “A” and “B”.
The question that calls for determination under the first issue is not whether or not there exist material contradictions between the oral testimonies of P.W.1 and P.W.4 and their previous, statements to the police Exhibits “A” and “B”. That question properly relates to the second issue for determination to be dealt with later in this judgment. The question that has to be determined under the first issue for determination which is rather academic turns on the proper interpretation of section 198 of the Evidence Act with particular reference to the conditions for and effect of the admission in evidence of a witness’s extra-judicial statement. The section is reproduced as follows:-
“198. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.” (Italics for emphasis)
I agree with the learned legal officer that the word “proved” italicised refers to “writing”, that is, the witness’s previous statement. It does not relate to proof of the contradiction as suggested by the learned Senior Advocate. It is where the previous statement is tendered that it may operate as contradictory of the oral evidence in respect of the issue on which it is admitted. But it is not every contradiction between the oral testimony of a witness in court and his previous written statement that will render the evidence of the witness unreliable.
It is trite law that it is not every contradiction in the evidence of the witnesses for the prosecution that may warrant interfering with the decision of the trial Judge.
For a contradiction to be fatal to a case, not only must it relate to a material fact, it must also lead to a miscarriage of justice. Queen v. Ekanem (1960) SCNLR 30; (1960) 5 FSC 14; Queen v. Iyanda (1960) SCNLR 593; (1960) 5 FSC 262; Omisade v. Queen (1964) 1 All NLR 233; Asariyu v. The State (1987) 1 NWLR (Pt.67) 709; (1987) 12 S.C. 62.
Section 198 of the Evidence Act reproduced above draws no distinction between material and immaterial contradictions of facts. The only conditions stipulated for admissibility of a previous statement of a witness are that attention of the witness is drawn to those parts of his statement which are to be used for the purpose of contradicting him and also that the statement be proved. It follows that if a previous statement is admitted in evidence, it is still open to the court to examine it critically to see if it really contradicts the oral statement of the witness in material respects. Furthermore, section 198 of the Evidence Act makes no provision or allowance for a witness whose evidence is being contradicted by his previous inconsistent statement to furnish any explanation for the inconsistency between his evidence on oath and his extra judicial statement. But it is trite law that it is where no cogent reasons are given for the inconsistency that the court should regard his evidence as unreliable; Christopher Onubogu and Anor v. The State (1976) 9 S.C. 1. At the time the previous statement is sought to be tendered, the cross-examining party is not obliged to seek for any explanation for the inconsistency between the witness’s evidence on oath and his extra-judicial statement. The duty to seek such explanation rests on the party calling the witness and this could be done at the stage of re-examination after the statement has been admitted in evidence. From the foregoing, I am of the firm view that the admission by the court of a previous unsworn statement of a witness for the purpose of contradicting his sworn evidence in court does not preclude or inhibit the court from later holding that the apparent contradictions do not relate to material points or that they had been satisfactorily accounted for and thus do not render the evidence of the witness unreliable. The answer to the first issue for determination is in the negative.
I now come to deal with the more crucial aspect of this appeal which covers matters relating to issues (b) and (f) formulated in the briefs of argument. Issue (b) deals with the existence and effect of contradictions between the oral testimonies in court of P.W.1 and P.W.4 and their unsworn statements to the police (Exhibits “A” and “B”) while issue (f) deals with the question whether the prosecution had proved its case against the appellants beyond reasonable doubt.
From the printed record, it was not disputed that the deceased, Vincent Nwosu, died a violent death on 22nd November, 1986 in the house of the appellants. The evidence led by the prosecution, believed by the trial court and which we also accept is that the deceased had an encounter with all the four appellants. The crucial issue is whether all or any of the appellants was responsible for his death. The learned Senior Advocate for the appellants had submitted that the evidence of the medical doctor, P.W.2 was supportive of the case of the appellants that nobody assaulted the deceased in the manner asserted by P.W.1 and P.W.4. What learned counsel was saying in effect was that the prosecution did not establish that it was the act of the appellants that caused the death of the deceased. It becomes necessary to examine the medical evidence in relation to the evidence of P.W.1 and P.W.4. Dr. Emmanuel Nwamara who gave evidence as P.W.2 was the medical doctor at Queen Elizabeth Specialist Hospital, Umuahia who performed post mortem examination on the deceased on the 24th November, 1986. Part of his evidence in chief at p.38 lines 4 to 19 reads as follows:-
“My findings were as follows: There were few parochial haemorrages (sic) in the skin of the scalp and face and innumerable patechial haemorrages (sic) beneath the celluse membrane of the lungs. In my opinion the cause of death is likely from asphyxia. Patochial haemorrages (sic) as in this case are small dot like collection of blood under the skin or membrane. These things that I have enumerated as the cause of death are due likely to all interference in the oxygen intake which could have come from gagging the mouth and nostrils or gripping the neck which will reduce oxygen intake and increase the accumulation of carbon dioxide in the body then there will be increased permibility (sic) of the blood vessels with resultant haemorrages (sic).” (Italics for emphasis)
The substance of P.W.2’s evidence was that the deceased died of asphyxia or suffocation due to gagging the mouth and nostrils or gripping the neck. What is the evidence of P.W.1 on the assault of the appellants on the deceased? The relevant part of his evidence is on p.28 lines 8 to 29 where he stated, inter alia thus:-
“Following what late Vincent Nwosu replied to the assertions of his wife, the second accused, then the first accused queried why late Vincent Nwosu should say so in their house and immediately he gave late Vincent Nwosu a heavy slap and as late Vincent Nwosu tried to get up, his wife the second accused called Urumma Nwosu gripped her late husband Vincent by his two legs and late Vincent then fell down.
As Vincent Nwosu was lying down on the ground, the first accused Obed Kanu with a clenched fist gave late Vincent Nwosu a fist blow on the back of his neck near his head and kicked Vincent Nwosu with his leg on Vincent’s belly as Vincent was lying on the ground. As late Vincent Nwosu was still lying on the ground the third accused Ugwuezi Kanu held him on his head and knocked his head several times on the ground saying in the process that Vincent should die if he wanted to. At the same time the fourth accused whom I thought was about to separate them held late Vincent Nwosu on his throat and was squeezing his throat.”
(Italics for emphasis)
In her own testimony on the same issue, P.WA on p.41 lines 21 to 22, .42 lines 1 to 13 of the compiled records had this to say:-
“Immediately late Vincent said so, Obed the 1st accused gave late Vincent a very hard slap on his cheek and as he was trying to stand up, the second accused Urumma held late Vincent on both legs and fell him on the ground. While Vincent was lying prostrate on the ground, Obed the first accused gave late Vincent a blow with his clenched fist on the back of the neck of late Vincent and also kicked him on the belly. At this juncture, the 4th accused Okereke held late Vincent on his throat and squeezed the throat for a long time. While Vincent was still lying on the ground, Urumma and Ugwuezi – 2nd and 3rd accused persons then held late Vincent on the head and knocked his head on the ground for several times and at that time late Vincent was still lying on the ground.” (Italics supplied)
Bearing in mind the medical evidence of P.W.2 on cause of death of the deceased, the act of the appellants, according to the evidence of P.W.1 and P.W.4 referable to cause of death was the squeezing of the deceased’s throat by the 4th appellant. But did these star witnesses for the prosecution, that is, P.W.1 and P.W.4 say in their statements to the police that any of the four appellants squeezed the throat of the deceased? In Exhibit “A”, the statement of P.W.1 made on 23rd November 1986, a day after the incident, he said in part, on pp 236-239 of the record thus:-
“Vincent replied that he (sic) would then vomit all his marriage expenses on Urumma.
Obed stood up and queried (sic) whether it was his reply and all at a time with his clinched (sic) fist beat the late Vincent on the face; when the two were exchanging blows, Vincent fell on the bed; Urumma and Ugwuezi jumped on him. While the three of them were beating Vincent with their clinched (sic) fist, Vincent fell from the bed to the floor, when [was separating them, Obed and Ugwuezi stood up but Urumma was still holding Vincent to the floor In Exhibit “B” made on 24th November, 1986, P.W.4 had this to say (pp.240-242):
“At that stage Vincent replied that if she refuse (sic) to follow him that they will refund his marriage expenses. Obed came out from the inner room and slapped Vincent as Vincent was sitting down when Vincent was about standing up on the receipt of the surprise slap, Urumma held him by the two legs through the back and
Vincent fell down. Obed hit Vincent with his clinched (sic) fist on the back of the neck and Obed also kicked at the stomach of Vincent while on the ground. Okereke Kanu quickly gripped Vincent by the legs and was drawing him towards the door. Urumma and Ugwuezi kept beating Vincent with their hands…Obed who abandoned Vincent and went back into the room came back to Vincent with a cutlass which he raised against Vincent but people held him.”
It is evident from Exhibits “A” and “B” that neither P.W.I nor P.W.4 alleged that any of the appellant squeezed the throat of the deceased. It was only in their oral testimonies in court given in May and June 1987 about six months after the murder of the deceased that P.W.1 and P.W.4 alleged that the throat of the deceased was squeezed by the 4th appellants. In his evidence under cross-examination P.W.1 made attempt to explain the disparity between his statement in Exhibit “A” and his oral testimony in court stating that he was confused when he made Exhibit “A”. This explanation is hardly plausible since Exhibit “A” was made not on the day but the next day of the incident the subject matter of this case. A careful perusal of the oral testimonies of P.W.1 and P.W.4 shows that their accounts of the incident are substantially uniform. There is no such uniformity in their statements Exhibits “A” and “B” with respect to the assault on the deceased. It is not surprising. Therefore, that the learned Senior Advocate referred to the dictum of Oputa, J.S.C. in the case of Esangbado v. The State (1989) 4 NWLR (Pt.113) 57 at 83 to the following effect:-
“As a matter of fact, when witnesses to one incident reproduced the same or uniform account of that incident the danger is that their evidence has been tailored and doctored.”
and submitted that the testimonies of P.W.1 and P.W.4 were tailored and doctored to secure the conviction of the appellants. I am inclined to agree with him. The testimonies of P.W.1 and P.W.4 to the effect that the 4th appellant during the encounter the appellants had with the deceased squeezed the throat of the deceased appear to me to have been tailored and doctored to synchronize with the medical evidence of P.W.2. As P.W.1 and P.W.4 never said so in Exhibits “A” and “B”, a reasonable doubt is created as to whether in fact any of the appellants squeezed the throat of the deceased so as to suffocate him. The law is well settled that for the prosecution to succeed in a charge of murder, it must be proved that the death of the deceased was caused directly or indirectly by the act of the accused. The prosecution must establish not only that the act of the accused could have caused the death of the deceased, but that in actual fact, the deceased died as a result of the act of the accused to the exclusion of all other possibilities. R v. Omoni (1949) 12 WACA 511; R. v. Williams Oledinma 6 WACA 202; R. v. Nwokocha 12 WACA p.453 at 455.
As Aniagolu, J.S.C. stated in the case of Adesujo Akinkunmi & 3 Ors. v. The State (1987) 1 NWLR (pt.52) 608 at 616.
“It is better to err on the side of acquittal when facts presented in a case are inconclusive towards conviction or leave one with a margin of doubt.”
Having regard to the facts and circumstances of this case, I am of the firm view that due to the disparity between the evidence in court of P.W.1 and P.W.4 and their previous statements Exhibits “A” and “B”, in respect to the acts of the appellants resulting in the death of the deceased, thereby raising serious doubts as to whether the deceased was murdered by the appellants, the charge of murder was not proved beyond reasonable doubt.
In the result, this appeal succeeds and is allowed. Accordingly, the conviction and sentence of each of the appellants by the lower court are hereby set aside and in substitution thereof, an order of discharge and acquittal is entered.
Other Citations: (1993)LCN/0147(CA)
