Oduok Daniel Jimmy V. The State (2009)
LawGlobal-Hub Lead Judgment Report
NWALI SYLVESTER NGWUTA, J.C.A.
This is an appeal against the judgment delivered by the High Court of Justice, Akwa Ibom State, Eket Judicial Division on 30/3/06.
Appellant was charged with murder contrary to Section 319(1) of the Criminal Code Cap 31 Vol. 2 Laws of Cross River State as applicable in Akwa Ibom State.
The particulars of the offence charged read as follows:-
“Oduok Daniel Jimmy on the 5th day of December, 1998 at Effoi Village, Eket, in the Eket Judicial Division unlawfully killed Aniefiok Joseph Bassey.”
Appellant joined issues with the state, before Okon J. on 22/3/2000. After calling five witnesses the State closed its case on 7/8/2002.
The appellant testified in his defence and called one other witness, DW2.
The case was adjourned many times for the defence to call its 3rd witness but no 3rd witness came to testify.
On 16/2/2005 learned Counsel for the appellant informed the trial Court that “There is no need to call Dw3. I announce that the case for the accused is closed”. (See page 102 of the records). The Court adjourned the case to 13/4/2005 for Counsel’s written addresses. After further series of adjournments at the instance of learned Counsel for the appellant the case was once more adjourned this time for a rejoinder on point of law.
On the 26/1/05 to which the case was adjourned at his instance to reply on points of law, learned counsel for the appellant was absent and did not write the Court to excuse, or explain his absence on the date he consented to for his rejoinder. The record of the Court, page 119, showed
“The accused Counsel is absent without any explanation to the Court. It may well be he has no rejoinder on point of law to make. It is usually not mandatory that rejoinder on point of law must be made. If there is no rejoinder on point of law none can be made. The case is adjourned to 30/3/2006 for judgment.”
In the judgment delivered on schedule, the trial Court painstakingly and exhaustively reviewed the case of both parties and addresses of Counsel and concluded as follows:-
“On the totality of the evidence before me. I am satisfied that the prosecution has proved its case beyond all reasonable doubt against the accused.”
See page 151 of the records.
Accordingly, the trial Court convicted the appellant and sentenced him to death. Aggrieved, the appellant appealed on two grounds. With the leave of Court seven additional grounds were flied, thus bringing the number of grounds of appeal to 9.
From the 9 grounds of appeal Counsel for the appellant framed the following three issues for the Court to determine:
“(1) Whether the trial Judge was right in relying on the contradictory evidence of the prosecution witnesses in convicting the appellant for murder – Grounds 1 and 2.
(2) Whether or not the trial Judge properly evaluated the “intent to kill” as a mandatory ingredient of the offence of murder before convicting the appellant.
(3) Considering the entire evidence, was the trial Judge right, when he held that the prosecution had proved the offence of murder beyond reasonable doubt.”
In his brief of argument learned Counsel for the Respondent presented three issues for determination:-
“1. Whether there is any material contradiction in the evidence of the prosecution witnesses to fatally affect the case of the prosecution.
2.- Whether the prosecution have proved the offence of murder punishable under Section 319(1) of the Criminal Code Cap. 31 Vol.2 Laws of Cross River State as applicable in Akwa – Ibom State of Nigeria against the appellant.
- Whether the appellant had established any defence to the offence of murder which he was standing trial.”
In his argument in issue one learned Counsel reproduced portions of the evidence of PW1, PW2, Pw3 and Pw4 to demonstrate the contradictions he relies on. He said that the evidence of PW3 contradicts the evidence of PW2 as well as his statement to the Police. In the testimony of PW4 Counsel said under cross-examination the witness said that the corpse of the deceased was received on the 5th of December, 1997 but later said that it was brought on the 5th December, 1998. He characterized the prosecutor’s case as a catalogue of material contradictions. He cited AGBO v STATE (2006) ALL FWLR (PT. 309) 1380 PARA G – H., UBANI v. STATE (2004) FWLR (PT.191) 1533 -1539 AT 1550 PARA A – D, SOWEMIMO v. STATE (2004) 11 NWLR (PT. 885) 515 AT 520 AT 532 PARAGRAPH D – H and, ,urged the Court to resolve issue one in favour of the appellant.
In issue 2 he said that the prosecution has the burden to prove all ingredients of the offence charged. He referred to ADEKUNLE v. STATE (2006) ALL FWLR 332 AT 1452 – 1456 AND 1465 – 1466 PARAGRAPH Q – A for the ingredients the prosecution has to prove in a case of murder. He said that failure to prove even one ingredient is fatal to the prosecution’s case: He cited OMONGA v. STATE (2006) ALL FWLR (PT. 306) 930 AT 933 AND 945 PARAGRAPHD – F, AMAYO v. STATE (2002) FWLR (PT. 91) 1571 AT 1579. Learned Counsel said that the trial Judge did not properly evaluate the evidence before him. He urged the Court to resolve issue 2 in favour of the appellant.
In issue 3 he said that the trial Court was wrong to have relied on a bundle of contradictions in the evidence of prosecution witnesses, conjecture of witnesses and inadequate investigation of the ingredients of the material to convict the appellant. He relied on EKE v. STATE (2006) ALL FWLR (PT.329) 849 AT 856 AND 870 PARAGRAPHS D – F, SHANDE v. STATE (2004) ALL FWLR (PT.223) 1955 AT 1957 – 1958, DIBIE v. STATE (2005) ALL FWLR (PT. 259) AT 1997 – 1958 AND 1969 PARAGRAPH D – E. He said that the prosecution failed to prove the case beyond reasonable doubt and urged the Court to -resolve issue 3 also in favour of the appellant. Learned Counsel urged the Court to allow the appeal, set aside the conviction of, and sentence of death passed on, the appellant. He urged the Court to discharge and acquit the appellant.
Arguing issue one in his brief learned Counsel for the Respondent relied on the case cited by the appellant – AGBO v. STATE (supra) and argued that for the principle of inconsistency to apply it must be shown that:
(a) The inconsistency is material;
(b) the trial judge did not advent to the inconsistency in the judgment;
(c) the inconsistency must be such that reliance on the testimony will result in a miscarriage of justice.
He contended that there is non inconsistency in the evidence of the prosecution witness in a material particular. He relied on ONUBOGU v. STATE (1974) 9 SC 1 and AYO GABRIEL v. STATE (1990) 1 BMLR 32. He said that the apparent contradiction in the evidence of Pw4 was cleared in re-examination and Exhibit ‘C’. He urged the Court to resolve issue one against the appellant and to dismiss the appeal.
In issue 2 Counsel cited STATE v. OGBUBUNJO (2001) 1 SCNJ 86 AT 88, UGURU v. STATE.(20020 4 SCNJ 282 AT 285 and CLARKE v STATE (1986) 4 NWLR(PT. 35) 381 AT 384. He said that the three ingredients listed by the appellant were proved by oral evidence of witnesses who were present and saw what happened at the scene. He referred to the evidence of Pw1 at pages 49 and 51 of the records, evidence of what page 54 of the records, evidence of Pw3 who was following the deceased at the time of the incident and evidence of PW1 and PW2 and others who gave eyewitness account of the incident. He said that the pieces of evidence were not challenged or contradicted and that the trial Court rightly relied on same to convict the appellant. He cited BAKARE v. STATE (1986) NSCC – VOL. 1 (PT. 1) 267 AT 275, OSITA OZOEMENA v. STATE (1998) 10 NWLR (PT.571) 632. Counsel referred to the evidence of the appellant in his defence at page 86 of the records and argued that the voluntary visit of the appellant to the Police to report what he had done is admissible as evidence of his guilt. He relied on ONUNGA v STATE (1976) 3 SC 167.
In issue 3 learned Counsel referred to the eye witness accounts of PW1, PW2 and Pw3. He referred also to Exhibit ‘J’ tendered by the appellant which was brought to the appellant from a private clinic and which the appellant failed to mention in his statements to the Police. He said Exhibit ‘J’ has no probative value not having been issued by a government hospital.
He relied in AJIE v STATE (2001) 7 SCNJ 1 AT 11. He referred to appellant’s statement Exhibit ‘F’ which he said is in conflict with the appellant’s sworn testimony and submitted it is not the duty of Court to pick and choose from conflicting testimonies but should reject both as not reliable. He relied on UMANI v. STATE (1988) NSCC (VOL. 19) P. 137 and MBENI v STATE (1988) NSCC (VOL. 2) P. 231 AT 232. He urged the Court not to disturb the findings of fact based on a careful consideration of the evidence and the defence put up by the appellant both in Court and his extrajudicial statements to the Police. He urged the Court to resolve issue 3 against the appellant. He urged the Court to dismiss the appeal and affirm the judgment of, and the sentence passed on the appellant by the trial Court.
Issue one in the appellant’s brief assumes a fact which the appellant is yet to persuade the Court exists – contradiction in the evidence of the prosecution witnesses. It is akin to working from the answer to the Question.
The intent to kill is not the same as the evidence (facts) establishing the intent. The facts offered in proof of the intent can be evaluated but the Court cannot evaluate the intent itself.
In view of the appellant’s issues one and two, issue three is not essential or necessary. Respondent’s issues one and two in which issue three is accommodated are substantially the same as appellant’s one and two. I will adopt the appellant’s two issues in dealing with the appeal.
In issue One there is need to state that contradiction is of two types – a material contradiction that go to element of the offence charged and miniature contradiction which merely scratches the surface of an inconsequential or innocuous point in the case. See AKINYEMI v STATE (1999) 6 NWLR (PT.607) 449, IBE v. STATE (1997) 1 NWLR (PT.484) 632, BOSAH v STATE (1980) 1 NCR 204, ISHOLA v STATE (1977) NCR 223.
While the former, if proved, is fatal to the prosecution’s case the latter by itself is not a ground to reverse the judgment of the trial Court. The contradictions which do not affect the substance of the issue decided are irrelevant. For the contradictions to be fatal to the prosecution’s case they must be shown to amount to a substantial disparagement of the witness or witnesses concerned, making it unsafe to rely on such witness or witnesses. See ENAHORO v. THE STATE (1965) NSCC (VOLA) 98 AT 113
Bearing the above in mind, I am of the view that the contradictions or discrepancies demonstrated in the appellant’s brief do not go to any element in the charge. They relate to minor peripheral matters that cannot advance the prosecution’s case in one way or the other. Who gave the wrapper to whom to mop the blood, or to cover the body of the deceased, has really no bearing to any element of the offence charged. There is no contradiction or discrepancy in the evidence of a witness who made a statement to the Police to the effect that he saw the deceased pick a matchet, pursue the deceased and cut him on the neck and told the Court that he saw the deceased “collars” on the ground. The later is a direct result of the former. Pw4 said he examined the body on 8/12/98 by 12 noon but later in his testimony said the body was received in the mortuary on 5/12/97. The error in stating 1997 in place of 1998 was corrected by the witness under cross-examination. The defence was not mislead. There is no contradiction or discrepancy in the evidence of the prosecution relating to any of the ingredients the prosecution is bound to prove to sustain a charge of murder. These are:
(a) The death of the deceased.
(b) The act or omission of the accused which caused the death; and
(c) That the act or omission of the accused was intentional with knowledge that the death or grievous bodily harm was its probable consequence ..
See OKEKE v STATE (1999) 2 NWLR (PT. 590) 246 AT 273, ABOGEDE V. STATE (1996) 5 NWLR (PT.448) 270 AT 276.
I see no contradiction, so material as to warrant a reversal of the judgment of the lower Court.
A Court should be wary of the testimonies of witnesses which tally even in inconsequential particulars. Such evidence could be massaged for no two people can reproduce identical details of the same event they observed. One may appreciate and record a point which the other one did not appreciate as material. It is for the trial Court to determine whether the contradiction is material or not. The Court below rightly held that the alleged contradictions are not material to the fact in issue on the facts of the case. There was therefore no need for explanation as such explanations will arise only where there are material contradictions. See IKENOSON v. STATE (1989) 1 CLRN 1 AT 20 PARAGRAPH G: 21 PARA B, NASAMU v. STATE (1976) 6SC 153 AT 158 -159.
I resolve issue one against the appellant.
Issue two is on the burden on the State to prove every element of the offence of murder against the appellant. The three elements have been set out above. The first element is the fact of death of the deceased. There is no dispute as to the death of the deceased Aniefiok Joseph Bassey. PW1 and PW2 gave eye-witness account of the death of the deceased. PW3 was at the scene and helped carry the corpse of the deceased to the house of the appellant’s father from where he had to run for his own life when the appellant threatened lilt is your own that remains”. The body was identified to PW4 as that of Aniefiok Joseph Bassey. See Exhibit ‘G’ wherein the appellant stated the knife went straight to his neck and cut him right inside.
Then he died. He referred to no other than the deceased Aniefiok Joseph Bassey.
The next element is two-fold the cause of death and the manner of death. The cause of death is a medical question and though the PW4 did not offer direct opinion on the issue the cause of death can be inferred from his unchallenged evidence of the very deep cut on the left side of the neck of the deceased which severed some blood vessels. In any case a layman, the appellant himself, established the cause of death in Exhibit ‘G’ “the knife went straight to his neck and cut him right inside. Then he died.” This evidence is as clear as to the cause of death as the evidence of a witness who swore that he saw the head of a victim of murder out off from the body.
The manner of death answers the question – who caused the death of the deceased. The defence did not claim that the very deep cut to the left side of the neck of the deceased was self-inflicted. On the facts found by the trial Court such a claim would have been absurd. The evidence of who caused the death of the deceased is unequivocal. Apart from the evidence of PW1 and PW2 the appellant said he struggled for a matchet with the deceased, and that in that struggle “the knife went straight to his neck and cut him straight inside.” The above statement is contemporaneous with the death of the deceased: “then he died.” There is no doubt from the evidence as found by the learned trial judge that the act of the appellant directly caused the death of the deceased.
In causing the death of the deceased, was the appellant acting in self defence or did he act out of provocation or was the death of the deceased an accident as claimed by the appellant? The eye witness accounts given by PW1, PW2 and Pw3 dispel any notion or suggestion of self-defence or provocation. The issue of accidental death does not arise on the facts found by the trial Court and the facts so found from the evidence before that Court are in my humble view unassailable. It is not a case of bruises or superficial wounds. It is a very deep cut on the left side of the neck of the deceased, so deep that it severed some blood vessels as stated by PW4 whose evidence on the issue went unchallenged. Above is inconsistent with accident, rather it is a demonstration of a deliberate act with the intention to kill the deceased or cause him a grievous bodily harm. The knife could not by itself have gone to the neck of the deceased and/or cut him right inside. The knife could only have been placed on the left side of the neck of the deceased and only a deliberate and substantial pressure exerted on it by the appellant could have plunged the knife into the neck of the deceased and plunged it deep enough to severe some blood vessels and cut the deceased right inside as stated by the appellant in Exhibit ‘G’, Exhibit ‘G’, in my humble view, corroborates the prosecution’s evidence in the three elements it has to prove to sustain the charge of murder against the appellant. The Court is bound to accept the prosecution’s evidence as truthful. See NANA YAFRO MOSI v NANA BUSUMUHU & ORS (1991) 1 WASC 361 AT 366 (SUPREME COURT OF GHANA), BANAHENE v ADINKRA (1976) 1 GLR 346 SUMPREME COURT OF GAMBIA. The law imputes death as the consequence of the act of the appellant. On the facts the law will not inquire whether the appellant actually did foresee and thus intend the consequences of his act. The test of foresight is not what the appellant foresaw but what a man of reasonable prudence would have foreseen. See STATE v ABU (1973) 3 ECSLR (PT. 1) 175 AT 178. On the facts found by the learned trial Judge on the evidence before him there is no possibility of the death of the deceased by causes other than that of the appellant. See IGAGO v STATE (1999) 6 NWLR (PT.608) 568, R v. OLEDINMA (1940) 6 WACA 202, R v ONYENANKEYA (1964) NMLR 34. However the defence of accident raised by the appellant in some statements he made to the police and in his oral evidence deserves some special consideration for what it is worth.
In Exh. F made on 7/12/98 the appellant said” When Aniefiok arrived he threw the knife at me and I held him and struggled with him to collect the matchet, it injured my right hand also during the process the knife went straight to his left neck and cut him right inside. Then he died. The degree of force that cut Aniefiok, was who by struggling not intentional. But what has happened is through mistake.” In Exh. G dated 14/12/98 he said “when he cut me on my right hand then I got hold on the matchet and he struggled two of us both the matched during the struggle the force of the matchet cut him on the neck, he failed down on the ground, then I left him immediately and went home. I do not know whether he died on spot because I ran away.”
In Exh. E dated 8/1/99 he wrote “When Aniefiok Joseph Bassey came close to me with the matchet he was holding and matchated me on my right hand the force of the matchet cut Aniefiok on his neck. When I saw that matchet cut Aniefiok Joseph Bassey on his neck I ran away to our house”.
In his evidence in court the appellant swore inter alia, “The deceased struggled out of the grip of those people and came to the right hand side of the road and cut me on my right hand. When he cut me I struggled with him for the matchet and while still struggling for the matchet the matchet cut him on the neck. When we separated after the matchet cut I ran away and he ran away”.
According to the appellant in Exh. F the deceased died on the spot, an event he attributed to mistake. In Exh. G the appellant ran away when the deceased fell down. Appellant did not know whether the deceased died on the spot. In Exh. E, the appellant ran away when he saw the matchet cut on the deceased. In his first statement to the police the appellant was emphatic that the deceased died on the spot, in the second statement the deceased fell down and the appellant ran away and in the 3rd statement.
The deceased was cut and the appellant ran away.
In all the statement appellant said he was cut on his right hand in the struggle for the matchet. However in his sworn testimony appellant said the deceased cut him in his right hand, a deliberate act as against being cut in the struggle for the matchet. Appellant introduced a new element that he ran away and the deceased ran away. There were unexplained conflicts in Exhs. F, G and E. Also there are unresolved conflicts between the extra-judicial statements to the police on one hand and his sworn testimony. In AGWU & ORS. V THE STATE (1965) NWLR 18 at 20, Onyeama, JSC, speaking for the apex court said “If it appears that a witness had formerly said in written statement the contrary of what he later swore in evidence (unless the reason of his having done so was satisfactorily accounted for) his evidence should not have much weight with a jury.” See also R v. GOLDER(1960) 3 ALL ER 475.
Appellant did not make a confessional statement as to give the court a choice of believing the confessional statement or the sworn evidence in conflict with the confessional statement. See EGBOHONOME v THE STATE (1993) 7 NWLR (Pt.306) 383. The evidence of the appellant as DW1 is inconsistent with his previous extra judicial statements – Exhs. F. G and E. Such evidence is unreliable and the statements Exhs. F, G and E have no probative value. See EGBOHONOME v. THE STATE (1993) 7 NWLR (Pt. 326) 383; R. v UKPONG (1961) ALL NLR 25; JIZURUMBA v THE STATE (1976) 3 SC 89; STEPHEN v THE STATE (1986) 3 NWLR (Pt. 46) 976.
A common factor in the extra judicial statements of the appellant Exhs. F, G and E and his sworn testimony is the assertion that the matchet cut the deceased on the left side of his neck. A matchet is an inanimate object. It is incapable of cutting anyone or anything by itself. It can do no harm on its own volition as it has none. The matchet did not cut, stab or plung into the neck of the deceased by itself. The matchet was only an instrument of destruction employed by the appellant, deliberately, to terminate the life of the deceased.
Appellant claimed that the slaughter of the deceased was not intended and that it was a mistake. The onus is on him to prove what he asserted and he failed so to do. See Sections 137 and 149(c) of the Evidence Act and UBA PLC & ANOR v IDRISU (1999) 7 NWLR (Pt. 609) 105:
In the circumstances of this case the threat issued by the appellant to the PW3 who brought the corpse of the deceased to the house of the appellant’s father’ “it is your own that remains” -eloquently attests to the intentional killing of the deceased as well as intent to kill the PW3 also. If the appellant had the cut he claimed, the police would have taken him to a government medical facility for treatment and medical report. His choice of private medical facility for treatment and medical report cast serious doubt on the probative value of Exh. J. Exh. J. was meant to bolster a case devoid of substance. It is unreliable. I resolve issue two also against the appellant.
I am constrained to comment on what purports to be introduction and statement of facts in the appellant’s brief. Introduction and statement of fact should be nothing other than what they claim to be. They should be couched in the cold-clinical neutrality traditional of learned Counsel, reserving the arguments and conclusions for the issues in the appeal.
Learned Counsel for the appellant may have some justification in the blistering comment on the conduct of his learned friends who appeared at various times for the appellant in the Court below. From the records the learned trial Judge, bearing in mind that this is a death penalty case indulged the defence even when there was no reason or cogent reason for adjournment. On 9/6/05 the defence counsel asked for and was granted a continuance in the middle of his address “to look at my records again before I continue with the address”. See page 107 of the records. On 21/7/05 to which the matter was adjourned for continuation of his address learned Counsel claimed “we were not able to tidy up in our Chambers our further address in this case.” See page 108 of the records. The case was adjourned for the continuation of the defence Counsel’s address to 18/8/05 on which date learned defence Counsel went into record thus
“I urge the Court to take the accused’s Counsel address so far as the full address on behalf of the accused. We have nothing else to say in our address.”
See page 109 of the records. The prosecution concluded its address on 6/12/05 and as usual the defence asked for “a date to rejoin on point of the law.” See page 118. The case was adjourned at the instance of the defence Counsel to 26/1/06. Come 26/1/06 defence Counsel was absent and did not write to the Court to explain or excuse his absence. The Court rightly in my view and based on the antecedents of defence Counsel reasoned that there was no rejoinder and adjourned the case for judgment. With respect there is no grounds for the learned Counsel for the appellant to implicate the learned trial Judge in his perceived conspiracy with the defence Counsel to lead the accused to the gallows in his commit that “to perfect the act of the defence Counsel leading the accused to the gallows, the Honourable learned Judge Justice exhausted his patience and adjourned for judgment foreclosing the defence rejoinder in such a charge as murder and what more, he convicted the appellant as charged.” (see paragraph 4 of the appellant’s brief of argument). If learned Counsel had faith in his allegation that His Lordship of the trial Court conspired with defence Counsel to railroad the appellant to the gallows, he would have raised it as an issue in the appeal. He would have made his alleged foreclosure a ground of appeal and he would have been required to show how the foreclosure adversely affected the appellant. It is a case of misplaced and ineffective aggression against the learned trial Judge whose conduct of, and judgment in, the case I find commendable.
In the final result having resolved the two issues against the appellant I hold that the appeal is devoid of merit. It is hereby dismissed. I affirm the judgment of the learned trial Judge.
Appeal dismissed.
Other Citations: (2009)LCN/3276(CA)
