The State V. Idapu Emine & Ors. (1992)
LawGlobal-Hub Lead Judgment Report
KAWU, J.S.C.
The respondents herein and another person were jointly charged under S.319(1) before the High Court of Rivers State sitting at Degema with the murder of the Amadabo of Obonoma Chief Solomon Oponogina. The particulars of the charge alleged that “on or about the 12th day of September, 1987 at Orupiri Creek in Obonoma Town in Degema Judicial Division murdered Solomon Obonogina”. They pleaded not guilty to the charge.
At the trial, the prosecution called a number of witnesses to testify in support of the charge. All the accused persons testified in their defence and called two additional witnesses. The prosecution’s case was based substantially on the evidence of P.W.1 – Moses Solomon, who claimed to be an eye witness of the event that led to the death of the deceased. He testified in part at the trial as follows:
“I know the accused persons. They are Obonoma people. On the 12th September,1987 I was fishing in Orupiri creek at about 7.30 a.m. At that time I was making a trap hook in the swamp. I then heard a voice “Afete Afete” in Kalabari meaning in English Language “I am dying, I am dying” I moved nearer the voice. I then saw 7 people handle one man inside a canoe along the swamp. Two of the seven people held the neck of the man they were handling. Two others held one hand each of the man they were handling. Two others held the foot of the man, one leg each, the 7th held the penis. I know the 7 people. If I see them I will recognise them. They are the accused persons in dock. The two people who held the neck broke the neck of their victim. Those who held the hands of the victim broke the hands and those two who held the legs, broke the legs. The 7th who held the penis drew the penis. The accused then threw the man inside the water. I know the man they handled, and threw into the water. I do not know his name but he was Amadabo of Obonoma. When accused saw that the man could not get out of the water, they moved away. I then left the place from where I saw the accused and went back to Obonoma Town and got there at 9.0’clock in the morning. I was afraid to tell anybody what I saw. I later saw a man who is not a native of Obonoma and told him what I saw. The man showed me a picture which identified him as a policeman. The policeman then brought me here at Degema Police Station. I made statement to the Police.”At the end of the trial and after the addresses of both counsel, the learned trial Judge reviewed the evidence adduced and came to the conclusion that the prosecution had established their case against all the accused persons beyond reasonable doubt. He therefore convicted them as charged and sentenced them to death.
Being dissatisfied with the judgment of the learned trial Judge, the respondents appealed to the Court of Appeal on a number of grounds. Having given a very careful consideration to all the issues raised in that appeal, the Court of Appeal. In the lead judgment of that Court delivered by Onu, J.C.A. on the 14th day of June, 1991 with which Jacks, J.C.A. and Omosun, J.C.A. (as he then was) agreed, allowed the appeal, entered a verdict of not guilty in favour of all the respondents and acquitted and discharged all of them. This appeal is from that decision.
Four grounds of appeal were filed against the judgment of the Court of Appeal as follows:-
“Grounds of Appeal
(i) The judgment of the Court of Appeal was unwarranted, unreasonable and cannot be supported by the evidence before it as per record.
Particulars of error
The Court of Appeal discharged and acquitted the respondents when it came to a wrong conclusion that the prosecution did not prove its case beyond reasonable doubt more particularly that the evidence of P.W.1 the sole eye witness to the murder was doubtful and unreliable.
(ii) The Court of Appeal erred in law when it held that the evidence of P.W.1 is not capable of belief thereby failed to apply the principles laid down in the case of Bayo Adelumola v. The State (1988) 3 SCNJ (Pt.1) Pp.74-75; (1988) 1 N.W.L.R, (Pt. 73) 683.
Particulars of error
The Court of Appeal failed to belief (sic) the evidence P.W.1 which was rightly believed by the Court below when the said P.W.1 ‘s evidence was not contradicted by the defence.
(iii) The Court of Appeal erred in law when it interfered with the findings of the Court below where these findings were reasonably substantiated.
Particulars of error
The Court of Appeal failed to advert its mind to the totality of the evidence on record more so it failed to advert its mind to the preceding and subsequent events surrounding the case of murder.
(iv) The Court of Appeal erred in law in acquitting, discharging and setting aside conviction and sentence of the respondents where the said respondents had no valid defence in law.”
Both parties filed their briefs of argument which they adopted at the hearing of the appeal after they had made some oral submissions in expatiation of their briefs. The appellant in its brief of argument formulated the following questions for determination in this appeal:-
(1) “Whether on the totality of the evidence as per record, the prosecution/Appellant has not proved its case against the respondents beyond reasonable doubt in accordance with Section 137(1) of Evidence Act.
(2) Whether evidence of P.W.1 was reliable, cogent, coherent and unimpeachable.
(3) Whether the conduct of P.W. 1 gave room for a reasonable doubt see Adelumola v. State (1988) 1 NWLR (Pt.73) 683 at 691.
(4) Whether respondents counsel could effectively challenge such an unimpeachable evidence at the appellate Court.
(5) Whether the judgment of Court of Appeal was perverse when it set aside the judgment, conviction and sentence passed on the respondents on the 30th January, 1990 by the trial Judge, Justice E. Olukolo at Degema High Court Rivers State basing its judgment on the evidence of P.W.1 which was only challenged at the Court of Appeal.”
Learned counsel to the respondents, in their brief of argument formulated three issues for determination in this appeal as follows:-
“(1) Was the Court of Appeal right in setting aside the conviction and sentence of the Respondents on the basis that the prosecution which relied heavily on the evidence of P.W.1 failed to prove its case beyond reasonable doubt.
(2) Was the Court of Appeal right in interfering with the learned trial Judge’s findings of fact.
(3) Whether the Court of Appeal was right in setting aside the conviction and sentence of the Respondents without considering the defence of the Respondents.”
Having given very careful consideration to the grounds of appeal filed and the submissions of both counsel in this appeal, I am of the view that the resolution of issues numbers one and five in the appellant’s brief will cover all the points urged on this Court by both parties, and I will accordingly proceed to consider these two Issues.
It is the contention of the learned counsel to the appellant that on the totality of the evidence adduced at the trial, the appellant had proved its case beyond reasonable doubt as required under S.137(1) of the Evidence Act. It was the submission of the appellant that the evidence of P.W.1, being primary evidence, contained all the vital elements which made it worthy of belief in accordance with the decision in the cases of Bayo Adelumola v. The State (1988) 1 NWLR (Pt.73) 68, and Madagwa v. The State (1988) 5 NWLR (Pt.92) 60 at 68, and that the learned trial Judge was right in basing his decision on that evidence. It was submitted that the evidence of P.W.1 showed clearly that the witness saw all the respondents, whom he had known before, strangulating the deceased on the day of the crime and that he, (P.W.1) on that same day reported what he saw to a policeman on the same day at about 1.p.m. It was further submitted that the learned trial judge was perfectly right in believing the evidence of P. W.1 which evidence was cogent, coherent and was practically unchallenged in cross-examination. The appellant drew the attention of the Court to the defence of alibi put up by each respondent at the trial and submitted that as each respondent failed to prove the alibi set up, the learned trial Judge was right in rejecting their defence.
It was the submission of the learned counsel to the respondents that the Court of Appeal was right in reversing the decision of the trial Court which was based solely on the unreliable evidence of P.W.1. While the respondents agreed with the proposition of law in Okosi v. The State (1989) 1 NWLR (Pt.100) 642 that “one solitary witness, if believed by the Court, can establish a criminal case even if it is a murder charge,” it was their contention that in this particular case, the evidence of P.W.1 fell far short of what was required in law to establish the guilt of the accused persons. In the first place, it was submitted that the evidence of P.W.1 to the effect that while all the accused were committing the various criminal acts against the deceased, they all faced the same direction should not have been believed by the trial Judge. As to the veracity of P.W.1’s testimony, it was also submitted that his evidence that he reported the incident on the same day to a Policeman who took him to the Degema Police Station where he made a statement, should also have been rejected by the trial Judge as that evidence was clearly contradicted by the evidence of P.W.2 and P.W.6. In this regard it was pointed out that the evidence of P.W.2 was that when he reported the Incident to the Police on that same day “the Police did not tell me that an earlier report of the killing of Amadabo had been made when I wrote my statement to the Police. I do not know whether anybody had reported before me”. It was further pointed out that the evidence of P.W.6 one of the officers investigating the case was that when he took over the investigation of the case in November 1988, nobody mentioned the name of Solomon (P.W.1) to him. He said that it was in January 1988 that “Solomon was brought to Port Harcourt to claim to us that he saw all that happened.”
Still on the unreliability of P.W.1’s testimony, it was submitted that the statement which he claimed he had made to the Police at Degema was never tendered at the trial and neither was the Policeman to whom he alleged to have reported the incident called to testify at the trial.
In the first place this witness swore that he saw all the accused committing the offence from his hiding place and described, in detail, what each accused did to the deceased. But under cross-examination his evidence was that at the time that he saw the accused, none of them was facing his direction. He said the accused “were all busy bending down at the time I saw them. None of them faced me.” If none of the accused persons faced the direction of his hiding place when committing the offence, he could not have possibly seen their features, and in the circumstances his claim that the respondents were the persons he saw committing the crime should not have been accepted by the learned trial Judge as it was not free from doubt.
Secondly, the evidence of this witness that he reported the incident at the Degema Police Station on the same day was contradicted by that of two other witnesses called by the prosecution. P.W.1 in his evidence said that after he had witnessed the murder he returned to the village. He did not mention a word about the incident to any member of the deceased family whom he had known before because he said he was afraid to do so. However, he claimed that he reported the matter to a person in the village who identified himself as a Policeman, and who took him to Degema Police Station on that same day where he lodged a report.
This evidence was contradicted by the evidence of P.W.2 and P.W.6. The evidence of P.W.2, a relation of the deceased who discovered the body and reported the matter to the Police at Degema, was that when he made his report, “the Police did not tell me that an earlier report of the killing of Amadabo had been made when I wrote my statement to the Police. I did not know whether anybody had reported before me:’
Again the evidence of P.W.6 – one of the Police officers who investigated the case, did not support the claim of P.W.1 that he reported the matter at the Degema on the day of the incident.
In this regard, P.W.6 in his evidence said as follows:-
“The matter was transferred to us in November, 1987. There was no mention made of Solomon P.W.1, when we came to Degema to collect the suspects and the paddle:’
There are obvious contradictions in the evidence of the prosecution on vital issues which the learned trial Judge should have taken into account before reaching his decision on the guilt of accused. The principle is well established in our criminal law that any doubt as to the guilt of the accused, arising from the contradictions in the evidence adduced by the prosecution on material issues must be resolved in favour of the accused. See Igbo v. The State (1975) 11 S.C.129. In this case, in my view the evidence of P.W.1, on which the learned trial Judge heavily relied, was not free from doubt. In my view the conviction of the accused was based on improper evaluation of the evidence adduced, and in the circumstances, the Court of Appeal was right in selling aside their conviction.
As to whether the Court of Appeal was right in interfering with the trial Court finding of facts, while it is trite that an Appellate Court will not normally disturb the finding of facts of a trial Court unless such findings are not supported by the evidence, there is nothing preventing an Appellate Court from doing so when the evidence in support of such finding of facts does not show that degree of certainty that must be established in a criminal trial. See Queen v. Ogodo (1961) 12 NSCC 311; (1961) 2 S.C.N.L.R, 366. In this case, I am satisfied that the Court of Appeal was perfectly right in interfering with the learned trial Judge’s finding of facts.
Having given careful consideration to all the submissions made in this appeal. I have no hesitation in coming to the conclusion that none of the points raised is weighty enough to justify our interfering with the judgment of the Court of Appeal. Consequently the appeal fails in its entirety and it is accordingly dismissed. The judgment of the Court of Appeal allowing the respondents’ appeal and setting aside their convictions and the sentences imposed on them, is hereby upheld.
A. B. WALI, J.S.C.: The accused persons were arraigned before the High Court of Degema in Degema Judicial Division. Rivers State, charged with the following offence-
“STATEMENT OF OFFENCE
MURDER contrary to S.319(1) of the Criminal Code of Eastern Nigeria 1963 as adopted in the Rivers State.
PARTICULARS OF OFFENCE
Idapu Emine, Mesiah Orupinjiye, Dawari Brown, Hamilton Joseph Standfast Beteboye, Ezekiel Orubia and Lloyd Tobins on or about the 12th day of September, 1987 at Orupiri Creek in Obonoma Town in Degema Judicial Division murdered Solomon Obonogina (M).”
The accused persons pleaded not guilty and a plea to that effect was entered in respect of each accused person and the trial proceeded. At the end of the evidence adduced by both the prosecution and the defence, and addresses by counsel, the learned trial Judge Olukole J, in a judgment of 67 pages, found that the prosecution had proved its case against the accused persons and convicted them as charged.
Not satisfied with the judgment of the High Court, the accused persons appealed against their conviction, and sentence to the Court of Appeal, Port Harcourt Division. The Court of Appeal in its unanimous decision, found that the prosecution did not prove its case against the accused persons. It therefore set aside the verdict of the trial court and in place thereof, substituted a verdict of acquittal and discharge in favour of all the accused persons.
The State has now appealed to this Court against the verdict of acquittal and discharge. As required by the Rules of this Court, both parties to the appeal filed and exchanged briefs.
In the brief of arguments filed by the State, five issues were formulated for determination. The defence also formulated three issues for determination in its brief.
Issues 1 and 2 in the brief filed by the defence are covered by issues 1 to 5 of the brief filed by the State.
Henceforth, the State and the defence shall be referred to as the appellant and the respondents respectively in this judgment.
In my view, the issues for determination in this appeal can be summarized as follows-
“Whether, and having regard to the evidence of P.W.1. the star and only eye witness in this case, it could be said that the prosecution had proved its case as required by S.137(1) of the Evidence Act.”
Before examining the evidence of P.W.1, I think it is necessary to state the facts involved in this case as put forward by the prosecution.
On 12/9/87 at about 7.30 a.m. P.W.1 was fishing in Orupiri Creek. At that time he heard a voice shouting in Kalabari language – “afite, afite”, meaning “I am dying. I am dying”. When he moved nearer to the direction the shouting was coming from, he saw 7 people in a canoe along the swamp. They were holding down a man inside it. P.W.1 said two of the men were holding the neck of their victim: two holding his hands and the other two holding his legs. The 7th person was holding the penis of the victim. After strangulating the victim whom P.W.1 recognised at the lime to be Amadabo of Obonoma, they let his body down into the water and moved away. He had previously known all the accused persons to he living in Obonoma where he was also living he fore moving to Agada II Abua, and that was why he was able to identify each and everyone of them.
P.W.1 said after the incident, he returned to Obonoma around 9.a.m., the same day hut was unable to report the incident to anyone as he was afraid. But later in the day, he saw a man who is not a native of Obonoma and reported to him what he saw. The man identified himself to P.W.1 that he was a policeman and he took him to Degema Police Starion where he (P.W.1) made a statement.
Then on 22/7/88 P.W.1 was taken from Obonoma to State C.I.D. Headquarters, Port Harcourt where, at different identification parades held, he identified all the present respondents as those he saw on 12/9/87 strangulating the deceased at Orupiri Creek.
In his evidence before the Court, P.W.1, the only eye witness to the incident, narrated in detail what he saw each of the respondents do to the deceased. He said
“I then saw 7 people handle one man inside a canoe along the swamp. Two of the seven people held the neck of the man they were handling. Two others held one hand each of the man they were handling. Two others held the foot of the man, one leg each, the 7th held the penis. I know the 7 people. If I see them I will recognize them. They arc the accused persons in dock. The two people who held the neck broke the neck of their victim. Those who held the hands of the victim broke the hands and those two who held the legs, broke the legs. The 7th who held the penis drew the penis. The accused then threw the man inside water. I know the man they handled, and threw into the water. I do not know his name but he was Amadabo of Obonoma. When accused saw that the man could not get out of the water, they moved away.”
Under cross-examination, P.W.1 said –
“The accused were all busy bending downwards at the time I saw them. None of them faced me. I stood while I was watching the accused,”
The learned Justice of the Court of Appeal, Onu, J.C.A, after examining the evidence of P.W.1 vis-a-vis the remaining evidence adduced by the prosecution, found it deficient and said –
“In the instant case, where the prosecution’s case was founded and depended solely and substantially on the evidence of P.W.1 (Moses Solomon) it must stand or fall depending on the veracity or falsity of his evidence. This witness who claimed to know all the appellants before the Commission of the offence similarly claimed knowledge of the deceased and his family very well. At page 38 of the Record he said under cross-examination:
“I know the family of the deceased very well. I did not tell them anything when I came back at 9 a.m. from the Creek. In my statement to the police I did not describe the persons I saw strangle the victim.’
The next logical question, is, when did P.W.1 make his statement and how did he perform with regard to the description of the appellants he claimed he saw commit the offence in day light on the day of the incident In answering this composite question the evidence of P.W.6, one of the investigating police officers, is significant and it is illuminating. He said at p.57, line 25-29 of the
Record-
‘It is about January 1988, that Solomon (P.W. 1) was brought to Port Harcourt to claim to us that he saw all that happened. The matter was transferred to us in November, 1987. There was no mention made of Solomon when we came to Degema to collect the suspects and paddles.’
From the above extract, it is clear that P.W.1 could not have made any statement to the police earlier than January,1988 that is, after the matter was transferred to the Police in Port Harcourt from Degema. Be it noted that the offence took place on September 12, 1987. And in relation to the description of the appellants by P.W.1, hereunder is what he said at page 39 of the record under cross-examination:
‘The accused were all busy bending down at the time I saw them. None of them face (sic) me.’
From the foregoing, it cannot be said with all sense of honesty or any degree of accuracy that P.W.1 saw the features of those whom he claimed to have seen. And to make matters more compounded, when asked why he did not tell anyone of what he saw. P.W.1 said that he was afraid. Yet, he had the courage to tell a complete stranger, who turned out to be a policeman of what he claimed to have seen happen. Furthermore, the policeman to whom he told of the incident neither was called to testify nor was his statement allegedly recorded on September 12. 1987, tendered at the trial. This became more compelling as it was shown from the totality of the evidence adduced before the trial court that a heavy cloud of doubt had descended on the case by reason of the behaviour and acts of omissions on the part of P.W.1….”
I entirely share the views expressed by the learned Justice and also completely agree with his findings on the evidence of P.W.1 on which the appellant substantially relied to prove its case. It is the pillar evidence in the case. There was no mention by P.W.6 in his evidence that the incident was ever reported at Degema Police Station by P.W.1 in company of an unknown policeman. Nor did P.W.2 mention anything like that in his evidence. There was no effort by the appellant to even put in evidence the statement purported to have been made by P.W.1 at Degema Police Station when he was taken there on 12/9/87, let alone calling the unknown policeman that took P.W.1 there.
Another glaring weakness in the prosecution’s case is related to the position the respondents were in the boat at the time they were perpetrating their criminal acts. P.W.1 said that they were all busy “bending downwards”. If that was so, it could not have been possible for P.W.1 to see all their faces since he must be hiding from a direction in which he could be able to see the faces of some of them. This would also depend on the degree of the “bending downwards.” There was no evidence that he saw their faces before they bent downwards to strangle the deceased or that he identified them by their voices. That is why I find the following questions posed by the respondents in their brief or arguments to be pertinent –
“(a) Is it possible or highly probable that in the course of doing violence to the different parts of the deceased i.e. head, legs, hands and penis all the men performing the act (and hurriedly too as natural) at one and the same time will face the same direction
(b) Is it possible or highly probable that the persons strangulating the neck, will face the same direction as the person twisting the penis
(c) Is it possible or highly probable that the persons doing violence to the hands will face the same direction as the persons doing violence to the legs, penis and neck”
In my respectful view the answers to questions (a) to (c) (supra) will be in the negative. P.W.1 neither gave the names of the respondents or their description at the earliest opportunity to wit on 12/9/87 when he was taken to Degema Police Station, or if he did, the prosecution had deliberately withheld such important and material evidence from the trial court. The provision of section 148(d) of the Evidence Act will certainly apply againist the prosecution in favour of the respondents. See Mandilas and Karaberis Ltd. & Anor. v. I.G.P. (1958).3 F.S.C. 20: (1958) S.C.N.L.R, 335. Adeyemi v. Commissioner of Police (1961) All NLR, 387. Commissioner of Police v. Tijani Alao (1959) WRNLR 39 and Abudu v. The State (1984) 16 NSCC 28: (1985) 1 N.W.L.R. (Pt. 1) 55. Opayemi v. The State 1985) 2 N.W.L.R, (Pt. 5) 101.
With these lapses in the evidence of P.W.1, it cannot be said that the case of prosecution was proved against the respondents beyond reasonable doubt. See Onugbogu v. The State (1974) 9 S.C.: Okogbue v. Commissioner of Police (1965) NMLR 232: R. v. Lawrence (1932) 11 NLR 6. There are apparent inconsistencies between the evidence of P.W.1 and that of other prosecution witnesses, particularly P.W.2 and P.W.6, on material facts which were not resolved by the prosecution. It is not the duty of the judge to provide explanation to such inconsistencies. His duty is to act on the evidence, as presented before him, in his capacity as an independent and impartial arbiter. He is not to supply or provide any explanation to any inconsistency in such evidence. See Onubogu v. The State (1974) 9 S.C. 1: Mohammed v. The State (1991) 5 NWLR (Pt.192) 438 and Ibrahim v. The State (1991) 4 NWLR (Pt. 186) 399.
In the circumstances of this case, the Court of Appeal was right in setting aside the findings of fact by the trial court as it is perverse having regard to the evidence adduced. See Isa v. The Queen (1961) 12 NSCC 304: (1961) 2 S.C. N.L.R, 347, The Queen v. Ogodo (1961) 12 NSCC 311: (1961) 2 S.C.N.L.R, 366 and Onuoha v. The State (1989) 2 NWLR (Pt.101) 23.
It is for these and the more detailed reasons contained in the lead judgment of my learned brother Kawu, J.S.C. which I have read before now and hereby adopt as mine, that I too find that this appeal is lacking in merit. It is accordingly dismissed. The judgment of the Court of Appeal is hereby affirmed.
SC.248/1992
