The State Vs Emine & Ors (1992)

LawGlobal-Hub Lead Judgment Report

S. 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.

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Other Citation: (1992) LCN/2564(SC)