3PLR – OKON ETIM AKPAN V. THE STATE

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]

OKON ETIM AKPAN

V.

THE STATE

3PLR/2014/173 (CA) 

Court	COURT OF APPEAL
Date	31st March, 2014
Practice Area	CRIMINAL LAW
Originating Court	HIGH COURT OF CROSS RIVER STATE, AKAMKPA JUDICIAL DIVISION
Citation(s)	CA/C/188C/2012, (2014) LPELR-22741(CA),
Judge(s)	MOHAMMED LAWAL GARBA, UZO I. NDUKWE-ANYANWU, ONYEKACHI A. OTISI, JJCA
Representation	Sonny O. Wogu, Esq. for Appellant Peter Sunday Bisong, Esq., Director, Public Prosecution, Ministry of Justice, Calabar for Respondent
Main issue(s)	CONSTITUTIONAL LAW:- Fair hearing – Presumption of innocence CHILDREN AND WOMEN LAW: Murder charge – Husband as accused person – Evidence of estranged wife against accused CRIMINAL LAW – MURDER:- Whether court can convict on the uncorroborated testimony of a tainted witness – Who can be regarded as a tainted witness – Iingredients prosecution must prove beyond reasonable doubt – Number of witnesses the prosecution is required to call in order to succeed CRIMINAL LAW:- Murder – Evidence effect of lies on conviction of accused – Whether medical evidence as to the cause of death is essential in all cases of homicide PRACTICE AND PROCEDURE – EVIDENCE:- Discharge of burden of proving the guilt of an accused person – Nature and meaning of corroboration – Hearsay evidence – When evidence is said to be hearsay and inadmissible – Presumption of intention of natural consequences of acts – Person – Tainted witness – Whether the mere fact that there is any form of relationship between a witness and the accused person in a murder trial does not reduce the credibility of the witness WORDS AND PHRASES:- “Proof beyond reasonable doubt’
Cases referred to Abogede v. State (1996) 5 NWLR (Pt. 448) 270 Adelumola v. State (1988) 1 NSCC 165 Adelumola v. State (1988) 1 NWLR (Pt.73) 683 S.C Afolalu v. State (2010) 6 – 7 MJSC 187 Agbanyi v. State 1 NWLR (PT 369) 1 Aiguoreghian v. State (2004) 3 NWLR (PT 860) 367 Ajayi v. State (2013) 2-3 MJSC (PT 1) 59 Ajisogun v. State (1998) 13 NWLR (PT 581) 236 Alabi v. State (1993) 7 NWLR (PT 307) 511 Alabi v. State (1993) 7 NWLR (PT 307) 511 Arabamen v. The State (1972) 4 SC 35 Damina v. State (1995) 8 NWLR (Pt. 415) 513 Edoho v. State (2010) 4 MJSC (PT. 1) 1 Enewoh v. The State (1990) 4 NWLR (Pt. 145) 469 Enowoh v. The State (1989) 2 NWLR 98 (99) Garba Mailaiyi & anor. v. The State (1968) All NLR 117 Garba v. The State (2000) FWLR (Pt.24) 1448 Gira v. State (1996) 4 NWLR (Part 443) 375 Haruna v. Police (1967) NMLR 145 Hycienth Egbe v. The King 13 WACA 105 Ibikunle v. State (2007) 1 S.C. (PT. 11) 32 Idiok v. State (2008) 6 MJSC 36 Ifejirika v. State (1999) 3 NWLR (PT 593) 59 Ifejirika V. The State (1999) 3 NWLR (Pt. 593) 59 Igabele v. State (2006) 5 MJSC 96 Ijioffor v. State (2001) 9 NWLR (PT 718) 371 Ishola v. State (1978) NSCC 499 Ishola v. The State (1965) NMLR 85 John Agbo v. State (2006) 1 S.C  (PT. II) 73 Mailayi v. The State (1968) All NLR 117 Mohammed v. state (1991) 5 NWLR (PT 192) 438 Moses v. State (2006) 4 S.C. (Pt. 11) 30 Nkebisi v. State (2010) 1-2 MJSC 78. Nwaeze v. State (1996) 2 NWLR (Part 428) 1 Ogba v. State (1992) 2 NWLR (Part 222) 164 Ogba v. State (1992) 2 NWLR (Pt.222) 164 Ogbu v. State (1992) 8 NWLR (Pt. 259) 255; [1992] 3 NSCC 178 Ogidi v. the State (2005) 1 SC (Pt.1) 98 Ogundiyan v. State (1991) 1 NSCC 448 Ogunlana v. The State (1995) 5 NWLR (Pt. 395) 266 Ojo v. Gharoro (2006) 10 NWLR (PT 987) 173 Ojo v. Gharoro (2006) 2-3 S.C. 105 Okabichi v. State (1975) 3 S.C. (REPRINT) 96 Okara v. The State (1988) 5 NWLR (Pt.94) 255 Okoro v. State (1998) 14 NWLR (Pt 584) Okoro v. The State (1988) 5 NWLR (Pt. 94) 255 Okpere v. State (1971) 1 ALL NLR 1 Olalekan V. The State (2001) 1 MJSC 159 Omogodo v. State (1981) NSCC 119 Onah v. State (1985) 3 NWLR (PT 12) 236 Osetola v. State (2012) LPELR-9348 (SC) Princewill v. State (1994) 6 NWLR (Pt. 353) 703 R v. Enahoro (1964) NMLR 65 R. v. Laoye 6 WACA Tijani v. COP (1994) 3 NWLR (PT 335) 692 Ubierho v State (2005) 7 MJSC 168 Uguru v. State (2002) 9 NWLR (Part 771) 90 Ukoh v. The State (1972) 5 S.C. 135 Uyo v. Attorney General, Bendel State (1986) 1 ALL NLR 106 William Idahosa v. The State (1978) 2 LRN III Yahaya v. State (2005) 1 NCC 120

 

MAIN JUDGMENT

ONYEKACHI A. OTISI, J.C.A. (Delivering the Leading Judgment):

This is an appeal by the Appellant against the Judgment of the High Court of Cross River State, Akamkpa Judicial Division, delivered on 21st November, 2008 in Charge No. HK/1C/2006 in which the said trial court convicted the Appellant for the murder of one Ekpenyong Ayi Ekpenyong and sentenced him to death by hanging.

 

It was alleged that on 4th December, 2004, the Appellant, in the course of quarrelling with the deceased, “took the deceased to the road, jerked him up and fell him on the ground. In the process the deceased person died instantly”.

 

The Appellant was charged with murder, punishable under Section 319(1) of the Criminal Code Law Cap C.16 Vol.3 Laws of Cross River State, 2004. At the trial, the prosecution called 5 witnesses and tendered 5 exhibits, while the Appellant testified in his own defence, maintaining that he had no previous quarrel with the deceased. At the conclusion of trial, the Appellant was convicted and sentenced to death by hanging. The Appellant, aggrieved by his conviction and sentence, filed this appeal.

 

The Appellant’s Notice and Grounds of Appeal was filed on 14/11/2012 raising seven grounds of appeal. The Appellant’s Brief of Argument was settled by Sonny O. Wogu, Esq. on 19/12/2012. The Respondent’s Brief was settled by P.S. Bisong, Esq., Director, Public Prosecution, Ministry of Justice, Cross River State, on 15/2/2013, and it was deemed properly filed and served on 24/3/2014.

 

On 24/3/2014, P.S. Bisong, Esq. informed the Court that the Appellant’s Counsel had notified him by telephone that he would be unable to attend Court on the said 24/3/2014. The Appellant’s Brief was therefore deemed adopted pursuant to the provisions of Order 18 Rule 9(4) of the Court of Appeal Rules, 2011; while Mr. Bisong adopted the Respondent’s Brief.

 

From the seven Grounds of Appeal, the Appellant distilled a sole issue for determination as follows:

Whether the Respondent proved the charge of murder against the Appellant beyond reasonable doubt.

The Respondent adopted this issue raised for determination as formulated by the Appellant.

 

It is submitted for the Appellant that out of the five prosecution witnesses, only PW1 testified as an eye witness. PW5, Sergeant Joseph Bassey had in evidence in chief described PW1 “was the architect of the problem.” But, that this piece of evidence did not weigh at all in the mind of trial court. PW1 in her statement to the police at page 7 – 9 of the Record of Appeal had said that the Appellant “actually approached me for friendship which I did not accept at first” and that “when I later on accepted the friendship we stayed for one year and ended in 2003.” It is submitted that her testimony revealed that:

1. The only self-acclaimed eyewitness to the crime (PW1) was a tainted witness. She was described by the investigating Police Officer as the “architect of the problem”.

 

1. Apart from the testimony of PW1, nothing whatsoever linked the Appellant to the offence charged in any manner. No iota of evidence (oral, real or documentary) connected the appellant to the offence, as the Appellant did not make a confessional statement.

 

It is submitted that the Appellant was convicted and sentenced to death upon dangerously porous and hazy evidence. It is submitted that the evidence of the Appellant was consistent that he did not take part in the offence for which he was charged, even in cross-examination.

Learned Counsel referred to the findings of the trial Judge and submitted that the prosecution did not prove the case beyond reasonable doubt. It is submitted that in order to succeed in proof of the offence of murder, the Respondent must prove beyond reasonable doubt the following:

1. The death of the deceased, and
2. The act or omission of the accused which caused the death, and

iii.      That the act or omission of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence; relying on Uguru v. State (2002) 9 NWLR (Part 771) 90 at 106; Gira v. State (1996) 4 NWLR (Part 443) 375; Nwaeze v. State (1996) 2 NWLR (Part 428) 1; Ogba v. State (1992) 2 NWLR (Part 222) 164.

 

It is submitted that the Respondent had the onus of establishing that the act or omission of the Appellant caused the death of the deceased and that the said act was of such a nature as likely to endanger life or establish the intention to kill or do grievous bodily harm to the deceased. It is submitted that the evidence before the trial court failed to show that the death of the deceased was caused by the act or omission of the Appellant, or that the Appellant acted intentionally, with knowledge that death or grievous bodily harm was its probable consequence.
It is submitted that the conviction of the Appellant was founded on the following errors:

1. Reliance on the evidence of a tainted witness;
2. Reliance on inadmissible hearsay evidence;

iii.      Convicting on speculations and conjectures by the learned trial Judge; and

1. Overlooking the absence of proof of an essential element of the offence of murder.

 

It is submitted that the trial court relied on the evidence of PW1, who was a tainted witness, without the necessary caution and corroboration. That a tainted witness may have a purpose of his or her own to serve, and, as such evidence from a tainted witness should be treated with considerable caution, relying on Ishola vs. State (1978) NSCC 499 at 509; Okoro vs. State (1998) 14 NWLR (Pt 584); Ifejirika vs. State (1999) 3 NWLR (PT 593) 59 at 77, and Agbanyi vs. State 1 NWLR (PT 369) 1 at 20 – 21.

It is submitted that the trial court had relied on the inadmissible hearsay evidence of PW2, PW3 and PW4 in convicting the Appellant. It is submitted that evidence of PW2, PW3 and PW4 should be discountenanced, in the absence of necessary direct evidence; relying on Ijioffor vs. State (2001) 9 NWLR (PT 718) 371 at 382 Ojo vs. Gharoro (2006) 10 NWLR (PT 987) 173 at 198-199.

 

It is submitted that the trial court relied on speculations and conjectures in convicting the Appellant. That the appellate court may interfere with such speculative findings; relying on Aiguoreghian vs. State (2004) 3 NWLR (PT 860) 367; Tijani vs. COP (1994) 3 NWLR (PT 335) 692 at 703; Onah vs. State (1985) 3 NWLR (PT 12) 236 at 244. It is submitted that inconsistencies or conflicts in the testimony of the Appellant ought not to have been accepted as guilt. That the fact that an accused person told lies has never been accepted as proof of guilt; relying on Haruna vs. Police (1967) NMLR 145, Okpere vs. State (1971) 1 ALL NLR 1; Omogodo vs. State (1981) NSCC 119 at 128.

 

It is also submitted that, assuming without conceding that the evidence admitted by the trial court was admissible, that the sum total of the evidence failed to establish that the alleged acts of the Appellant were of such nature as likely to endanger life or that the intention to kill or do grievous bodily harm to the deceased was evident. It is submitted that it cannot be contended that the Appellant knew or ought to know that the act of taking the deceased to the road, jerking him up and throwing him on the ground will result in death or grievous bodily harm; relying on Ajisogun vs. State (1998) 13 NWLR (PT 581) 236 at 253; Alabi vs. State (1993) 7 NWLR (PT 307) 511.

 

Learned Counsel finally urged the Court to allow the appeal as the Appellant had been wrongly convicted.

 

In reply, Mr. Bisong, the learned DPP for the Respondent submitted all the elements of the offence as charged had been proved beyond reasonable doubt. It is submitted that an accused person can be convicted on the evidence of one person, particularly an eye witness; relying on Mohammed vs. state (1991) 5 NWLR (PT 192) 438 at 442.

 

On the submission that PW1 was an estranged wife of the Appellant and therefore a tainted witness, it is submitted that the mere fact that there is any form of relationship between a witness and the accused person in a murder trial does not reduce the credibility of the witness. That all the trial court was required to do was to warn himself on the dangers of the evidence of such a witness but that failure to do so would not ipso facto affect a conviction based thereon; relying on Yahaya vs. State (2005) 1 NCC 120 at 124 – 125.

 

It is submitted that the trial court did not rely on hearsay evidence. That the evidence of PW2, PW3, PW4 and PW5 did not amount to hearsay and was rightly admitted by the trial court. It is further submitted that the trial court did not rely on speculations, suspicions or hunches. But that the trial court was merely evaluating the evidence before it. The Court is urged to dismiss this appeal and uphold the conviction and sentence of the Appellant.

 

The sole issue to be addressed in this appeal, as settled by the parties is whether the Respondent proved the charge of murder against the Appellant beyond reasonable doubt.

 

The burden of proving the guilt of an accused person in a criminal trial must be discharged beyond reasonable doubt. While the prosecution must prove the guilt of an accused person, there is no such burden laid on the accused person to prove his innocence.

An accused person is presumed to be innocent until his guilt of the offence is established. See Section 36(5) Constitution of the Federal Republic of Nigeria, 1999, as amended. In Ogundiyan vs. State (1991) 1 NSCC 448, the Supreme Court, per Obaseki, JSC said:

“The standard of proof in all criminal trials is proof beyond reasonable doubt”. See Hycienth Egbe v. The King 13 WACA 105 at 106.

 

In that celebrated case, Verity, CJ., (Nigeria) delivering the judgment of the Court on the standard of Proof said:

“As illustration of the required standard of proof and degree of certainty in criminal trials, we wish to refer to a portion of the charge to the jury of Martin, B., in Rex v. White 4 F & F 383 at 384 where the learned Baron said:-

In order to enable you to return a verdict against the persons, you must be satisfied beyond any reasonable doubt, of his guilt and this as a conviction created in your minds, not merely as a matter of probability and if it is only an impression of probability your duty is to acquit.”

 

On what may be the proper interpretation to be given to the well worn phrase ‘proof beyond reasonable doubt’ in criminal trials, I find instructive the contribution of A.M. Mukhtar JSC (now CJN) in John Agbo vs. State (2006) 1 S.C . (PT. II) 73, that:

“However, proof beyond reasonable doubt, does not mean proof beyond shadow of doubt, as stated by Denning J. in the case of Miller V. Minister of Pensions 1947 2 All E.R. page 372 at 373 when he said:-
“Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice, if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable,” the case is proved beyond reasonable doubt, but nothing short of that will suffice”.

 

‘Proof beyond reasonable doubt’ thus simply means that there is credible evidence upon which the court can safely convict, even if it is upon the evidence of a single witness. See: Afolalu v State (2010) 6 – 7 MJSC 187. See also the provisions of Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011 (formerly Section 138 of the Evidence Act, Laws of the Federation of Nigeria, 1990), which states that:

(1)     If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.

 

(2)     The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provision of section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.

 

(3)     If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on the accused.
Therefore, where all the ingredients of an offence have been clearly established and proved by the prosecution, then the offence is proved beyond reasonable doubt. See: Osetola vs. State (2012) LPELR-9348 (SC); Alabi vs. State (1993) 7 NWLR (PT 307) 511 at 523; Ajayi vs. State (2013) 2-3 MJSC (PT 1) 59.

 

It is the well settled legal position that in a murder case, the prosecution must prove beyond reasonable doubt the following ingredients:-

(a)     That the deceased died.

(b)     That the death of the deceased resulted from the act of the Appellant.

(c)     That the act of the Appellant was intentional with the knowledge that death or bodily harm was its probable consequence.

See: Abogede v. State (1996) 5 NWLR (Pt. 448) 270; Ogba v. State (1992) 2 NWLR (Pt.222) 164 at 198; Igabele v State (2006) 5 MJSC 96.
The Supreme Court in Edoho v State (2010) 4 MJSC (PT. 1) 1, per Adekeye, JSC, said:

“In effect in order to secure a conviction for murder the prosecution must prove beyond reasonable doubt that the death of the deceased was caused directly or indirectly by the act of the accused. It is incumbent on the prosecution to establish not only that the act of the accused person caused the death of the deceased but that in actual fact the deceased died as a result of the act of the accused person to the exclusion of all other possibilities. Thus, where a person is attacked with a lethal weapon and he died on the spot or shortly, afterwards, it is reasonable to infer that the injury inflicted on him caused the death. Audu v. State (2003) 7 NWLR (Pt. 820) Pg. 516; R. v. Nwokocha (1949) 12 WACA Pg. 453; R. v. Owe (1961) 2 SCNLR Pg. 354; State v. Omoni (1969) 2 All NLR Pg. 337; Bakurie v. state (1965) NMLR Pg. 163; Ugwu v. The State (2002) 9 NWLR (Pt.771) Pg. 90; Ubani v. State (2003) 18 NWLR (Pt.851) Pg. 224; Stande v. State (2005) 1 NWLR (Pt.907) Pg. 218; Iyabele v. The State (2006) NWLR (Pt.975) Pg. 100; Adawa v. State (2006) 9 NWLR (Pt. 984) Pg. 155.”

 

The fact that the deceased died on 4th December, 2004 is not in issue. PW1 witnessed his death. PW2, PW3, and PW4 saw his corpse. The matter was reported to the police by PW2 and PW3. There was an autopsy performed and a report issued to the police. The said autopsy report was tendered by PW5 and admitted as Exhibit 2. The said report put indicated as follows:

“Examination revealed as follows: Head: Laceration on the posterior lateral (R) aspect of the head. Chest:

Fractured ribs (6th and 7th) on the (L) side of the chest – anteriorly. MSS: Abrasions on the (R) toes (2nd and 3rd) and (L) big toe…I certify the cause of death in my opinion to be due to multiple injuries sustained as stated above.”

 

Exhibit 2 was not tendered by the medical doctor who performed the autopsy and signed the report. This does not however affect the validity or authenticity of the said report. There is no requirement to invite the doctor who wrote an autopsy report to testify or to tender the document, before the report can be countenanced as valid. In Edoho v State (2010) 4 MJSC (PT. 1) 1, the Supreme Court, per Adekeye, JSC, said:

“By virtue of Section 249(3) of the Criminal Procedure Code, a written report by any medical officer or registered medical practitioner may at the discretion of the Court be admitted in evidence for the purpose of proving the nature of any injuries received by and the physical cause of the death of any person who has been examined by him. On admission of such report, same shall be read over to the accused and he shall be asked whether he disagrees with any statement therein and any such disagreement shall be recorded by the Court. If by reason of any such disagreement or otherwise it appears desirable for the ends of justice that such medical officer or registered medical practitioner shall attend or give evidence in person, the Court shall summon such medical officer or registered medical practitioner to appear as a witness. The trial Court did not have occasion to summon Dr. De Bree who conducted the post-mortem examination on the corpse of the deceased.”

 

See also: Ogbu vs. State (1992) 8 NWLR (Pt. 259) 255, [1992] 3 NSCC 178; Okoro v. The State (1988) 5 NWLR (Pt. 94), 255; Enowoh v. The State (1989) 2 NWLR 98 (99).

In any event, it must be noted that although medical evidence as to the cause of death is desirable it is not essential in all cases of homicide. In the absence of medical evidence, if there is sufficient evidence to infer beyond reasonable doubt that the death of the deceased was caused by the act of the accused, the same can be accepted by the Court. See: Ogba vs. State (1992) 2 NWLR (Pt.222) 164; Ubierho v State (2005) 7 MJSC 168.

 

The identity of the deceased on whom the autopsy was performed was not in issue. See: Enewoh vs. The State (1990) 4 NWLR (Pt. 145) 469, Okara vs. The State (1988) 5 NWLR (Pt.94) 255; R. vs. Laoye 6 WACA and Ukoh vs. The State (1972) 5 S.C. 135; Princewill vs. State (1994) 6 NWLR (Pt. 353) 703; Damina vs. State (1995) 8 NWLR (Pt. 415) 513.

 

There was no doubt that the totality of the evidence of the prosecution showed unmistakably that the body on which the doctor performed a post mortem examination was that of the deceased. The death of the deceased was therefore proved beyond reasonable doubt.

 

The next question to be answered is whether the death of the deceased was caused by the Appellant. The Appellant in his statement to the police, Exhibit 1, at page 11 of the Record of Appeal said that he had given money to one Aniefiok Akpan Umoh (PW4) to hold for him. When he went to retrieve the money, Aniefiok told him the money was with Alice, PW1. He made effort to recover the money but Alice said he had been her boyfriend but he had failed to settle her. He denied this allegation, saying he had settled her with N3,000.00. He was advised by Aniefiok to come back later for the money. In the said statement to the police, he further said:

“I now went on the 4/12/2004 to collect the money which was the date of the incident when the deceased died.”

 

He gave a very graphic story about how he had to wait for Alice, who came with six other men. He was advised by the deceased to leave the vicinity, which he did. He said he did not fight or quarrel with the deceased.

 

In the trial court, testifying as DW1, the Appellant largely changed his story. He first said he required an unspecified motor part for his vehicle which was not working well. He did not have enough money so he first went to the farm, harvested cassava and processed it into garri. Then he sold it and made some money. He then said he took his four battery radio for repairs. Then he now said he travelled to buy the unspecified motor part for his vehicle, and took it to a mechanic. He was arrested there by the police and taken to Akampa Police Station, where he was told by the police that somebody was killed. Upon being questioned by the police, he denied knowledge of the death of the deceased or being involved in the murder.

 

Under cross-examination, he changed the story again. Though he did not deny making Exhibit 1, his statement to the police, he mostly denied its contents. This time, he said that on 4/12/2004, he went to Aniefiok’s (PW4) residence to collect his money after he returned from the market. He said Aniefiok wanted to give him the money but he told him to keep the money till he returned from his trip. He said he did not see PW1 on that day.

 

He further said of the events of 4/12/2004:

“On the day the deceased died, I saw him. I did not go to his house, rather I went to pw4’s house. As I was sitting there, I saw deceased coming to meet pw4.

I did not fight with the deceased or cause his death by throwing him on the road.”

 

These are about three or four different versions of what transpired on 4/12/2004, with his evidence on oath being completely at variance with his previous statement to the police, Exhibit 1.

It is obvious from his incomprehensible and inconsistent testimony as DW1 that the Appellant was not being straightforward or completely truthful for reasons best known to him. But that fact alone does not relieve the prosecution of the burden of proving the offence for which he is charged beyond reasonable doubt.

In Ogidi vs. the State (2005) 1 SC (Pt.1) 98, the Supreme Court, per Oguntade, JSC said:

“It is to be said here that the trial judge held that because the 2nd to 4th appellants had lied in parts of their evidence they were to be convicted as robbers but as was held in Haruna & Anor. v. The Police [1967] N.M.L.R. 145 at 153:

“…although a man may lie because he is guilty, he may just as well lie because he is stupid or afraid or both and whether he is guilty or not.”
And also in Okpere v. The State [1971] 1 All N.L.R. 1 at 5 this Court per Coker JSC observed:

“It has never been the law that the mere fact that a person told lies is by itself sufficient to convict him of an offence unconnected with mendacity nor does the fact that an accused person has told lies relieve the prosecution of its duty of proving the guilt of the accused of the offence charged beyond all reasonable doubts. See Woolmington v. Director of Public Prosecution [1935] A.C. 462.”

 

See also: John Agbo vs. State (2006) 1 S.C. (PT. II) 73. Therefore in spite of the obvious inconsistencies and conflicting testimony of the Appellant, the prosecution still had the duty or burden to prove the offence as charged beyond reasonable doubt.

The only witness who testified as an eye witness to this unfortunate event was PW1. In evidence in chief at page 15 of the Record of Appeal, she said:

“I recall the 4th day of December, 2004. It was a Saturday. I went to the farm. I came back with vegetables. I met the accused person and the deceased quarrelling. The accused asked the deceased to come out, that he would kill him. I stood up and held the accused person and advised him not to do so. He refused and rather used his leg to kick me. The accused took the deceased to the road, jerked him up and fell (sic) him on the ground. In the process the deceased person died instantly.”

 

As already stated, no other person witnessed this incident. It was PW1 that called other persons to the scene. PW4 however had testified that he had heard the Appellant quarrelling with the deceased on that day, 4/12/2004, before he went to the farm. He had asked the Appellant to get away from the place, and then left for his farm. But when he got back from the farm, he heard people shouting that the Appellant had killed the deceased.

One thing is clear about the number of witnesses the prosecution is required to call in order to succeed. It is the position of the law that one solitary witness is enough, if his or her evidence proves the essential issue in dispute, and if he or she is believed. See: Adelumola v State (1988) 1 NSCC 165; Afolalu v State (supra); Idiok vs. State (2008) 6 MJSC 36; Nkebisi v State (2010) 1-2 MJSC 78. The evidence of one witness of truth can result in the conviction of an accused person, unless it is an offence for which corroboration is statutorily required.

It is being contended for the Appellant that PW1 is a tainted witness. In her statement made to the police on 13/1/2006, she had said of the accused person:

“He the suspect returned from the market to come and meet me. I don’t owe him any money. He actually approached me for friendship which I did not accept at first…But when I later on accepted the friendship we stayed for one year and ended in 2003, I cannot remember the month. He normally visit (sic) me as a friend in my house and go. “

 

Under cross-examination she said:

“The accused person used to hire us to work for him in his farm. At other times he hires us to fry garri for him and he pays us.”

 

PW5 said of PW1 in evidence in chief:

“Witnesses were contacted except Alice Jumbo, who was the architect of the problem.”

 

Under cross examination, PW5 said:

“In the course of investigation, I discovered pw1 and pw4 live in the same compound. Pw1 was an estranged girlfriend to the accused person. Pw1 and Pw4 were not the architects of the problem that gave rise to the death of the deceased. I said in court that pw1 (Alice Jumbo) was the architect.”

 

Testifying as DW1, the Appellant said:

“I know Alice, she was my 2nd wife after I lost my 1st wife.

From these accounts, the Appellant and PW1 had a previous amorous relationship, which no longer was in existence. It is contended for the Appellant that she is a tainted witness by reason of this fact.

 

I believe the law is quite settled on who can be regarded as a tainted witness. A tainted witness is a person who is either an accomplice or who on the evidence may be regarded as having some purpose of his/her own to serve. See: R v. Enahoro (1964) NMLR 65; Ifejirika V. The State (1999) 3 NWLR (Pt. 593) 59; Ogunlana v. The State (1995) 5 NWLR (Pt. 395) 266; Moses vs. State (2006) 4 S.C. (Pt. 11) 30.

 

A trial court should always treat with considerable caution and should examine thoroughly the evidence of a tainted witness. Indeed, a trial court is advised to be wary in convicting on the evidence of such a witness without corroboration. The requirement that a trial court should in such circumstances warn itself as one would in the case of accomplices is one dictated by prudence not by law. See: William Idahosa v. The State (1978) 2 LRN III, Ishola v. The State (1965) NMLR 85); Garba Mailaiyi & anor. v. The State 1968) All NLR 117.

 

I find most instructive the caution in Olalekan V. The State (2001) 1 MJSC 159, also reported in (2001) 12 SCNJ. 94 at 111 – 115, (2001) 2 SCM, 104, where the Supreme Court, per Ogundare, JSC said:

“In ISHOLA V. THE STATE (1978) 9-10 SC 81 at p.100, this Court, per Idigbe JSC, admonished –

“We think it is proper to confine this category of witness (i.e. ‘tainted’) to one who is either an ‘accomplice’ or, by the evidence he gives, (whether as witness for the prosecution or defence) may and could be regarded as ‘having some purpose of his own to serve”.

See also MAILAYI v. THE STATE (1968) All NLR 117 at 123 where this Court, per Coker JSC observed:

“Recently there has been a tendency among criminal lawyers to create a category of ‘tainted’ witnesses but as counsel for the appellants did not dilate on this, we do not think that a close consideration of that issue arises in the present case. We however observe that the expression ‘tainted’ is very loose and if its application is not kept within proper bounds a great deal of confusion will be unleashed into an area of evidence which even now is fraught with difficulties.”

 

As already reproduced above, PW1 said in evidence in chief:

“I met the accused person and the deceased quarrelling. The accused asked the deceased to come out, that he would kill him. I stood up and held the accused person and advised him not to do so. He refused and rather used his leg to kick me. The accused took the deceased to the road, jerked him up and fell (sic) him on the ground. In the process the deceased person died instantly. “

 

Under cross-examination, she said:

“Yes I said the accused person kicked me when I held him and I fell down so I allowed him…I only tell the court what I witnessed. I cannot give evidence against the accused person.

The distance between where I was and where the accused took up the deceased and threw down on ground is about 50 yards.”

 

The learned trial Judge at page 51 of the Record of Appeal said:

“In my view this witness did not embellish the story of what transpired. She is a believable witness and I do believe her testimony in the witness box. I must state here that I have also warned myself and I do not see what she has said that is flamboyant and capable of disbelief. Moreover, this witness has been ably corroborated by the testimony of other prosecution witnesses. “

 

It is contended for the Appellant that the testimonies of PW2, PW3, and PW4 are all hearsay. None of them were eye witnesses to the incident. The only eye witness to the incident was PW1. It was her shouts and report that attracted PW2, PW3 and PW4 to the scene, by which time, the Appellant was said to have run away. None of the prosecution witnesses saw him on the scene.

 

Murder is not an offence for which corroboration is statutorily required. However, if a witness is regarded as a tainted witness, then the trial court is advised to be wary in convicting on the evidence of such a witness without corroboration. The learned trial Judge was certainly mindful of this caution. But, the first thing to determine is whether PW1 could be regarded as a tainted witness.

 

PW1 had a previous relationship with the Appellant. She described it as ‘friendship”, which ended after about one year. The Appellant described her as having been his “2nd wife”. A crucial question that should be addressed is this: what purpose of her own did PW1 have to serve in the evidence she gave? It is not in evidence that she was in a similar relationship with the deceased, who she described as her in-law. It is not in evidence that she had any reason to want to frame the Appellant for murder. It was eyewitness account of an incident that took place in her presence that she gave before the trial court. I would not regard her as a tainted witness at all.

 

But then could the evidence of PW2, PW3 and PW4 be seen as corroborating the evidence of PW1; or, did their evidence constitute hearsay, in the circumstance? In Ojo vs. Gharoro (2006) 2-3 S.C. 105, the Supreme Court, per Niki Tobi said:

“In the often cited case of the common law tradition of Subramanian v. Public Prosecutor (1956) 1 WLR 965 at 969, the Judicial Committee of the Privy Council held that evidence of a statement made to a person by a person who is himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence not the truth of the statement but the fact that it was made.

 

When a third party relates a story to another as proof of contents of a statement such story is hearsay. Hearsay evidence is evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person. See Judicial Service Committee v. Omo (1990) 6 NWLR (Pt. 157) 407. A piece of evidence is hearsay if it is evidence of the contents of a statement made by a witness who is himself not called to testify. See Utteh v. The State (1992) 2 NWLR (Pt. 223) 257.”

 

From the evidence, PW2, PW3 and PW4 merely repeated what they were told by PW1. None of them witnessed the actual incident. Corroboration is evidence which may be direct or circumstantial. It is the duty of the court to ascertain that whatever evidence is being used or regarded as corroboration is independent of the evidence to be corroborated and is such as supports the story of the main evidence to the effect that it renders that story more probable and that it implicates the accused person in some material particular. See: Okabichi vs. State (1975) 3 S.C. (REPRINT) 96, where the Supreme Court, per Coker, JSC said:

“It is usual to refer to the case of Rex v. Basketville (1916) 2 KB 658, where at page 667 in a passage, classical and noted for its erudition and exposition of the principle, Lord Reading, CJ., described the nature and meaning of corroboration, in language which can hardly be surpassed for clarity, as follows:-

“We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it. The test applicable to determine the nature and extent of the corroboration is thus the same whether the case falls within the rule of practice at common law or within that class of offences for which corroboration is required by statute. The language of the statute, ‘implicates the accused’, compendiously incorporates the test applicable at common law in the rule of practice. The nature of the corroboration will necessarily vary according to the particular circumstances of the offence charged. It would be in high degree dangerous to attempt to formulate the kind of evidence which would be regarded as corroboration, except to say that corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime had been committed, but that it was committed by the accused.”

 

From this unambiguous explanation, the testimonies of PW2, PW3 and PW4 cannot be seen as corroborating the evidence of PW1 on the incident.

 

Be that as it may, the point has already been made that PW1 was not a tainted witness; and, the evidence of one solitary witness is enough, if his or her evidence proves the essential issue in dispute, and if he or she is believed. See: Adelumola v State (supra); Afolalu v State (supra); Idiok vs. State (supra).

 

I agree with the view of the learned trial Judge at page 51 of the Record of Appeal already reproduced above, that:

“In my view this witness did not embellish the story of what transpired. She is a believable witness and I do believe her testimony in the witness box. I must state here that I have also warned myself and I do not see what she has said that is flamboyant and capable of disbelief.”

 

The testimony of PW1, an eye witness clearly is to the effect that the deceased died from the action of the Appellant which, from the evidence of PW1 at page 15 of the Record of Appeal is:

“The accused took the deceased to the road, jerked him up and fell him on the ground. In the process the deceased person died instantly”.

 

The death of the deceased was therefore caused by the Appellant.

 

The third important consideration is whether the act of the Appellant which resulted in the death of the deceased was intentional with knowledge that death or grievous bodily harm would be its probable consequence.

 

Our law is that a man is presumed to intend the natural consequences of his acts. The test to be applied is the objective one – the test of what a reasonable man would contemplate as a probable consequence or result of his action. See: Adelumola vs. State (1988) 1 NWLR (Pt.73) 683 S.C; Arabamen vs. The State (1972) 4 SC 35 at 44 – 45; Uyo vs. Attorney General, Bendel State (1986) 1 ALL NLR 106 at 112; Garba v. The State (2000) FWLR (Pt.24) 1448 at 1459 – 1460; Ibikunle vs. State (2007) 1 S.C. (PT. 11) 32.

 

PW1 testified at page 15 of the Record of Appeal that:

“The accused took the deceased to the road, jerked him up and fell him on the ground. In the process the deceased person died instantly”.

 

Under cross examination, PW5, the IPO, said that in the course of his investigation, he discovered the cause of the fight between the Appellant and the deceased and that the Appellant was the aggressor. The deceased was described by PW4 under cross examination at page 18 of the Record of Appeal to be an elderly man. The deceased was the father of PW2, a motorcyclist. The autopsy report, Exhibit 2, described the approximate age of the deceased to be 64 years. He was therefore not a young man by any standard. The Appellant is stated in his statement, Exhibit 1, to have been 40 years old at the material time.

 

What could be the natural consequence of a 40 year old man, intentionally, getting physical with a 64 year old man, lifting him up and throwing him down on a hard bare road? Contrary to the postulations of learned Counsel for the Appellant, I believe the only natural consequence of such action is grievous bodily harm or even death. A man accepts his victim as he finds him. I agree with the finding of the learned trial Judge that the Appellant acted intentionally and with knowledge that death or grievous bodily harm would be the probable consequence of his action. Such action amounts to murder under Section 316(2) of the Criminal Code Law Cap C.16 Vol.3 Laws of Cross River State, 2004.

 

I therefore hold that the prosecution proved the offence as charged against the Appellant. The sole issue raised for determination is thus resolved against the Appellant.

 

This appeal is without merit. It fails and is hereby dismissed. Accordingly, the conviction and sentence of the Appellant is hereby affirmed.

MOHAMMED LAWAL GARBA, J.C.A.:

I agree with the conclusion of my learned brother, Onyekachi A. Otisi JCA, in the lead judgment, a draft of which I read before today. The appeal is dismissed by me too for all the reasons set out therein, which I adopt and abide by the consequential order affirming the conviction and sentence of the Appellant by the High Court in the judgment delivered on 21/11/2008 in Charge No. HK/1C/2006.

UZO I. NDUKWE-ANYANWU, J.C.A.:

I had the privilege of reading in draft form, the judgment just delivered by my learned brother Onyekachi A. Otisi, JCA. The facts are as recapped in the lead judgment. The prosecution has proved its case beyond reasonable doubt as dictated in Uguru vs. State (supra). The prosecution proved that:

(1)     The deceased is dead.

(2)     That the act or omission of the accused caused the death.

(3)     That the act or omission of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence.

 

Where the accused, a 40 year old man lifts an older 64 year old man and drops him on a hard surface, he intends only one thing. Either to cause him grievous bodily harm or death. In this case, the deceased died as a result of this action of the accused. A man is presumed to intend the natural consequences of his acts.
For this and the more detailed resolution of the lone issue in this appeal, I also dismiss this appeal. I abide by all the orders contained in the lead judgment.