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3LR/1994/16 (CA)


1 NWLR PART 372 PG 473








Mr. A. Anyameno SAN (with him F. Mbah) – for appellant

C.C. Aneh, Asst. Chief Legal officer. Min of Justice, Enugu State – for respondent



CRIMINAL LAW AND PROCEDURE – Duty on court in contradictions in evidence of prosecution witnesses; Effect and danger of defence resting case on evidence of prosecution; On whom lies onus of proof

PRACTICE AND PROCEDURE – EVIDENCE – Whether evidence of one witness is capable of grounding conviction



OKAY ACHIKE Delivering Leading Judgement

The accused who was initially charged with the offence of manslaughter, was subsequently charged with the offence of murder of one Frances Madu, a police constable. The deceased was alleged to have died from gunshot wound. The deceased was a passenger in a Nissan Minibus and the fatal incident occurred at a check-point near the Nkwo-Agu Market in Udi as a result of the shot from the pistol assigned to the accused, a Police Officer of the rank of Assistant Superintendent of Police. P.W. 2 the driver of the Nissan minibus gave account of the event leading to the death of the deceased. According to P.W. 2 the deceased wearing police uniform, who was sitting in the front seat of his minibus, challenged the constable in the company of the accused as to the propriety of demanding money from the witness (p.w.2). The said constable then requested the deceased to accompany him to his superior officer, i.e. the accused. That he did. On getting there, the accused shouted abuses on him but the deceased later returned to his seat. Accused followed the deceased back to his seat. Thereupon the accused pulled out his pistol and threatened “to bater the bus and the passengers if I moved an inch from that spot” The accused then moved to the side where the deceased was seated opened the door, held the deceased by the collar of his dress and pulled him down from the bus to the ground. The accused then slapped the deceased and unleashed blows on him so also did the constable in the accused’s accompany. Continuing, the witness said, that at a point, the accused then shot at the deceased and the deceased collapsed on the ground. Thereafter, the accused and the aforesaid constable put the deceased in a vehicle and drove off to unknown destination.

P.W.5 also gave an eye-witness account of the incident leading to the gunshot which also injured his right-palm. The witness testified that he tried to intervene but the pressure of the beating of the deceased by the accused and the constable with him aborted his efforts. P.W. 7 gave an account of the circumstances leading to the death of the deceased. Furthermore, P.w. 8 a policeman who was on traffic duty at the market with the accused narrated how the incident occurred.

At the close of the case for the prosecution which fielded eight (8) witnesses, the learned counsel for the accused made a no-case submission and rested his defence thereon. In a reserved judgment, the learned trial judge found accused guilty of murder as charged and sentenced him to death. It is against his conviction and sentence that the accused, herein appellant, has filed this appeal.

On appellant’s behalf, his learned counsel identified the following three issues for determination, namely,

(1)     Did the prosecution make out a prima facie case for the accused to answer in the first instance?

(2)     Was the trial court right in proffering superior order as an explanation for the contradictions in the evidence of P.W. 8 before accepting one of the conflicting versions when he was not treated as a hostile witness and P.W. 8 did not plead superior order as his explanation?.

(3)     On the totality of the evidence led by the prosecution was there proof beyond reasonable doubt that the accused with the necessary intent pulled the trigger of the Beretta pistol which released the fatal bullet which hit the deceased?.

For the respondent, four issues were formulated for determination; these are:-

  1. Whether there is a prima facie case made out against the accused/appellant.
  2. Whether from the facts and circumstances of this case there is sufficient or valid explanation of the inconsistencies in the evidence of P.W. 8 entitling the trial court to prefer one version of his evidence.
  3. Whether the contradictions and gaps in the case of the prosecution amounted to disparagement of the witnesses making it dangerous to convict on them or likely to result in miscarriage of justice.
  4. Whether the case against the accused person was proved beyond reasonable doubt”.

Mr. Anyamene SAN learned appellant’s counsel, argued appellant’s issues No. 1 and 2 in the brief together. Counsel drew attention to the pieces of conflicting evidence of some of the prosecution witnesses particularly, the evidence of P.W.2, P.W.5, P.W. 7 and P.W. 8 In view of the conflict in their evidence, counsel submits that and on the authorities of Ukpong v Queen (1961) All NLR 25, (No1) (1961) 1 SCNLR 53; R.V. Onubogu (1974) 9 S.C. 1 at 20 and Mumuni v. The State (1975) 6 S.C. 79 at 109, to mention a few, the appellant was entitled to be discharged.

On the third issue, it was the submission of the learned Senior Advocate that the learned trial Judge failed to evaluate the totality of the evidence of the prosecution witnesses to determine whether prosecution proved the guilt of the appellant beyond reasonable doubt. Learned counsel also cited and relied on several authorities and finally urged us to allow the appeal.

In his reply in the respondent’s brief, Mr. C. C. Eneh, learned Asst. Chief Legal Officer of Enugu State Judiciary, on his issue No. 1 and after a review of the relevant pieces of evidence of some prosecution witnesses, submitted that there was an overwhelming and compelling evidence requiring the appellant to answer to the charge and that the learned trial Judge was right in holding that a prima facie case had been made out against the appellant. Counsel relies on several authorities, including Uwadiale Arebamen v State (1972) 4 S.C. 35, Paul Onwe v The State (1984) 10 S.C. 81, Ehot v The State (1993) 5 SCNJ 65 at 93; (1993) 4 NWLR (pt.290) 644 to mention a few.

On issue No.2, counsel submits that P.W.8 has sufficiently explained the inconsistencies in his testimony and the learned trial Judge on the face of the inconsistencies was at liberty to prefer one version of evidence to the other version.

On the third issue, it is the submission of learned counsel that although there were some contradictions in the prosecution’s case, the contradictions were immaterial as they have not led to any miscarriage of justice.

Finally, on the 4th issue, counsel submits that the case against the appellant was proved beyond reasonable doubt, particularly o the evidence of P.W.2 who testified that it was the appellant who shot the deceased. Counsel then urged that the appeal be dismissed.

In his oral submission, Mr. Anyamene S.A.N. on behalf of the appellant, referred to p.106, lines 20 to the end of that page of the record and submits that there are many possibilities as to cause of death. Counsel also referred to 115, line 13 wherein the learned trial Judge believed one of the witnesses despite his inconsistent statements and testimony. Counsel finally urged that the appeal be allowed.

Mr. C. C. Eneh, on behalf of the respondent urged us to allow the appeal as the prosecution had proved their case beyond reasonable doubt. While he conceded that there were obvious contradictions between the statements of P.W. 8 to the police and his testimony in court, nevertheless, he submitted that P.W. 8 proffered an explanation to the inconsistencies. Counsel referred to the testimony of the P.W. 2 at p. 38 to the end of the page and p.39 lines 12-16 and urged us to dismiss the appeal. Mr. Anyamene S.A. N. submitted that there ought to be a finding of fact as to whether P.W.2 was at the locus in quo when the gun-shot was fired because it was suggested to him during cross-examination – which he denied – that he (P.W2) was not around when the fight started against and also that he did not witness the shooting. Counsel referred to p.42 Line 1-4 to drive home his point that P.W. 2 was not present at locus in quo.

I have carefully perused the record of appeal as well as the briefs of the parties and the oral submissions of their learned counsel. The trump-card of the appellant in this appeal, in my view is predicated on the strong submission by learned appellant’s counsel that the account of the shooting as rendered by the prosecution’s star witnesses were woefully in conflict and therefore unreliable to establish either a prima facie case against the appellant or indeed establish the guilt of the appellant. The learned Senior Advocate pointed out and urged us to bear in mind that despite the contradictory evidence of some of the prosecution’s witnesses, they were not treated as hostile witnesses. Perhaps, in my view, the most offending witness in this regard is P.W. 8 His name is Jacob Oguche and is a police corporal in the Nigeria Police Force. On the fateful day, he was on duty at the Nkwo-Agu Market Junction in the company of appellant. On the question of the gun-shot he gave a vivid testimony of how appellant “pulled his pistol from the pistol-purse (sic) cocked it and fired direct to the deceased”. But this account was in conflict with the witness’s earlier extra-judicial statements to the police. In fact, his three statements to the police dated 9/1/89, 10/1/89 and the third dated 16/1/89 are in conflict with each other and of course inconsistent with his testimony in court. Now the trial court was therefore confronted with a dilemma of conflicting testimony of P.W.8 and his extra-judicial statements. That ought not to disturb him nor detain him. The position of the law in such circumstance is that the trial Judge should hold that the testimony on oath should be treated as unreliable so also the extra-judicial statements. This is the principle laid in the Queen v Joshua (1964) 1 All NLR 1 at P.3 wherein the Supreme Court, unequivocally accepted the observation of Lord Parker L.C.J. in R. v Golder (1960) 1 WLR (1169) at (1172). This is how his Lordship lucidly expressed himself:-

“In the judgment of this court, when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous statements, whether sworn or unsworn, do not constitute evidence upon which they can act”.

This clearly provides an answer to the dilemma posed by the conflict in evidence of any witness and his extra-judicial statements. The unreliabilty of such conflicting evidence was re-emphasised in R v Ukpong (1961) All NLR 25; (No 1) (1961) 1 SCNLR 53. The inevitable conclusion one is obliged to reach is that on the basis of the principle stated above the entire testimony of P,W. 8 is unreliable and should be completely ignored for all intents and purposes. The learned trial Judge was therefore palpably in grave error when the trial Judge held that;

“the evidence adduced by the prosecution, particularly through its eye-witnesses (P.W.2, P.W.5 and P.W.8) which I believed, was uncontradicted by the accused or by any other person with any credible testimony.”

Surely, in the face of the worthless evidence of P.W.8 as explained above, his evidence was tainted and rendered incapable of belief.

We shall now turn to the evidence of P.W.7. His testimony in court was consistent with his extra-Judicial statement to the police. Both the evidence and his extra-judicial statement were deficient in one point: they failed to identify the actual culprit who released the gunshot that terminated the life of the deceased. To that extent, therefore, his testimony was of low probative value. He was not however a discredited witness.

Like P.W. 7, P.W.5 who claimed that he was present at the locus in quo did not state categorically who released the gunshot that killed the deceased. Their testimony on the deceased by the appellant and P.W.8 appeared to have tallied. But a close examination of P.W’s extra-judicial statements as they relate to the pistol and the testimony in court shows some inconsistency. Whereas before the gunshot was released, the witness said in his extra-judicial statement, that the appellant dropped his pistol on the ground and the fighting continued yet in his testimony there is no evidence to the effect that appellants gun was thrown to the ground at any point in time before he heard the gunshot. In the instant case, there is no doubt that the gun and the use to which it was put in the dastardly act which caused the death of the deceased are material and most vital pieces of evidence. It is for all this that one is of the view that it is, perhaps, safer to say that to that extent the evidence of this witness, having raised some conflict with regard to the position of the gun before the shot was released, that the testimony of P.W 5’s unreliable. To that extent, therefore, on the principle of the authority of R v Ukpong (supra), P.w 5’s evidence should be treated as unreliable and therefore ignored.

I had early in this judgment recapitulated the testimony of P.W.2 the driver of the Nissan minibus. He was rigorously cross-examined by learned appellant’s counsel, Mr. Anyamene, S.A.N. He stood his ground under cross-examination. He was believed by the learned trial Judge. Contrary to the suggestion made by appellant’s counsel that he was not present when the deceased was attacked, P.W.2 stated firmly:

“It was about 20 feet away from the bus from which the accused and his companies (sic) dragged the deceased down. I did not see the driver drive away; but I could not say his whereabouts during the attack on the deceased”.

It is therefore erroneous and untenable for learned appellant’s counsel to summit that because P.W. 2’s bus was not used to carry the deceased from the locus in quo it was conclusive that P.W.2 was not there. The appellant not having testified nor did anyone testify on his behalf rebutting P.W.2’s testimony that he was present at all material times at the locus in quo. p.w.2’s evidence in this regard remained unchallenged and therefore uncontradicted. It is however fair to keep the record straight by recalling that P.w. 8 testified that p.w.2 ran away when the fight started. That piece of testimony does not take one anywhere. This is a witness, as I had shown earlier, who had no respect for truth or consistency. On the authorities, I had shown that the totality of his evidence was worthless and unreliable; P.W.8 remained unabashedly in his relish to make contradictory statements. The submission of learned counsel for the respondent that the conflict or contradiction in relation to P.W 5’s testimony and the extra-judicial statements were properly explained by P.w 8 is not borne out by the record. On the contrary, his testimony and the statements made to the police were diabolically irreconcilable on material issues. To say the least the performance of P.W 8 n mind that he is a trained policeman, of the rank of a corporal, left him as a disgrace to the image of Nigeria Police Force. To have fought another policemen while in uniform reduced him to the level of an area boy” who does not deserve value and should be ignored.

Mr. Anyamene, S.A.N had however urged that the learned trial Judge should have made a finding of fact as to whether pw.2 was present at the point in time when the deceased was shot. Again having discredited the evidence of p.w 8 and there being no other evidence derogating from the evidence of p.w 2 that he was physically present at the locus in quo at all material time, there were no legal duty on the trial Judge to make such finding. p.w 2’s evidence being cogent, credible and unchallenged it became compelling for the trial Judge to accept it. This the learned trial Judge did having expressly stated that he believed him (p.w.8) In conclusion, that submission of learned appellant’s counsel is not well founded.

By way of summary, it is pertinent even at the risk of being repetitive to stress that P.w 8’s testimony was sharply contradictory with his extra-judicial statements; to that extent his testimony was unsafe as it was unreliable. Similarly, the testimony of p.w 5 another person who, like P.w 8 who claimed to be any eye witness, would be rejected as it contradicted his extra-judicial statement. Again, even if his testimony was without such blemish his evidence would be worthless in relation to the person who unleashed the gunshot. For the same reason, the evidence of P.w 7 was equally conspicuously unhelpful with regard to the person who released the devastating shot. The purported belief of the testimonies of p.w. 5, p.w 7 and p.w. 8 by the learned trial Judge undoubtedly, is misconceived and should be discountenanced, having regard to what I have been saying. The rejection of the evidence of these so-called eye-witnesses would have completely undermine the case for the prosecution but for the evidence of p. w 2 which belonged to a different kettle of fish. His evidence was believed by the judge. The totality of p.w 2’s evidence, in my opinion, was sufficient to raise a prima facie case against the appellant. If believed by the trial Judge, as was the case here it is the law that the evidence of a witness particularly the uncontradicted evidence which is not incredible, is a matter about which the trial judge has no option but to accept. See Bellow v Eweka (1981) 1 S.C. 101 and Azeez v The State (1986) 2 NWLR (Pt.23) 541. The appellant not having testified nor any person called upon to testify o his behalf, the testimony of p.w 2 with regard to the demise of the deceased on that ill-fated day in the circumstances narrated by p.w 2 erected a prima facie case against the appellant which remained unrebutted to the end of the trial. Thus I am clearly of opinion that the prosecution made out a prima facie case necessitating the appellant to answer. The evidence of p. w 8 having been shown to be worthless and one that must be ignored in its entirety, the 2nd issue raised by the appellant becomes irrelevant for further consideration.

In sum, the 1st and 2nd issues argued together by the learned appellant’s counsel are respectively resolved against the appellant.

The third issue raised by the appellant which coincides with respondent’s 4th issue will now be examined. The question is, whether on the totality of the evidence led by the prosecution there was proof beyond reasonable doubt that the accused with the necessary intent pulled the trigger of the Beretta pistol which released the fatal bullet that hit the deceased? Contrary to the submission of learned Senior Advocate made on behalf of the appellant, and in view of the earlier analysis, made above in respect of the quality of the evidence of p.w 2 the evidence of p.w 8 and p.w 5 having been challenged or contradicted. I am satisfied that there was ample eye-witness account, as narrated by p.w 2 relating to the tragic incident leading to the untimely death of the deceased. We are grateful to the learned appellant’s counsel for reproducing in his brief section 271 of the criminal code of Anambra State under which the appellant was charged. From the narration of the circumstances leading to the deceased. I have no doubt whatsoever, so also was the trial Judge that the unceremonious act of pulling the trigger of the Beretta pistol on that ill-fated date was intended to cause the death of the deceased or intended to do the deceased some grievous harm. Either intention can be subsumed as unlawful killing of the deceased under paragraph (a) or (b) of section 271 of the Criminal Code Anambra State, Cap 36 of the 1986 of the Laws of that State. As I had stated earlier, having for the reasons stated earlier rejected the testimonies of P.W. 5 P.w. 7 and p.w 8 there does not arise any further contestable issue of material contradiction of prosecution witnesses. It is equally baseless to treat the testimony of p.w 2 as hearsay when, as I had earlier observed, that witness stood unshaken as the Rock of Gibralter or A so Rock in the face of relentless stiff cross-examination unleashed by the defence counsel.

One should also take into consideration the evidence of the Police Medical Practitioner, Dr. Dax Madueke Uzu, who testified as P.w. 6 He performed the autopsy on the deceased. This witness testified unequivocally that the cause of death in his opinion was the wound inflicted on the deceased by the bullet, Exhibit 6 which he recovered from the body of the deceased. The witness also confirmed that the gun was fired at a close range but not point-blank. No cross-examination was directed to challenge the testimony of the witness on the cause of death.

With respect, the invocation of the principle of res gestae as it relates to the evidence of p.w 5 who did not know who fired the devastating gunshot, is untenable. The learned trial Judge believing the evidence of P.W.2 as a witness of truth and having myself scrutinised the unchallenged evidence of p. w 2 I am satisfied that there was ample evidence before the learned trial Judge which he properly evaluated to warrant his conclusion that the prosecution had proved their case or guilt of the appellant beyond reasonable doubt.

Additionally, I have considered other possible defences which could be available to the appellant in the circumstances of this case as ably narrated by p.w 2 and other credible evidence and I unable to see how any of such defences can be sensibly, profitably and legally raised in favour of the appellant.

In the result, I hold that on the totality of the credible and permissible evidence led by the prosecution to which no evidence was tendered by the appellant in rebuttal that the prosecution proved the guilt of the appellant beyond reasonable doubt. Contrary to the submission of learned appellant’s counsel that there were many possibilities as to the cause of death, I respectfully disagree. On the contrary, if the court had rejected the evidence of witnesses as it was obliged to do and whose testimonies in court were in conflict with their extra-judicial statements the result would clearly show the straight forward and unshaken evidence of P.w.2 an eye witness to the dastardly incident and p.w 6 the medical expert whose evidence on the cause of death was unchallenged. It follows that the 3rd issue is again resolved against the appellant.

Accordingly, I am clearly of opinion that the appeal deserves to fail. The appeal is hereby dismissed. The conviction and sentence imposed by the learned trial Judge are hereby affirmed. it is pertinent to state in passing that the judgment in this appeal could not be delivered on 4/8/94 and the subsequent days thereafter because of unavailability of court workers who, like other civil servants in the country, were engaged in strike action.

{Nigerian cases referred to:}

Adelumola v State (1988) 1 NWLR (pt.73) 683

Alonge v I.G.P. (1959) SCLR 516

Ankwa v State (1969) 1 All NLR 133

Azeez v State (1986) 2 NWLR (pt 23) 541

Bello v Eweka (1981) 1 S.C. 101

Hausa v State (1994) 6 NWLR (pt. 350) 281

Jizurumba v State (1976) 3 S.C. 89

Motunwase v Sorungbe (1988) 5 NWLR (p.92) 90

Queen v Joshua (1964) 1 All NLR 1

Obiasa v Queen (1962) 2 SCNLR 402

R.V. Ukpong (1961) 1 SCNLR 53

Stephen v State (1986) 5 NWLR (pt.46) 978

Sugh v State (1988) 2 NWLR (pt.77) 375

Williams v State (1975) 9-11 S.C. 139

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