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SAIDU KAWU, J.S.C. (Presided)
PHILIP NNAEMEKA-AGU, J.S.C.
ABUBAKAR BASHIR WALI, J.S.C.
OLAJIDE OLATAWURA, J.S.C.
UCHE OMO, J.S.C. (Read the Leading Judgment)
CRIMINAL LAW AND PROCEDURE – Defences – Alibi – Accused raising two conflicting alibis – Whether prosecution bound to investigate in such circumstance
CRIMINAL LAW AND PROCEDURE -Defences -Alibi -Plea of -Duty on pal ice to investigate – When it does not arise
CRIMINAL LAW AND PROCEDURE-Murder-Proof of-Burden on prosecution – How discharged
CRIMINAL LAW AND PROCEDURE – Proof – Contradictions in evidence of prosecution witness – Whether all contradictions will vitiate conviction – Relevant consideration
CRIMINAL LAW AND PROCEDURE – Tainted witness – Who is.
EVIDENCE -Alibi -Accused raising two conflicting alibis -Whether prosecution bound to investigate in such circumstance
EVIDENCE -Proof -Contradictions in evidence of prosecution witness – Whether all contradictions will vitiate conviction – Relevant consideration
EVIDENCE – Murder – Proof of – Burden on prosecution – How discharged.
EVIDENCE – Witness – Tainted witness – Evidence of – How treated
WORDS AND PHRASES -”Tainted witness” – Who is.
M.P. Ohwovoriole, Esq., SAN (with him, P.A. Mrakpor and G.T. Agberese) -for the 1st Appellant.
Sola Rhodes, Esq., (with him, M. O. Oguntona (Miss) and J. Aburime (Miss) ) -for the 2nd Appellant.
B.A. Olaogun, Esq., (with him, K. S. Olutekunbia, Nang Umo-Ette, (Miss), B. O. Lapite and Gboyega Kolade) -for the 3rd Appellant
Bode Rhodes-Vivour, Esq., Director of Public Prosecutions, Ministry of Justice, Lagos State -for the Respondent
OMO, J.S.C. (Delivering the Leading Judgment): The appellants are three of the six persons who were charged in the Lagos High Court on three counts of conspiracy to commit armed robbery, armed robbery and murder, contrary to sections 402(1)(a), 403 and 319(1) of the Criminal Code of Lagos State. Whilst the three appellants were convicted of the murder of one Muyili Tijani, a security man, and of the lesser offence of robbery contrary to section 402(1) of the Criminal Code; the 4th to 6th accused were discharged of the crime of murder, but convicted of robbery simpliciter and sentenced to 21 years imprisonment. The charge of conspiracy was withdrawn and struck out. All of the accused except the 4th accused, appealed against their conviction to the Court of Appeal where their convictions and sentences were affirmed, except for the 5th accused whose appeal was allowed. It is against this judgment of the Court of Appeal that the appellants have appealed to this Court.
The case for the prosecution in the trial Court is that the three appellants were part of an armed gang which forcibly invaded the house of Mrs. Jumoke Oshodi at Gbagada on the night of 11/12/82, led by the 1st appellant. Whilst there, they robbed the inmates of the house of various household items and some cash, and in the process murdered Mrs. Oshodi’s night guard- Muyili Tijani. P. W. I and P. W.3, who lived in the premises, gave eyewitness account of the robbery and identified the six persons charged as part of the murderous crowd with the help of illuminated globes at the four comers of the house and other bright lights outside. They specifically identified the appellants as the persons who killed the deceased night guard.
All the accused persons gave evidence in their defence, denying the offences charged. Most of them pleaded alibis and some called witnesses in support of their plea. The 1st accused/appellant “charged” P.W. I (the complainant) with being a tainted witness.
The learned trial Judge in his reserved judgment largely believed the evidence of the prosecution, rejecting the defences of alibi raised. The eye-witness accounts of P.W. 1, and P.W.3 were believed. Consequently the accused persons were found guilty as stated earlier in this judgment.
The three appellants to this Court filed briefs in support of their appeals. In those of the 2nd and 3rd appellants, after stating the facts and history of the case, counsel stated they had nothing to urge in favour of the appellants and called for the unequivocal affirmation of the judgments of the trial court, and the Court below. Only the 1st appellant filed a brief of argument challenging the decision of the Court below, and urging this Court to allow his appeal and set aside the judgment of the court below.
Four issues for determination are set out in the brief of the 1st appellant as follows:-
“1. Whether P.W. I and P.W.3 are tainted witnesses in this case.
The respondent in its joint brief raised five issues for determination, thus:-
”1. Whether PW I and PW3 were tainted witnesses.
“The main thrust of the argument of the 1st appellant in this respect is that PW l was ‘nursing grudges’ against the 1st appellant which grudges made the 1 st PW a tainted witness. It is the contention of the 1st appellant that PW 1 approached the 1st appellant to sell his land to PW I’s friend which offer the 1st appellant turned down. It is concluded by the 1st appellant therefore that as the 1st appellant failed to sell his land to PW 1’s friend, PW l maintained grudges against the appellant which grudge coloured her evidence.”
In the course of his oral submission on this issue before us, learned senior counsel for the 1st appellant was asked
Court Q: Did you put the facts on which you now rely to say P.W. I and P.W.3 are tainted witnesses to them?
to which he replied
To be capable of inducing belief, the story of the alleged land transaction and the bad blood between P.W.1 and the appellant which it is alleged resulted drcrelir,m must be put to P.W. 1 under cross-examination for her to answer to. It is only after she has done so that the trial Court can be in a position to decide firstly on the veracity of the allegation, and secondly, whether it in fact affected or is capable of affecting the mind of the complainant (P.W.1), so as to justify her being classified as a tainted witness. Not only was this not done, but as respondent’s counsel had rightly submitted, the allegation was not made timeously to wit, in the 1st appellant’s statements to the police (Exhibits C, D2 and E). It was only made from the witness box, after the 1st appellant had testified. As against this story of P.W. 1. being a tainted (and therefore prejudiced) witness, there is the evidence of the 1st appellant himself in his statement to the police that she used to give him money. It is therefore not surprising that the learned trial Judge disbelieved the allegation. A “tainted” witness has been described as a witness who is either an accomplice or who by the evidence he gives may and could be regarded as “having some purpose of his own to serve” (I) The State v. Dominic Okolo & Ors (1974) 2 S.C. 73 (82); (1974) 1 All N.L.R. 466 (474); (2) Ishola v. The State (1978) 9-10 S.C. 81(100); (3) Mbenu v. The State (1988) 3 NWLR (Pt.84) 615. The Supreme Court has held that the evidence of such a witness should be treated with considerable caution and be examined with a tooth comb (per Nnamani, J.S.C. in Mbenu v. The State – supra – at p.626). Even if the allegation were true, that solitary event can hardly be enough to justify P. W. I being regarded as someone who had a purpose of her own to serve by her testimony, and therefore rightly to be described as a “tainted witness.” However, the learned trial Judge very correctly disbelieved that allegation, and there is therefore nothing to hang that issue raised on. Finally no evidence has been given against P.W.3 Adijat Adetoro, alleging either a quarrel or prejudice/bias. She appears to have been put in this category purely because she is a relation of P.W. 1 and lives with her – a sort of “guilt by association.” The answer to the 1st issue as framed therefore is – No, they are not tainted witnesses.
The second issues set out by the 1st appellant and the respondent also coincide. The submission of 1st appellant’s counsel here is that the defence of alibi relied on by the 1st appellant was raised timeously and the police had a duty to investigate same which they failed to do vide Salami v. The State (1988) 3 NWLR (Pt.85) 670 (676/7); Ozaki v. The State (1990) 1 NWLR (Pt. 124) 92 (108/9). In view of the fact that learned senior counsel decided in the course of his oral submission not to press this issue any longer, I do not propose to deal with it in any detail. Suffice it to say that the case of the 1st defendant is one of the exceptions to the rule that the police has a duty to investigate an alibi timeously raised. This is because he gave two separate and contradictory stories as his alibi. To be more precise, he stated he was in two different places on the date the offence was committed. In Exhibit D2 which he made on 13/12/82 (two days after the commission of the offences charged) he said that he travelled to Ikorodu where he was on 11/12/82. But in Exhibit C, his second statement to the police which he gave on 29/12/82, he said that on 11/12/82 – the day the robbery/murder took place, he was throughout the night in his house (vide page 114 of record of proceedings). These two alibis are irreconcilably in conflict because he cannot be in his room in Bariga (Lagos) and in his family house in Ikorodu at one and the same time. The law in such circumstances is that there is no duty on the prosecution to investigate the alibi of the accused, which must therefore be deemed not established vide Ozaki v. The State (supra) – at pp.86 and 109); Adio v. The State (1986) 3 NWLR (Pt.31) 714. Such alibi is rejected because the accused is deemed to have failed to discharge the evidential burden placed on him of adducing or eliciting some evidence tending to establish his alibi (“being elsewhere” at the time of the offences charged) vide Adio v. The State (supra – at p.716). What is more the further evidence called by the 1st appellant to support his plea of alibi – the evidence of his grandfather (D.W.2) proved worthless, because all he was able to say is that the 1st appellant came to Ikorodu sometime before Christmas. As against this plea is the visual identification evidence of P.W. I and P. W.3 which the Court believed, and which therefore effectively destroyed 1st appellant’s attempt at pleading an alibi vide Njovens v. The State (1973) 5 S.C. 17; Madagwa v. The State (1988) 5 NWLR (Pt.92) 60 (74).
The third issue raised by both sides deal with contradictions in the evidence of the prosecution. The 1st appellant is questioning alleged contradictions in the evidence of P.W.1, P.W.3 and P.W.7 which he says are fundamental and have vitiated the prosecution’s case in respect of the charge of murder. Although the issue as framed covers both offences of robbery and murder, the submissions in the brief and in oral submission were limited to the offence of murder. The contradiction which appellant’s counsel heavily relied on, is as to whether the deceased was “slaughtered” like a ram i.e. by application of a matchet to his neck and almost severing his head off his neck (as per evidence of P.W.1 and P.W.3), or whether he died as a result of fractured skull, which injury was caused by a heavy object (per P.W.7). In the submission of learned senior advocate for the appellant, these differences in the evidence of P. W.1, P.W.3, P.W.5 and P. W.7 are enough to create reasonable doubt in the mind of the trial Judge, the benefit of which should have enured to the benefit of the appellant. Respondent’s counsel has however sought to show that factually both pieces of evidence are not really contradictory and are sufficiently approximate to one another as to negative any reasonable doubt in the matter. He set out the relevant part of the evidence of P.W.7, the doctor who performed the post-mortem examination, in his brief thus –
“There were lacerations on top of the forehead. Both eye brows had lacerations. Right side of the cheek, upper lip, left side of the neck, right shoulder, right lower arm 5 c.m. by 2 c.m. bore deep, laceration on left arm of 4 c.m. bore deep. He had fracture on skull. Frontal bone and also mandible.”
and proceeded to submit that those injuries inflicted were multiple lacerations which clearly evidenced a brutal attack. There were lacerations on the “left side of the neck”; and lacerations are produced by matchets, which can also fracture the skull. He finally submitted that whatever “contradiction” there is in the evidence of the witnesses referred to is not material and cannot lead to any miscarriage of justice vide Onaisade v. The Queen (1964) 1 All N.L.R. 233; Asariyu v. The State (1987) 4 NWLR (Pt.67) 709. 1 agree completely with the submissions of respondent’s counsel. The evidence of P.W. 1 and P.W.2 which said the deceased was being slaughtered like a ram by the appellant and his associates in crime can be described as an exaggeration, which was however not too far from the truth, because multiple injuries were inflicted on the deceased including laceration on the neck. It is immaterial whether it was the “slaughtering” or the “fracture of the skull” which led to the deceased’s death. It is enough that the appellant was involved in the attack (in fact he led it) and took part in actually killing the deceased. The answer to appellant’s third issue is therefore, No.
The submission of the appellant’s counsel on the fourth issue is that the prosecution failed to prove the cause of the death of the deceased as required by law. This submission is also based on the differences in the evidence of P.W. 1, P.W.3, P.W.5 and P.W.7, dealt with on Issue 3, as to the nature of the injuries inflicted. In a case of homicide it is incumbent on the prosecution to prove the cause of death, and it can do this either by direct evidence or circumstantial evidence that creates no room for doubt or speculation vide R.v. Oledinma (1940) 6 W.A.C.A.202; Uyo v. Attorney-General of Bendel State (1986) l NWLR (Pt.17) 418 (426); Gabriel v. The State (1989) 5 NWLR (Pt. 122) 457. In the present case the evidence is direct and is supported by medical evidence; the cause of death not being a matter of inference from established facts. The evidence of P.W.7, part of which has been set out earlier, states the cause of death to be a fractured skull inflicted by a heavy object. The eye witness accounts of P.W. 1, P.W.3 and P. W.5 show that there were multiple injuries inflicted on the deceased, but the first two witnesses laid emphasis on the neck injury, – the “slaughtering” of the deceased. As far as the cause of death is concerned, the evidence of P.W.7, the medical evidence, has primacy and it is in that respect not inconsistent with the evidence of the other witnesses. Where these are several injuries (as all the witnesses testified to) only one of them can be the real cause of death. That has been determined by the medical evidence which was satisfactory and believed by the trial Judge. The others mayor may not have contributed to the death of the deceased. It is a different situation where the eye-witness account is that the deceased was shot and the medical evidence as to the cause of death is matchet wounds. In this case therefore, the prosecution discharged the burden of proof placed on it to establish the cause of death. It is also the further duty however of the prosecution to prove that the death of the deceased was caused by the appellant. It is in this connection that appellant’s counsel has submitted that Exhibit B – the statement of P. W.3 to the police is telling a different story, in that it is therein stated that one “Wake Up” (the alias of the third appellant, Olumnti Adekoya) was responsible for the death of the deceased. That is not entirely correct. In Exhibit B, P.W.3 is also recorded as stating that whilst one of the robbers held Baba Ijebu (i.e. the deceased) by the throat “the rest of the robbers started matcheting Baba Ijebu on his body when Baba Ijebu was lying down unconscious the robbers left him lying down.” It was only on their way going that 1st appellant instructed 3rd appellant “Wake Up” “to kill him finally because he is not dead.” Although the story that the 1st appellant said they should kill Baba Ijebu before going away is repeated by P.W.3 in her evidence in Court, she never stated that 1st appellant instructed 3rd appellant to do so, which he did. She rather gave a version of the story, more consistent with P.W.1’s i.e. that 1st, 2nd and 3rd accused were actively involved in the final “slaughtering” of the deceased. Whichever version of the final act is preferred, the 1st appellant was rightly convicted for murder as an active participant therein. Nor can the result be any different were the evidence of P.W.3 in this respect to be deemed unreliable. The Court still has the evidence of PMA which it believed, to fall back on. In conclusion therefore on this issue, the prosecution established that the 1st appellant was one of those responsible for the death of the deceased, the trial Court convicted him accordingly and the Court of Appeal affirmed this conviction. I find no reason for disagreeing with these concurrent findings of the two Courts below.
All the issues raised having failed to support the appeal of the 1st appellant, it is finally dismissed. I agree with the submission of counsel for the 2nd and 3rd appellants that there is nothing to urge on their behalf in this appeal. There is, as counsel for the respondent has stated, no merit in their appeals, which are also hereby dismissed. The convictions and sentences of the appellants are consequently affirmed.
KA WU, J.S.C.: I have had the advantage of reading, in draft, the lead judgment of my learned brother, Uche Omo, J.S.C. which has just been delivered. I am in complete agreement with him that the appeal lacks merit and should be dismissed. Having carefully perused the record of proceedings, I am satisfied that the appellants were properly tried and convicted by the trial Court and that the Court of Appeal was right in upholding their convictions and sentences passed on them. I too will dismiss their appeals and affirm their convictions and sentences.
NNAEMEKA-AGU, J.S.C.: I have had the privilege of a preview of the lead judgment just delivered by my learned brother, Uche Omo, M.C. I agree with hi, reasoning and conclusions and adopt them as my own.
I, therefore, also dismiss the appeals and subscribe to the order made by him in the lead judgment.
WALI, J.S.C.: I had the advantage of a preview of the lead judgment just deliverer I by my learned brother, Uche Omo, J.S.C. I entirely agree with his reasoning anti the conclusion arrived at by him that the appeals of the appellants lack merit and are dismissed.
For the same reasons contained in the said lead judgment, I too am satisfied that the appeals have no merit and I accordingly hereby dismiss them and affirm the convictions and sentences of the appellants by the lower Courts.
OLATAWURA, J.S.C.: I had the advantage of reading in draft, the judgment of my learned brother Uche Omo, J.S.C. just delivered. I agree with his reasoning and conclusions. This appeal lacks merit and is accordingly dismissed.