AGBATSE v. STATE (2020)

AGBATSE v. STATE

(2020)LCN/14518(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Monday, July 13, 2020

CA/MK/1C/2018

Before Our Lordships:

Adamu Jauro Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

AYONGO AGBATSE APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

BURDEN OF PROOF IN CRIMINAL MATTERS

It is well settled in our criminal jurisprudence that the burden of proving the guilt of an accused person in a criminal trial must be discharged beyond reasonable doubt;Ogundiyan v. State (1991) LPELR-2333(SC), [1991] 1 NSCC 448. While the prosecution must prove the guilt of an accused person, there is no corresponding burden laid on the accused person to prove his innocence; Ayinde v. The State (2018) LPELR-44761(SC); Abokokuyanro v. The State (2016) LPELR-40107(SC) The State v. Musa Danjuma (1997) LPELR-3216(SC). An accused person is presumed to be innocent until his guilt of the offence is established; Section 36(5) Constitution of the Federal Republic of Nigeria, 1999, as amended.
Judicial pronouncements have sought to clarify what is implied in a proof beyond reasonable doubt. It does not mean proof to a scientific or absolute certainty;The State v. Azeez (2008) 4 S. C. 188; Shande v. State (2005) 12 MJSC 152; John Agbo vs. State (2006) 1 S.C. (PT. II) 73; Udo v. State (2006) 7 S.C. (PT. II) 83. ‘Proof beyond reasonable doubt’ therefore 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.PER OTISI, J.C.A.

WHETHER OR NOT ONE SOLITARY WITNESS IS ENOUGH TO PROVE HIS OR HER EVIDENCE

The law is quite settled that one solitary witness is enough, if his or her evidence proves the essential issue in dispute, and, if he or she is believed; Adelumola v State (1988) LPELR-119(SC), (1988) 1 NSCC 165; Afolalu v State (2010) 6-7 MJSC 187; Ime Idiok v. State (supra), (2008) 6 MJSC 36, (2008) 4-5 S. C. (Pt. I) 84. 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.
The guilt of an accused person can be established by:
1. His direct, positive and voluntary confessional statement;
2. Circumstantial evidence.
3. Direct oral evidence given by a victim or by a witness who saw and watched the act.
See: Mustapha Mohammed v. State (2007) 4 S. C. (PT. I) 1, Igabele v. State (2006) 5 MJSC 96; Okpulor v. State 1990 7 NWLR (Part 164) 581; Udo v State (supra); Afolalu v State (supra); Emeka v. State (2001) 88 LRCN 234; Ime David Idiok v. The State (supra). Also instructive are the provisions of Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011, 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; Osetola v. State (2012) LPEL-9348(SC); Alabi v. State (1993) 7 NWLR (PT 307) 511 at 523; Ajayi v. State (2013) 2-3 MJSC (PT 1) 59. PER OTISI, J.C.A.

DEFINITION OF A TAINTED WITNESS

The accepted definition of a tainted witness is a person, who is either an accomplice or who, by the evidence he gives, may and could be regarded as having some personal purpose to serve. Evidence of such a witness should be treated with considerable caution “and examined with a tooth comb”; Omotola & Ors v. The State (2009) LPELR-2663(SC); Adetola v. The State [1992] 4 NWLR (Pt.235) 267; Ishola v The State (1978) LPELR-8043(SC). The fact that there is a blood relationship between a victim and a prosecution witness is not sufficient in itself to make the witness a tainted witness, whose evidence is unreliable, unless corroborated; Ben v. The State (2006) LPELR-770(SC); Egwumi v. The State (2013) LPELR-20091(SC)); Idagu v. State (2018) LPELR-44343(SC). Explaining why the evidence of a witness who has a blood relationship with a victim may not mandatorily be treated with caution as originating from a tainted witness, the Supreme Court, per Oguntade, JSC in Omotola & Ors v. The State (supra) at pages 41 – 42, said:
“It was undisputed that P.W.s 7, 10 and 11 are the children of the deceased. But did that fact alone make them tainted witnesses? I do not think so. Every citizen has the duty to come forward and offer assistance in the diligent detection and prosecution of crime. Their blood relationship with the victim of crime may constitute an additional incentive to come forward to testify in a Court case. But that in my view, cannot be regarded as a basis to describe their evidence as untrue, biased or tainted. I am unable to accept the submission that the evidence of P.W’s. 7, 10 and 11 was lacking in the requisite quality and objectivity just for the reason that they were the children of the deceased. It would have served the interests of the appellants better if counsel concentrated in showing that they did not observe what they claimed to have witnessed or that their evidence in some way was incredible. Asking that their evidence be rejected as tainted witnesses just because they were the children of the deceased isin my view unhelpful.” PER OTISI, J.C.A.

WHETHER OR NOT IT IS ONLY MATERIAL DISCREPANCIES IN THE TESTIMONY OF A WITNESS CAN BE FATAL AND MUST GO TO THE ROOT OF THE CHARGE BEFORE THE COURT

It is settled law that it is only material discrepancies, which constitute substantial disparagement of the witnesses concerned, in the sense that reliance on their testimony will likely result in miscarriage of justice that impacts negatively on the case of the party, who relies on such evidence. Therefore, the contradiction in the testimony of a witness, which will be fatal, must be substantial and must go to the root of the charge before the Court. It must be one that touches an important element of what the prosecution needs to prove in the case; Princent & Anor v. The State (2002) LPELR-2925(SC); Dibie & Ors v. State (2007) LPELR-941(SC); Ochani v. The State (supra); Ukpong v. The State (2019) LPELR-46427(SC). Minor discrepancies that do not affect the credibility of a witness may not be fatal; Uche v. State (2015) LPELR-24693(SC); Idi v The State (2017) LPELR-42587(SC). PER OTISI, J.C.A.

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Benue State High Court sitting at Makurdi Coram J.M. Ijohor, J., delivered on November 28, 2016 in MHC/64c/2013, in which Appellant was convicted of the offence of Culpable Homicide and sentenced to death.

The facts leading to this appeal may be summarized thus: The Appellant with two others were arraigned before High Court, Makurdi Benue State and charged with the offences of Conspiracy and Culpable Homicide punishable with death, contrary to Sections 97 and 222 of the Penal Code Revised Edition, Laws of Benue State, 2004. The Appellant was the 2nd accused person. The case of the prosecution was that on 8/2/2013 at Kuve Unit of the Motorcycle Hirers Association, Guma Local Government Area of Benue State, the Appellant conspired with the other accused persons and committed Culpable Homicide by causing the death of one James Yongoikyo by stabbing him on his abdomen. The Appellant pleaded not guilty to the two-count charge.

At the trial, the Respondent called six witnesses and tendered eight exhibits. At the close of the case of the

Respondent, the Appellant made a no case submission, which was overruled by the lower Court, and he was called upon to enter his defence. The Appellant testified and called no witness. At the conclusion of hearing, the learned trial Judge convicted the Appellant on the second count of Culpable Homicide and sentenced him to death.

Aggrieved with the decision of the lower Court, the Appellant lodged the instant appeal by Notice of Appeal filed on 23/2/17 on five grounds of appeal, pages 127-136 of the Record of Appeal.

The parties filed Briefs pursuant to the Rules of this Court. At the hearing of this appeal on 10/6/2020, the Appellant’s Brief, which was filed on 23/11/2018 but deemed properly filed and served on 3/6/2020, was adopted by S.M. Anongo, Esq. The Respondent’s Brief, which was filed on 8/6/2020, was adopted by P.M. Uchi, Esq., Principal State Counsel 1, Ministry of Justice, Makurdi.

The Appellant distilled three Issues for determination:
1. Whether the learned trial Judge cautioned herself in believing the evidence of Pw5 who is an in-law to the deceased before sentencing and convicting the Appellant on the evidence

(Distilled from grounds 3 and 4 of the ground and Notice of Appeal).
2. Whether or not the learned trial Judge was right to hold that the prosecution has proved its case beyond reasonable doubt to warrant the Conviction of the Appellant in the face of Contradictions and inconsistencies in the prosecution’s witnesses, extra judicial statement and from their oral evidence before the trial Judge (Distilled from ground 2 and 5 of the grounds and Notice of Appeal).
3. Whether or not the learned trial Judge properly evaluated the evidence before the Lower Court in convicting and sentencing appellant to death (Distilled from Ground 1 of Appeal).

The Respondent adopted the three Issues formulated by the Appellant but was of the view that the said three Issues can be subsumed into a sole Issue as follows:
Whether the learned trial Judge was right to hold that the prosecution has proved its case beyond reasonable doubt to warrant the conviction of the Appellant?

I agree with the Respondent’s Counsel that the sole Issue as framed subsumes the three Issues formulated by the Appellant. I shall therefore adopt the sole Issue as framed by the

Respondent for the determination of this appeal.

Arguments
The Appellant’s Counsel called the attention of the Court to the evidence relied upon by the learned trial Judge. PW5 was said to be a brother-in-law to the deceased, who from his statement at the Police Headquarters Makurdi, held grudges against the Appellant. Counsel submitted that the trial Court ought to have cautioned itself on this fact before accepting and relying on the evidence of PW5 in convicting and sentencing the Appellant. The decision in Ikaria v. State (2011) 19 WRN 64 at 67 was cited and relied on.

Counsel was of the view that the learned trial Judge was wrong to have held that cause of death of the deceased was not in doubt without resort to medical report. In the extra judicial statement of PW1, he stated that the deceased had an accident, though he denied this under cross examination. The evidence of PW3 was that the deceased was being pursued and had an accident. PW5 under cross examination gave a different account of the incident from his evidence in chief. The trial Court ought not to have believed the evidence of PW5. The Appellant who denied stabbing the

deceased, testified that when he arrived at the scene of the crime, he saw PW2, PW3, PW5 and 3rd accused person and they told him that the deceased died by an accident. Counsel posited that the different pieces of evidence created doubt as to the cause of death which a medical report would have dispelled. In his postulation, the cause of death of the deceased was not proved. Counsel further submitted that in view of the material contradictions and inconsistencies in the extrajudicial statements and the oral evidence of the prosecution witnesses before the Court, the prosecution did not prove its case beyond reasonable doubt to warrant conviction and sentence of the Appellant. It was submitted that where a witness has made a statement before trial which is inconsistent with the evidence he gives in Court, provided that no cogent reason is given for the inconsistency, the Court should regard the evidence as unreliable, citing the case of State v Abeda (2012)5 BNLR 70(a)71. The Court was invited to note that PW5 did not give any cogent and reason for the difference between his evidence before the trial Court and his extrajudicial statement. It was therefore

submitted that the trial Court was wrong to have relied on the evidence of the PW5 as same was unreliable.

It was submitted that the standard of proof in a case of this nature must be beyond reasonable doubt as enshrined under Section 135 of the Evidence Act, 2011. The case of Usa v State (2002) FWLR (pt. 85) 382 CA was also cited ad relied on. In the instant case, it was argued that the prosecution witnesses, particularly PW5, by their unreliable, contradictory and inconsistent evidence have cast reasonable doubt as to the guilt of the Appellant. An accused person ought not to be convicted in the face of such inconsistent unreliable evidence, citing Osmund Onuoha v. State (1998) 5 NWLR (pt. 548) 118; Muka v. State (1976) 9-10 SC 305. Counsel therefore submitted that where the prosecution fails to prove the guilt of the Appellant beyond reasonable doubt by proving the essential ingredients, the accused person is entitled to acquittal, relying on Onuchukwu v State (1998) 4 NWLR (Pt. 547) 576 at 592.

It was further argued that where the trial Court has failed to properly evaluate the evidence, the appellate Court will be in good position to so

review the evidence and make necessary assessment, citing Abdullahi v. The State (2005)17 NWLR (Pt. 1115) 203 at 219. The failure to do so amounts to a denial of fair hearing and that this has occasioned a miscarriage of justice, citing Nwosu v State (Supra) at 441. The Court was urged to allow the appeal.

For the Respondent, it was submitted that the Respondent had proved the case against the Appellant beyond reasonable doubt. Under Section 222 of the Penal Code, Revised Edition (Laws of Benue State) 2004, for the prosecution to prove a charge of Culpable Homicide punishable with death, the ingredients to be proved were: that the death of a human being has taken place; that such death has been caused by the accused and that the act was done with the intention of causing death, citing Fatilewa v. State (2007) 1 FWLR 452. From the evidence before the trial Court, the prosecution proved beyond reasonable doubt the ingredients of the offence against the Appellant. The evidence of PW5, who was an eye witness to the crime, was corroborated by the evidence of PW1. It was submitted that the evidence of PW1 – PW5, which stood unchallenged, established the offence

against the Appellant without more. No evidence is as cogent and direct as that given by a person who was a victim of a crime or who witnessed the commission of the crime, relying on Ime David Idiok v The State (2010) 8 LRCN CC 96 at 102.

The Court was urged to hold that the offence of Culpable Homicide punishable with death was proved by the prosecution at the trial Court and affirm the conviction and sentence of the Appellant, dismissing the appeal.

Resolution
I must first express my profound surprise and disappointment at the brevity and hollowness of the Respondent’s Brief. The entire arguments of the Principal State Counsel, P.M. Uchi, who settled the Respondent’s Brief, were set out on pages 4 and 5 of the Brief, precisely confined only to paragraph 4 thereof. The issues raised by Mr. Anongo, the Appellant’s Counsel, which he took time to marshal out in his Brief, were not addressed comprehensively by Mrs. Uchi. The Appellant was convicted and sentenced to death for culpable homicide. The Appellant’s Counsel has done his duty of trying to save the Appellant. The Respondent’s Counsel had the corresponding

responsibility to convince this Court that the trial Court was on the right path. But, the entire burden of shifting through the arguments of Mr. Anongo has been left for the Court! This is not at all commendable.

(2006) 1 S.C. (PT. II) 73; Udo v. State (2006) 7 S.C. (PT. II) 83. ‘Proof beyond reasonable doubt’ therefore 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. The law is quite settled that one solitary witness is enough, if his or her evidence proves the essential issue in dispute, and, if he or she is believed; Adelumola v State (1988) LPELR-119(SC), (1988) 1 NSCC 165; Afolalu v State (2010) 6-7 MJSC 187; Ime Idiok v. State (supra), (2008) 6 MJSC 36, (2008) 4-5 S. C. (Pt. I) 84. 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.
The guilt of an accused person can be established by:
1. His direct, positive and voluntary confessional statement;
2. Circumstantial evidence.
3. Direct oral evidence given by a victim or by a witness who saw and watched the act.
See: Mustapha Mohammed v. State (2007) 4 S. C. (PT. I) 1, Igabele v. State (2006) 5 MJSC 96; Okpulor v. State 1990 7 NWLR (Part 164) 581; Udo v State (supra);

Afolalu v State (supra); Emeka v. State (2001) 88 LRCN 234; Ime David Idiok v. The State (supra). Also instructive are the provisions of Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011, 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; Osetola v. State (2012) LPEL-9348(SC); Alabi v. State (1993) 7 NWLR (PT 307) 511 at 523; Ajayi v. State (2013) 2-3 MJSC (PT 1) 59.

The Appellant was convicted and sentenced pursuant to the provisions of

Section 222 of the Penal Code Revised Edition, Laws of Benue State, 2004, which provides:
Culpable homicide shall be punished with death –(a) If the act by which the death is caused is done with the intention of causing death; or
(b) If the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause.
Thus, the elements to be proved by the prosecution, beyond reasonable doubt, are: –
(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 (supra); Nwaeze v State (1996) 2 NWLR (Part 428) 1; Gira v. State (1996) 4 NWLR (PT 443) 375; Edoho v State (2010) 4 MJSC (PT. 1) 1. The Appellant asserts that the elements of the offence were not proved beyond reasonable doubt. The Respondent asserts otherwise. The evidence adduced

must now be examined to see if the conclusions of the trial Court were in line thereto.
(a) That the deceased died
It was not disputed that the deceased, James Yongokyo, died on 8/2/2013. He did not die naturally.
(b) The death of the deceased resulted from the act of the Appellant
The evidence adduced by the prosecution witnesses was not totally divergent. PW1, Alfred Wekwase, testified that he saw the deceased speeding on a motorcycle around 10 – 11am on 8/2/2013 towards the river side. Following close behind him, also speeding on motor cycles, were the 3rd accused person, Doolumun Ukula, and the Appellant, who had PW5 as his passenger on his motorcycle. PW1 said he later saw the 3rd accused person, the Appellant and PW5 returning but he did not see the deceased. Sometime later, one Aondonenge Ukaa, PW3, a motor cyclist, who had conveyed a passenger to the river side, told him that he saw man lying on the road, unresponsive. Terver Hemba, PW2, conveyed PW1 to the scene where they saw the deceased in an unresponsive state and took him to the hospital. PW1 said they discovered a deep cut on the lower abdomen of the deceased.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

PW2, Terver Hemba, also said that the deceased passed him speeding on a motorcycle. The Appellant followed him behind also speeding on a motorcycle and shortly after that the Appellant returned. He further testified that PW3 told them in the market that on his way back from the river side he saw someone who had an accident and was seriously injured and was bleeding by the side of the road. He testified, as did PW1, that they went to the scene and found the deceased. He further said, page 61 of the Record of Appeal:
“The deceased was bleeding profusely around his abdomen…Looking at the deceased, there was no sign of accident or bruises on any part of his body. The motorcycle he previously rode was standing upright so I knew he did not have an accident. The only injury he had was the cut on his abdomen.”

Under cross examination, he said, page 62 of the Record of Appeal:
“It is true that I told the police that I suspected that the 2nd accused (the Appellant) killed the deceased. I suspected him because of the things he had been doing and I saw him do that I suspected him. The 2nd accused had also threatened us at the

police station that if anyone of us give evidence against him or tell the police or the Court that he was pursuing the deceased on his motorcycle, he will kill us.”

The testimony of PW3, Aondonenge Ukaa, was in line with the evidence of PW1 and PW2 except that he added that the Chairman of the Motorcycle Hirers Association informed him that the Appellant and 1st and 3rd accused persons told the Chairman that they were pursing the deceased when he fell and seriously injured himself. PW4 was the father of the deceased. He was not present at the scene but repeated what he said 1st accused person had told him had happened to the deceased. He added, page 64 of the Record of Appeal:
“Later, the deceased was brought home. I examined his body and saw a very deep hole in his abdomen. When this happened, I asked my elder brother, Simon Yongokyo, to report the case to the police at Tse-Abi.”

PW5, Terzungwe Kombu, was the main witness of the prosecution. He said, page 67 – 68 of the Record of Appeal:
“At about 12: 30 pm on Friday 8/2/2013, I was going to Iche Numbur to buy recharge card. Behind me I heard the sound of a

motorcycle. I turned round and saw the 2nd accused person he asked me where I was going I told him I was going to buy a recharge card he offered to convey me there on his motorcycle. When we got closer to Iche Inumber, he told me he wanted to collect something at a place further on. He asked me to allow him go there first, and said he would bring me back to Iche Inumbur. I agreed. When we get there, he did not stop but proceeded further. I asked him why he did not stop at the place where he wanted to collect something and still passed and he pointed to the deceased who was ahead on the motorcycle and said he wants to collect something from him. He increased his speed and we hit a pot hole. When we got closer to the deceased, he hit another pot hole and I jumped off the motorcycle and fell. I dislocated my right finger. Before I got up, I saw that he continued going and blocked the deceased in front after overtaking him. The deceased also stopped. 2nd accused person now grabbed the deceased. The deceased asked him what was wrong, but he told the deceased to shut up. The 2nd accused now removed a knife. When I saw the knife, I tried to intervene. I tried to use

my right leg to hit his right hand in which he was holding the knife. When I attempted to do this, he wounded me on my leg with the knife. He then stabbed me. After stabbing me, I was shocked and I asked him whether that was what he brought me here to come and see. He then started his motorcycle and asked me to sit so that he would convey me back. I refused to sit on the motorcycle…Again I asked him whether this was what he wanted me to witness and he said it is none of my business and if by mistake I mention that he is the person who stabbed the deceased then he will deal with me. When he said this, I became afraid because I know what he can do…On our way back…He called on the chairman of the Motorcycle Hirers’ Association, saying the deceased cut the rope which they put across the road so in the process of pursuing him, the deceased fell from his motorcycle and sustained injuries and that the Chairman should go and take him to hospital.”

Under cross examination, he said that at the time of the deceased was stabbed, only the deceased, the Appellant and himself were present. He further said that the 3rd accused was a

short distance away when the actual stabbing took place but present when the Appellant told him (PW5) to mount his motorcycle.

In his extra judicial statement, which was admitted in evidence as Exhibit E, PW5 stated:
“…I …left my house to go and buy recharge card at Tse Inumbur then I met Ayongo Agbatse on his Motorcycle and he asked me where I was going I now told him I was going to buy a recharge Card he now asked me to join him that he will drop me at the area then I joined him but getting to the area I was going he rode the motorcycle on high speed and passed the area I demanded to know why he passed the place on high speed but he said he wanted to collect something in the front not knowing(sic) to me that he was pursuing Yongoikyo who was also on a motorcycle when he was about to double cross him. I jumped from the Motorcycle and sustained an injury on my legs and when he removed a knife to stab him and in trying to stop him from stabbing the deceased, I got dislocation on my finger which(sic) he stabbed him in my present Ayongo grab James Yongoikyo now deceased my brother in-law without delay he stabbed him with a knife and

dropped him in a pool of this blood on the ground”..I did not tell anyone because of the knife, as he promised that if I revieled(sic) to anyone he will also deal with me the same way, due to this fact I was afraid to say it out. Ayongo Agbatse has been a terrible person in our Village, he one time shot my mother which she is still receiving treatment in the hospital, he also put my house ablaze which I took nothing out of the house. I still state further that he Ayongo Agbatse was the person that killed James Yongokyo the deceased now. Sometimes(sic) in 2011 which I could not remember the date Ayongo pursued one boy with an axe that he was owing him and this boy was saved by one Daniel Nor. This(sic) are the instances I found him that made me to be afraid of him. Doohumun was not at the scene only me and Ayongo that were at the scene. Thereafter he went straight to the Chairman of motorcycle hirer and lied that he pursued one boy who cut the rope and the(sic) fail(sic) from his motorcycle and died which was false.”

The Appellant in evidence roundly denied involvement in the death of the deceased. Rather, he said in evidence that:

“When I got there, I saw the deceased. He was on the ground. It looked like he had an accident. It was the 3rd accused and PW5 and Terver Hemba and Nene Ukav at the scene. I asked them what happened and they said it was an accident. I then instructed them to take him to the hospital.”

Now, from both his extra judicial statement, Exhibit E, and his evidence at the trial, PW5 was an eye witness to the stabbing of the deceased by the Appellant. The learned trial Judge relied on the evidence of PW5. Mr. Anongo for the Appellant argued that the trial Court ought to have acted with caution in relying on the evidence of PW5 because he was a brother-in-law to the deceased. He also argued that Exhibit E showed pre-existing malice against the Appellant and there were material contradictions between his evidence at the trial and Exhibit E.
The mere fact that the deceased was a brother in law to PW5 does not immediately make his evidence suspect and one to be acted on with caution. The accepted definition of a tainted witness is a person, who is either an accomplice or who, by the evidence he gives, may and could be regarded as having some personal purpose to

serve. Evidence of such a witness should be treated with considerable caution “and examined with a tooth comb”; Omotola & Ors v. The State (2009) LPELR-2663(SC); Adetola v. The State [1992] 4 NWLR (Pt.235) 267; Ishola v The State (1978) LPELR-8043(SC). The fact that there is a blood relationship between a victim and a prosecution witness is not sufficient in itself to make the witness a tainted witness, whose evidence is unreliable, unless corroborated; Ben v. The State (2006) LPELR-770(SC); Egwumi v. The State (2013) LPELR-20091(SC)); Idagu v. State (2018) LPELR-44343(SC). Explaining why the evidence of a witness who has a blood relationship with a victim may not mandatorily be treated with caution as originating from a tainted witness, the Supreme Court, per Oguntade, JSC in Omotola & Ors v. The State (supra) at pages 41 – 42, said:
“It was undisputed that P.W.s 7, 10 and 11 are the children of the deceased. But did that fact alone make them tainted witnesses? I do not think so. Every citizen has the duty to come forward and offer assistance in the diligent detection and prosecution of crime. Their blood relationship with the

victim of crime may constitute an additional incentive to come forward to testify in a Court case. But that in my view, cannot be regarded as a basis to describe their evidence as untrue, biased or tainted. I am unable to accept the submission that the evidence of P.W’s. 7, 10 and 11 was lacking in the requisite quality and objectivity just for the reason that they were the children of the deceased. It would have served the interests of the appellants better if counsel concentrated in showing that they did not observe what they claimed to have witnessed or that their evidence in some way was incredible. Asking that their evidence be rejected as tainted witnesses just because they were the children of the deceased isin my view unhelpful.”
Restating this view, the Apex Court, per Augie, JSC, in Uzim v The State (2019) LPELR-48983(SC) said, pages 30 – 32:
“The Appellant insists that PW4 is a tainted witness because he “cannot be expected to testify against his blood brother”. Is that so?
Now the accepted definition of a tainted witness is a person, who is either an accomplice or who by the evidence he gives may and could be

regarded as having some personal purpose to serve. So his evidence should be treated with considerable caution “and examined with a tooth comb” –
See Adetola V. State (1992) 4 NWLR (Pt. 235) 267 and Egwumi V. State (2013) 13 NWLR (Pt. 1372) 525.
However, it is well settled that the fact that there is a blood relationship between a victim and the Prosecution witness is not sufficient in itself to make him a tainted witness, whose evidence is unreliable, unless corroborated – see Egwumi V. State (supra), Omotola & Ors V. State (2009) LPELR-2663 (SC) and Omotola V. State (2009) 7 NWLR (1139) 148, wherein Ogbuagu, JSC. observed:
A case is not lost on the ground that those, who are witnesses, are members of the same family or community. What is important is their credibility and that they are not tainted witnesses. This is because the Prosecution should not be encouraged to call hired witnesses especially in murder cases of capital offences. Justices it is said will be defeated if the Prosecution of any Accused Person can only commence when and only when witnesses are neither related to the Accused nor are members of the same family – – The

evidence of a relation can be accepted, if cogent enough to rule out the possibility of deliberate falsehood and bias — – -There is no law which prohibits blood relations from testifying for the Prosecution where such a relation is the victims of the crime committed.
So, the blood relationship of a witness with the victim of a crime cannot be regarded as a basis to describe his evidence as untrue, biased or tainted. It is a different matter if the witness did not see what he claimed to have witnessed or his evidence is incredible. But the mere fact that he is related to the victim of the crime is not sufficient in itself to describe the witness as a tainted witness or tar him with the same brush and ask that his evidence be rejected.”
Further, I do not see any evidence of a pre-existing malice that would render the evidence of PW5 unreliable. PW5 simply stated his knowledge of the Appellant as a person who had a violent disposition. With this knowledge, he took seriously the threat of the Appellant to deal with him if he testified against him. PW2, in his extrajudicial statement, Exhibit B, and under cross examination, testified of the

violent disposition of the Appellant, adding that the Appellant had threatened to kill anyone who testified against him.
PW5 did not, by the evidence he gave, demonstrate that he had some personal purpose to serve, neither was his evidence shown to be false. He merely narrated what he had witnessed. Therefore, the evidence of PW5 did not need to be treated with caution on account of his relationship with the deceased, who was in brother-in-law. Moreover, aside from his eye witness account of the murder of the deceased, his evidence did not differ largely from the testimonies of the other prosecution witnesses. PW5 was not a tainted witness. In any event, a tainted witness is a competent witness. The only snag is that the Court should be wary about readily extending or ascribing credibility to his evidence; Ochani v. The State (2017) LPELR-42352(SC).

Therefore, the contradiction in the testimony of a witness, which will be fatal, must be substantial and must go to the root of the charge before the Court. It must be one that touches an important element of what the prosecution needs to prove in the case; Princent & Anor v. The State (2002) LPELR-2925(SC); Dibie & Ors v. State (2007) LPELR-941(SC); Ochani v. The State (supra); Ukpong v. The State (2019) LPELR-46427(SC). Minor discrepancies that do not affect the credibility of a witness may not be fatal; Uche v. State (2015) LPELR-24693(SC); Idi v The State (2017) LPELR-42587(SC).

I have already noted that in evidence, PW1 said that he saw the deceased, the 3rd accused person and the Appellant carrying PW5 at the back of his motorcycle, speeding in their respective motorcycles. PW1 in his extra judicial statement, Exhibit B, stated that PW3 told him that:
“…the man whom Doohumun Ukaa, Ayongo Agbatse and Terhumgate Kombo were pursuing had a serious accident along the way.”

It is crucial to note that PW1 stated in Exhibit B what he was told by PW3. Repeating something he was told does not amount to a contradiction to

what he witnessed, which was the deceased lying on the roadside with a deep cut in his lower abdomen. PW1 did not witness any accident.

Further, PW5 in both Exhibit E and in evidence never said the 3rd accused person was present at the time the Appellant stabbed the deceased. The evidence of PW5 and his extrajudicial statement, Exhibit E, did not differ in any material particular. There were therefore no material contradictions that go the root of the charge which the Appellant faced, as to create some doubt regarding his guilt.

PW1 and PW2 testified that the deceased was found lying on the ground and bleeding profusely from a cut on his abdomen. There was no sign of accident or bruises on any other part of his body. PW4, the father of the deceased, said that upon examining his son, he found that he had a very deep hole in his abdomen. PW5 was an eye witness to the cause of the very deep hole in the abdomen of the deceased. He said the Appellant stabbed the deceased in his presence. At the material time of the stabbing, no other person was present. I note that the evidence of the prosecution witnesses was not dislodged or discredited under cross

examination.

Now, it is important to note that although the medical report was not tendered in evidence, it was not in dispute that the cause of death of the deceased was by stab wound in the lower abdomen. The evidence of the prosecution witnesses to the effect that the deceased died from the stab wound was not controverted. Medical evidence, including a medical report may be dispensed with where the cause of death is obvious or not in dispute. In Galadima v. The State (2017) LPELR-41909(SC), the Supreme Court, per Sanusi, JSC said, page 17 of the E-Report:
“Although there was no medical report on the cause of the death of the deceased woman, I feel the tendering of medical report to confirm the death of a deceased victim is not material in a situation where death was instantly caused by the act of or attack by the accused person as in this instant case. Almost all the witnesses called by the respondent confirmed that they saw the dead body of the deceased covered with grass mat at the scene of the incident. A Court can always dispense with medical report or is not bound by it, in situation where death can easily be inferred or where there

had been direct account of the act that led to the death of the victim as in this instant case. See Onyia v State [2006) 11 NWLR (pt. 991) 267 at 292.”
Therefore, as long as the cause of death may be established by sufficient satisfactory and conclusive evidence, showing beyond reasonable doubt that the death of the deceased resulted from the particular act of the accused, the failure to tender a medical report is not fatal to the prosecution’s case; State v Sunday (2019) LPELR-46943(SC); Ben v State (2006) LPELR-770(SC); Ozo v. The State (1971) LPELR-2891(SC).

Secondly, the law is settled that in criminal proceedings, the evidence of a single witness, if found to be cogent and credible is sufficient, without more, to secure the conviction of a person accused of committing a crime, except where the evidence is such that requires corroboration by law. Such evidence must be credible and must point irresistibly to the guilt of the accused person; Mohammed v. The State (2019) LPELR-46420(SC); Bassey v State (2019) LPELR-46910(SC); Ogu v The State (2017) LPELR-43832(SC); Olakunle v. State (2017) LPELR-48000(SC); Shurumo v. State (2010)

LPELR-3069(SC). The evidence of PW5 was not discredited by cross examination. Rather, under cross examination he reinforced his evidence saying, page 69 of the Record of Appeal:
“I will not be surprised to hear that I am the only one who said the 2nd accused stabbed the deceased because I was the one who saw it.”

He explained why he did not immediately give this information:
“When this incident happened, I was shocked. At the same time I was not happy. I did not tell members of my family, that is my wife and father-in-law because of the 2nd accused’s threats that if I did, he would deal with me.”

The learned trial Judge was of the view that PW5 was a witness of truth. It is the settled position of the law that it is the trial Court, which alone has the opportunity of seeing and hearing the witnesses and watching their demeanour, that should be the judge of who to believe. Thus, where the issue centers on which witness ought to have been believed, the finding of the trial Judge is given great respect;Onuoha v The State (1989) LPELR-2704(SC). In Onuoha v The State (supra), the Apex Court, per the erudite Law

Lord, Oputa, JSC elucidated on factors to consider in determining the veracity of a witness, as follows:
“…there are many hallowed and time honoured factors to be considered when dealing with the question of veracity and credibility of a witness and prominent among these are: –
1. His knowledge of the facts to which he testifies
2. His disinterestedness
3. His integrity
4. Whether the evidence is contradictory or is contradicted by the surrounding circumstances.”
PW5 testified to what he witnessed. The totality of the evidence adduced did not show that he had any special interest or malice in implicating the Appellant. His evidence was not discredited under cross examination. The evidence of the other prosecution witnesses did not contradict the evidence of PW5 in any material particular. I therefore see no reason to disturb the finding and conclusion of the trial Judge in the light of the evidence.

(c) That the act of the Appellant was intentional with the knowledge that death or bodily harm was its probable consequence.
The question now is whether the Appellant acted intentionally with the

knowledge that death or bodily harm would be the probable consequence of his action or whether the incident was accidental. In evidence, PW5 said, page 68 of the Record of Appeal:
“On our way back…He called on the chairman of the Motorcycle Hirers’ Association, saying the deceased cut the rope which they put across the road so in the process of pursuing him, the deceased fell from his motorcycle and sustained injuries and that the Chairman should go and take him to hospital.”
The Appellant in evidence said, page 85 of the Record of Appeal:
“I saw the deceased on a motorcycle. He came and passed, and broke the rope that they had tied across the road. As he broke the rope, the 2nd half of the rope was stuck to his motorcycle. 1st accused then instructed 3rd accused to use the PW5’s motorcycle and to go after the deceased to tell him to either return the rope or give him money to buy a new rope. As the 3rd accused left to go after the deceased, I asked the 1st accused what if the deceased refuses to give the rope or give money for a new rope, will that not result in a problem. I waited but did not see the 3rd

accused. I then took my motorcycle and followed to see what had happened. When I got there, I saw the deceased. He was on the ground. It looked like he had an accident. I saw the 3rd accused and PW5 and Terver Hemba and Nene Ukav at the scene. I asked them what happened and they said it was an accident. I then instructed them to take him to the hospital. From there I proceeded to the Chairman of the Motorcycle Hirers Association and informed him of what I had seen and what had happened.”

PW4 had testified that his son, the deceased, was a final year student at the College of Education, Gboko who came home for the weekend. On his way to the market he passed by the Unit of the Motorcycle Hirers Association. The deceased was not a member of the Association. PW4 said, page 64 of the Record of Appeal:
“The Association usually cordons the road with a rope.”

In his extra judicial statement, Exhibit E, PW5 stated that the rope was for collection of revenue money from Motorcycle hirers.

What can be deduced from the evidence before the trial Court was that the Motorcycle Hirers Association had cordoned off a particular road by

placing a rope across it. The deceased, who was not their member and probably had no knowledge of this fact, rode a motorcycle past the rope and cut it. According to the Appellant, the 1st accused instructed 3rd accused to use the PW5’s motorcycle and to go after the deceased to tell him to either return the rope or give him money to buy a new rope. The Appellant however said he decided to follow after the 3rd accused person, to forestall any problem between the deceased and the 3rd accused person. PW1 saw the deceased speeding on a motorcycle, followed closely by the 3rd accused and the Appellant, who had PW5 as his passenger. PW2 also saw the deceased speeding on his motorcycle, with the Appellant also speeding behind him. PW5 witnessed the Appellant stab the deceased.

The Appellant knew the consequence of stabbing the deceased with a knife in the lower abdomen would be that he may die from the injuries, which explains why he instructed, by his own evidence, the 3rd accused, PW5, PW2 and Nene Ukav to take him to the hospital. The Appellant then told the Chairman of the Association a lie to cover his track. The Appellant, from the evidence acted

intentionally and with the knowledge that death would be the probable consequence of his action. The incident was not accidental.

There was overwhelming evidence that from the nature of the assault on the deceased, the Appellant intended to cause grievous bodily harm and death resulted directly from the act of the Appellant. The inevitable conclusion to be reached is that death of the deceased resulted from the consequences of the intentional act of the Appellant.

The learned trial Judge concluded thus, pages 123 – 124 of the Record of Appeal:
“I hold the view that the prosecution has proved beyond reasonable doubt that it was the 2nd accused person who murdered the deceased and no one else…
I therefore find the 2nd accused person guilty of the offence of culpable homicide punishable with death and I convict him accordingly.”

I agree with this conclusion, having regard to the evidence adduced by the Respondent, and see no reason to disturb same.

I see no merit in this appeal. It fails and is hereby dismissed. The conviction and sentence of the Appellant is, accordingly, hereby affirmed.

ADAMU JAURO, J.C.A.: I have read before now a copy of the judgment just delivered by my learned brother, ONYEKACHI AJA OTISI, JCA. I am in entire agreement with the reasoning and conclusion to the effect that the appeal is lacking in merit and ought to be dismissed.
The appeal Is hereby dismissed by me and I abide by all consequential orders made.

JOSEPH EYO EKANEM, J.C.A.: I had the privilege of reading in advance the lead Judgment of my learned brother, Otisi, JCA, which has just been delivered. I agree with the reasoning and conclusion therein that the appeal has no merit.

The mere fact that the PW5 was related to the deceased was not sufficient to make him a tainted witness whose evidence was unreliable unless it was corroborated, See Idagu V. State (2018) 15 NWLR (Pt. 1641) 1127, 155. It was not suggested or put to PW5 in cross- examination that he was a tainted witness or that he held grudges against the appellant. Therefore the submission of appellants counsel that the trial Court ought to have cautioned itself on that account before relying on the evidence of PW5 to convict the appellant carries no force.

The evidence of PW5 that the appellant

stabbed the deceased with a knife was not discredited. There is also evidence that the deceased was stabbed in his abdomen and he bled profusely from the wound. The incident occurred on 8/2/2013. The deceased died on the same day. PW4 the father of the deceased testified that he examined the body of the deceased and saw a very deep hole in his abdomen. Though medical report is desirable but it is not a sine qua non in determining the cause of death in a case of homicide punishable with death where there is other evidence upon which the cause of death can be inferred to the satisfaction of the Court. An example of such evidence is where death from the act of the accused person was instantaneous or nearly so as in this instance. See R V. Ukpong (1961) All NLR 25, Okorie V. State (2018) 11 NWLR (Pt. 1629) 1, 24, Ukpong V. State (2019) 6 NWLR (Pt 1667) 1, 24 and Lalapu V. COP (2019) 16 NWLR (Pt. 1699) 476, 495.
It is therefore clear that the deceased died as a result of the stab wound inflicted on him with a knife by the appellant. Where a man stabs another with a knife on his stomach, which is a very delicate part of the human body, it is clear that he

intended to kill or inflict bodily harm of a grievous kind on him.

The trial Court was therefore right in holding that the prosecution had proved its case beyond reasonable doubt and in therefore convicting the appellant of the offence of culpable homicide, and sentencing him to death.

I therefore agree with my learned brother that this appeal has no merit. I also dismiss it and affirm the judgment of the trial Court.

Appearances:

M. Anongo, Esq. For Appellant(s)

P.M. Uchi, Esq. Principal State Counsel 1, Ministry of Justice, Makurdi For Respondent(s)