OBASANJO EGHAREVBA V. THE STATE (2012)

OBASANJO EGHAREVBA V. THE STATE

(2012)LCN/5309(CA)

In The Court of Appeal of Nigeria

On Monday, the 23rd day of April, 2012

CA/B/316C/2010

RATIO

EVIDENCE: MEANING AND NATURE OF A CONFESSIONAL STATEMENT

A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only. See Section 27(1) & (2) of the Evidence Act.

Although an accused person can be convicted solely on his confessional statement, it is desirable to have some evidence outside the confession which would make it probable that the confession was true. See the cases of: (1) Effiong v. State (1998) 8 NWLR (Pt. 562) p. 632; (2) Nwaebonyi v. State (1994) 5 NWLR (Pt. 343) p.13 and (3) Ismail v. State (2008) 15 NWLR (Pt. 1111) p.593. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A

EVIDENCE: ONUS OF PROOF IN CRIMINAL CASES

it is a settled principle of law that, in criminal cases, the onus of proving the guilt of an accused person is on the prosecution. To put it in different words, it is the duty of the prosecution to prove its case by evidence of such a quality and quantity as to leave the court in no reasonable doubt as to the guilt of the accused person. This is the cardinal principle of law laid down in Section 138(1) of the Evidence Act that the commission of a crime by a party must be proved beyond reasonable doubt. The onus is rock steady and does not shift at any point and under any circumstance. See the cases of: Abdullahi v. State (2008) 17 NWLR (Pt. 1115) p.203; (2) Ahmed v. The State (2003) 3 ACLR p. 145 at p.177; (3) Obiakor v. The State (2002) 6 SCNJ p.193 and (4) Anekwe v. The State (1998) ACLR p.426 at p.433. The onus remains on the prosecution until satisfactorily discharged. The burden is not upon an accused to prove his innocence or that no crime was committed. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A

EVIDENCE: STANDARD OF PROOF OF AN ALLEGATION IN CIVIL CASES

The set standard of proof is so rigid that, even in civil cases, for an allegation of crime to be established, the standard of proof is still that of proof beyond reasonable doubt. See the cases of: (1) Dangote v. Plateau State Civil Service (2001) WRN p.125 and (2) Fabiyi v. Unilorin (2005) NSLR (Pt. 5) p.117. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A

EVIDENCE: WHAT REASONABLE DOUBT CONNOTES

CRIMINAL LAW: INGREDIENTS OF PROVING THE CHARGE OF CULPABLE HOMICIDE

For the charge of culpable homicide punishable with death to succeed, the prosecution is required to prove the presence of the following ingredients:

(a) That the death of a human being actually took place;

(b) That such death was caused by the accused;

(c) That the act of the accused that caused the death was done with the intention of causing death; or that the accused knew that death would be the probable consequence of his act.

All the ingredients of the offence must be established or co-exist before a conviction can be secured. Failure to establish any of the ingredients will result in the acquittal of an accused person. See the cases of: (1) Adava v. State (2006) 9 NWLR (Pt. 984) p.152 and (2) Maiyaki v. State (2008) 15 NWLR (Pt. 1109) p. 173. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A

Before Their Lordships

RAPHAEL CHIKWE AGBOJustice of The Court of Appeal of Nigeria

OYEBISI FOLAYEMI OMOLEYEJustice of The Court of Appeal of Nigeria

CHIOMA EGONDU NWOSU-IHEMEJustice of The Court of Appeal of Nigeria

Between

OBASANJO EGHAREVBAAppellant(s)

AND

THE STATERespondent(s)

OYEBISI FOLAYEMI OMOLEYE, J.C.A (Delivering the Leading Judgment): In the High Court of Justice in Benin City, Edo State, the Appellant and another were arraigned before the Honourable Justice E.O. Ahamioje on two counts as follows:
STATEMENT OF OFFENCE COUNT 1
Conspiracy to murder, punishable under Section 324 of the Criminal Code Cap. 48, vol. II laws of the Bendel State of Nigeria 1976 now applicable in Edo State of Nigeria.
PARTICULARS OF OFFENCE
Obansanjo Egharevba (m) and Ejerokenme Vickmagor (m) on or about the 19th day of May, 2001 at Ogba Prison Farm Settlement Benin City in the Benin Judicial Division conspired with one another to commit felony to wit: murder
STATEMENT OF OFFENCE COUNT II
Murder, punishable under Section 319 of the Criminal Code Cap. 48, vol, II Laws of the Bendel State of Nigeria, 1976 now applicable to Edo State of Nigeria.
PARTICULARS OF OFFENCE
Obasanjo Egharevba (m) and Ejerokoneme Vickmagor (m) on or about the 19th day of May, 2001 at Ogba Prison Farm Settlement Benin City in the Benin Judicial Division murdered one Lucky Ominike (m).
The brief facts of this case according to the Respondent are that, the Appellant, one Ejerokogene Vickmagor and Friday Jatto (who gave evidence at the trial as PW3) were all inmates at Oko Maximum Prison, Oko, Benin City. On 19th May, 2001, the deceased, Lucky Ominike, who was a prison warder at the said prison took the three inmates to work at the prison garden. The Appellant along the way said he needed to drink water and the deceased took him aside and gave him water. As the duo turned to return to work, the Appellant hit the deceased on the head with the hoe he was holding. The deceased’s scream attracted the attention of the other inmates. PW3 rushed to the scene, took the injured deceased to the hospital, while the Appellant and the other initial suspect took to their heels and escaped from the prison precinct.
Lucky Ominike died about three weeks after the attack on him. Consequently, the Appellant and the said other suspect were charged to and arraigned before the trial court. At the trial, the Respondent called three witnesses and tendered three exhibits. The Appellant and his co-accused testified for themselves but called no witnesses. At the close of the trial, the Appellant’s co-accused was discharged and acquitted, while the Appellant was found guilty of and convicted for the murder of the deceased. The Appellant was sentenced to death by hanging.
The Appellant was unhappy with the said decision of the trial court. Therefore he appealed to this Court on an omnibus ground of appeal, contained in page 75 of the record of appeal, the notice and grounds of appeal dated 23rd August, 2010 and filed on 24th August, 2010 having been abandoned. The omnibus grounds state as follows:
1. That the learned trial Judge erred in law in convicting the appellant of murder when there was no direct evidence before the court that the appellant was responsible for the murder.
2. That the decision of the trial Judge is therefore unwarranted, unreasonable having due regard to the weight of evidence.
On the 24th of January, 2012 when the appeal was heard by this Court, the learned counsel for the Appellant, Mr. E.O. Achukwu identified, adopted and relied on the Appellant’s brief of argument dated and filed on 19th October, 2010. He urged this court to allow the appeal, set aside the judgment of the lower court, discharge and acquit the Appellant.
The learned counsel for the Respondent, Mrs. V.U. Adeleye, Chief State Counsel, Ministry of Justice, Benin City, Edo State equally identified the Respondent’s brief of argument dated and filed on 15th November, 2010. She adopted and relied on the said brief of argument in urging this Court to dismiss the appeal.
In the brief of argument filed for the Appellant, one sole issue was distilled from the two grounds of appeal for determination. The issue reads thus:
Whether the prosecution proved the guilt of the Appellant beyond reasonable doubt?
On the other hand, the learned counsel for the Respondent formulated two issues for the determination of the appeal. The issues are:
1. Whether the confessional statement of the Appellant, exhibit A was rightly admitted in evidence and relied on by the learned trial Judge?
2. Whether having regard to the totality of the evidence at the trial and the circumstances of this case the prosecution proved the case of murder against the Appellant beyond reasonable doubt to warrant his conviction?
The issues formulated by the learned Chief State Counsel for the Respondent are more comprehensively apt and I shall equally adopt same for the determination of this appeal.
ISSUE ONE
Whether the confessional statement of the Appellant, exhibit A was rightly admitted in evidence and relied on by the learned trial Judge?
The Appellant’s learned counsel reiterated that in his evidence in court, the Appellant out rightly denied making or signing the statement exhibit A, tendered by the prosecution against him and relied upon by the lower court to convict him. This according to the learned counsel is plausible because the Appellant is an illiterate who cannot write and could not have signed the said statement as claimed by the police who allegedly took the statement from the Appellant.
Furthermore, a close observation of the statement would show that it is a confessional statement. However, PW1 in his testimony at trial neither said that it is a confessional statement nor that he took the statement to a superior Police Officer for authentication and confirmation as a confessional statement. According to the learned counsel, this goes to support the evidence of the Appellant that the statement was neither made nor signed by him.
It was also the contention in favour of the Appellant that, the evidence of the Appellant raised a fundamental question as to the identity of PW3. According to the Appellant, PW3 is a Warder’s son and not an inmate as professed by the prosecution. These according to the Appellant’s learned counsel raised a doubt in the case of the prosecution against the Appellant. He restated the fundamental principle of law, that the standard of proof in criminal matters is proof beyond reasonable doubt and it is the primary duty of the prosecution to prove the guilt of an accused person, in this case the Appellant, beyond all reasonable doubt. Hence, any lingering doubt must be resolved in favour of the accused persons. He relied on the cases of: (1) Oghor vs. The State (1990) 3 NWLR (Pt. 139) p.184 and (2) Folarin vs. The State (1999) 1 NWLR (Pt. 371) p. 31.
Responding under issue one, the learned Chief State Counsel for the Respondent stated that the extra judicial statement of the Appellant to the Police was tendered and admitted as exhibit A during the trial with no objection from the Appellant’s counsel. However, the Appellant while testifying in his own defence said exhibit A is not his statement in that he did not sign but only thumb printed it. According to learned counsel, that retraction by the Appellant from that statement was belated and at best an afterthought. For, it is trite law that, once a statement is tendered and admitted without objection by the defence, it is good evidence and can be relied upon by the court. He relied on the case of: Ikemson v. State (1998) 1 ACLR p.80 at p.92 lines 15 – 29; (1989) 3 NWLR (Pt.110) p. 455.
Furthermore, learned counsel argued that, a close look at exhibit A show that there was compliance with the rules governing the recording of the statement of an accused person. It is evident therein that, the Appellant was cautioned, the statement was read over to him after the recording and the Appellant and the recorder of the statement both signed it. Hence, the court was entitled to not only admit but rely on it in the absence of any objection by the defence. He submitted that the fact that an accused person resiles from his statement does not render the statement inadmissible. However, once an accused person retracts from his statement after it is admitted, what is left for the trial court is to consider the weight to attach to it. On this position, reference was made to the case of: In Rex v. Sykes (1913) 8 C.A.R. p. 233. In that case, the following rules were laid down as those to be considered in order to decide the weight to be attached to a confessional statement whether or not it is retracted:
a. Is there anything outside the confession to show that it is true?
b. Is the confession corroborated?
c. Are the relevant statements of facts made in the confession true as far as they can be tested?
d. Is the prisoner one who had the opportunity of committing the murder?
e. Is the confession Possible?
f. Is the confession consistent with other facts which have been ascertained and have been Proved?
Furthermore reference was made to the cases of: (1) Kanu v. The King (1952) 14 WACA p. 30; (2) Dawa v. The State (1980) 8 – 11 SC p.236; (3) The Queen v. Obiasa (1962) 1 All NLR p.651(4) Obosi v. The State (1965) NMLR p.129; (5) Onochie v. The Republic (1966) NMLR p.307 and (6) Emmanuel Nwaebonyi v. The State (1994) 5 NWLR (Pt. 343) p.138. The learned counsel for the Respondent submitted that, in this instant matter, looking at the evidence of PW1, PW2 and PW3 (an eye-witness), together with exhibits B and C, which effectively corroborated exhibit A, it is clear that exhibit A is not only possible but true. Again, the Appellant had the opportunity to have committed the offence in that he was at the prison garden with the deceased on the day in question.
The learned Chief State Counsel for the Respondent restated the principle of law governing the admission of a confessional statement, that, if the court satisfies itself that a confessional statement is free, voluntary, true, and positive, it is bound to admit and rely on the statement to ground a conviction even without any corroborative evidence. This is in tune with the provisions of Section 27 of the Evidence Act. Reference in this regard was made to the case of Nwachukwu v. State (2005) 4, LRCNCC p.53 at p.75 lines Z – EE.
I have considered the submissions of learned counsel in favour of and against this issue.
A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only. See Section 27(1) & (2) of the Evidence Act.

Once a confessional statement of guilt is shown to have been made freely and voluntarily, be it judicial or extra-judicial, if it is direct, positive and properly admitted, it constitutes proof of guilt and is sufficient to sustain and ground a conviction, so long as the court is satisfied as to its truth. See the case of: Akpan v. State (2001) 15 NWLR (Pt. 737) p.745.
Although an accused person can be convicted solely on his confessional statement, it is desirable to have some evidence outside the confession which would make it probable that the confession was true. See the cases of: (1) Effiong v. State (1998) 8 NWLR (Pt. 562) p. 632; (2) Nwaebonyi v. State (1994) 5 NWLR (Pt. 343) p.13 and (3) Ismail v. State (2008) 15 NWLR (Pt. 1111) p.593.

I am at one with the stance of the Respondent that, the confessional statement of the Appellant, exhibit A was properly admitted by the lower court. The Appellant did not challenge the voluntariness of exhibit A, he merely retracted it, that is, he actually completely denied making the statement. I agree that this is nothing but a mere afterthought. The law is trite that, there is nothing really sacrosanct about the retraction of a confessional statement. The fact that an accused person subsequently retracts his earlier confession does not mean that the court cannot act on it and convict the accused person accordingly, as the circumstances of the case justify. See the cases of: (1) Gira v. State (1996) 4 NWLR (Pt. 443) p.375, (2) Edamine v. State (1995) 3 NWLR (Pt. 438) p.530 and (3) Ismail v. State supra.
I will as well agree with the learned counsel for the Respondent that the evidence adduced by the prosecution at the trial such as the testimonies of PW1, PW2 and PW3 served as a corroboration of exhibit A. These show that the confession of the Appellant was not only possible but true. I therefore hold that the lower court rightly admitted and relied on exhibit A to convict the Appellant. The contention of the learned counsel for the Appellant that there was no attestation of a superior Police Officer on exhibit A, is misconceived. This is because, there is no rule of law requiring such attestation. The said attestation is merely that of practice and has been held over the years that, the absence of same will not render a confessional statement inadmissible in evidence.
For the avoidance of doubt, I hold that exhibit A was properly admitted and relied upon by the learned trial Judge to convict the Appellant. Consequently, this issue is resolved in favour of the Respondent and against the Appellant.
ISSUE TWO
Whether having regard to the totality of the evidence at the trial and the circumstances of this case, the prosecution proved the case of murder against the Appellant beyond reasonable doubt to warrant his conviction?
It was submitted by the Appellant’s learned counsel that in criminal cases especially murder which carries death penalty, the onus is on the prosecution to prove the guilt of an accused person beyond reasonable doubt. The onus is static and does not shift. On this settled legal stance, he referred among others to the case of: Morka vs. The State (1998) 2 NWLR (Pt. 537) p.294 at p. 301 and the provisions of Section 138(1) of the Evidence Act Cap. 112 laws of the Federation 1990. He restated that in a charge of murder the prosecution must prove:
(a) The death of the deceased;
(b) That it was the act or omission of the accused person that caused the death of the deceased and
(c) That the act or omission of the accused was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
He relied on the cases of: (1) Okeke vs. The State (1999) 2 NWLR (Pt. 590) p. 596 and (2) Owah vs. The State (1985) 3 NWLR (Pt. 12) p.296. Where the prosecution failed to prove all these essential ingredients, such failure must be resolved in favour of the accused person. In criminal cases, a fact may be proved by direct or by circumstantial evidence. It is the assertion for the Appellant that there was no evidence fixing him to the scene of crime in this matter. The prosecution’s case that, PW3, Friday Jatto was present when the Appellant hit the deceased with an iron hoe and that he assisted the deceased by taking him to a hospital for treatment is at variance with the evidence of PW1, who stated that he recovered a wooden hoe as the object with which the Appellant hit the deceased. Accordingly, the weapon recovered by PW1 being completely different from the weapon PW3 saw on the day of incident created a conflicting evidence which is fatal to the case of the prosecution. For, the weapon used in the attack of the deceased is very vital for determining whether the weapon is capable of causing the death of the deceased going by all available evidence that the deceased died several weeks after the incident. That is, whether the deceased died of some causes other than the injury inflicted by the wooden hoe. What is more, PW2 stated clearly in his evidence that the said injury inflicted on the deceased by the wooden hoe had healed as at the time the deceased died.
According to the Appellant’s learned counsel, the only evidence which connected the Appellant to the alleged crime is that of PW3. Going by that evidence, it is apparent that PW3 was not present at the time of the alleged attack of the deceased by the Appellant, rather he became aware of the incident when he heard the screams of the deceased. He only proceeded to the scene of the incident when he heard the deceased shout. He referred to the evidence of PW3 at page 17, lines 1 to 17, of the record of proceedings. In his opinion, it became clear that PW3 did not actually witness the incident. He submitted that this is one of the contradictions and inconsistencies in the case of the prosecution which cast a reasonable doubt upon the guilt of the Appellant and thereby legally entitled the Appellant to a benefit of the doubt. Accordingly, the Appellant ought not to have been convicted on the basis of such unreliable evidence. Furthermore, the learned counsel for the Appellant submitted that it is a cardinal principle of justice that, conviction could only follow where the charge against an accused person has been proved beyond any reasonable doubt. On this position, he referred to the cases of: (1) Akosile vs. The State (1972) 5 SC p.332; (2) Onubogu vs. The State (1974) p.9 SC 1 and (3) Umani vs. The State (1988) 1 NWLR (Pt. 70) p.274.
Contrariwise, the learned counsel for the Respondent submitted that taking into account the circumstances of this case, the prosecution had proved the case of the murder of Lucky Ominike against the Appellant beyond reasonable doubt. For, reasonable doubt connotes proof which carries a high degree of probability and not proof beyond every shadow of doubt. On this well settled legal principle, he relied on the case of: Onafowokan v. State (1987) SCJN p. 328.
He conceded that all that the prosecution needed to do in the instant case to discharge the burden of proof for the charge of murder was to show that;
(a) That the deceased actually died.
(b) That the act of the accused caused the death of the deceased.
(c) That the accused intended to cause the death of the deceased or cause him grievous bodily harm.
He referred to the case of: Nkwuda Edamine v. The State (1996) 3 NWLR (Pt. 438) p.530. He submitted further that in proving its case, the prosecution called three witnesses and tendered three exhibits. That from the evidence of the prosecution witnesses, the three ingredients of the offence of murder have been established. He referred to the evidence of PW1, PW2 and PW3 which proved beyond any controversy that the deceased Lucky Ominike died, that the act of the Appellant caused the death of the deceased and that the Appellant intended to cause the death of or grievous bodily harm to the deceased.
In particular, the Respondent’s learned counsel restated the account of PW3, Lucky Jatto who was the only eye witness who testified unequivocally that it was the Appellant that struck the deceased twice on the head with a hoe. The head being a very sensitive part of the body is an indication that the Appellant intended to kill the deceased or at least cause him serious bodily harm. It was stressed that the learned trial Judge adjudged the said PW3, a credible witness. What is more, it was abundantly clear that the victim died.
The evidence of the expert witness that is, the medical doctor, PW2, who performed the autopsy on the deceased was heavily submitted on. PW2 testified that the body of the deceased, Lucky Ominike was identified to him by one Mrs. Collins Ubaocha who was a co-worker of the deceased’s. The evidence of PW2 is that his examination of the deceased’s corpse revealed that, there was bleeding into the compartment that surrounds the brain. That the bleeding compressed the brain and that this led to the death of the deceased. He attributed the death of the deceased to head injury caused by a blunt object, which fractured his skull and led to intracranial bleeding. That although the injury on the head had healed up at the time of death, there was still the problem caused by the bleeding in the inside of the deceased’s head. In the opinion of the learned counsel for the Respondent, the combined evidence of PW1, PW2 and PW3 with the confessional statement of the Appellant, exhibit A, removed every iota of reasonable doubt as to whether it was the intentional and calculated act of the Appellant that caused the death of or grievous bodily harm that led to the death of the deceased. That all of these are overwhelming evidence that the prosecution had proved the charge of murder against the Appellant beyond reasonable doubt as required by S.138(1) of the Evidence Act.
On the issue of the alleged contradictions in the evidence adduced by the prosecution at trial, the learned counsel for the Respondent submitted that the contention is not borne out of the record of the proceedings at the trial court. He argued that the alleged contradictions are at best minor inconsistencies which are not material in the prosecution’s case to warrant doubts that should have been resolved in favour of the Appellant. And that, it is not every perceived contradiction in the prosecution’s case that can have a damaging effect on the case for the prosecution. That in this case the contradictions had to do with the adjective used by the prosecution witnesses to describe the hoe, exhibit C, the weapon used by the Appellant on the deceased’s head. Accordingly, the trial court adverted its mind to this position thoroughly, examined this contention and came to the right conclusion in admitting same in evidence. On this argument, he relied on the cases of: (1) Effia v. State (1999) 8 NWLR (Pt. 613) p. 1 and (2) Onubogu & Anor. v. The State (1974) 1 All NLR (Pt. 11) p.5.
On this issue two, I have adverted to the positions of the law restated by the two learned counsel for both parties. Yes, it is a settled principle of law that, in criminal cases, the onus of proving the guilt of an accused person is on the prosecution. To put it in different words, it is the duty of the prosecution to prove its case by evidence of such a quality and quantity as to leave the court in no reasonable doubt as to the guilt of the accused person. This is the cardinal principle of law laid down in Section 138(1) of the Evidence Act that the commission of a crime by a party must be proved beyond reasonable doubt. The onus is rock steady and does not shift at any point and under any circumstance. See the cases of: Abdullahi v. State (2008) 17 NWLR (Pt. 1115) p.203; (2) Ahmed v. The State (2003) 3 ACLR p. 145 at p.177; (3) Obiakor v. The State (2002) 6 SCNJ p.193 and (4) Anekwe v. The State (1998) ACLR p.426 at p.433. The onus remains on the prosecution until satisfactorily discharged. The burden is not upon an accused to prove his innocence or that no crime was committed.

It is also an established principle of law as submitted by the Respondent’s counsel that reasonable doubt connotes proof which carries high degree of probability and not proof beyond every shadow of doubt.
In the instant matter, the Appellant was charged with the offences of conspiracy to commit murder and murder. While he was discharged of the conspiracy charge, he was convicted for the offence of murder.
For the charge of culpable homicide punishable with death to succeed, the prosecution is required to prove the presence of the following ingredients:
(a) That the death of a human being actually took place;
(b) That such death was caused by the accused;
(c) That the act of the accused that caused the death was done with the intention of causing death; or that the accused knew that death would be the probable consequence of his act.
All the ingredients of the offence must be established or co-exist before a conviction can be secured. Failure to establish any of the ingredients will result in the acquittal of an accused person. See the cases of: (1) Adava v. State (2006) 9 NWLR (Pt. 984) p.152 and (2) Maiyaki v. State (2008) 15 NWLR (Pt. 1109) p. 173.
It is the contention of the Appellant’s counsel that, there were contradictions and inconsistencies in the evidence of the witnesses for the prosecution. That the weapon allegedly used by the Appellant is very vital in the determination of whether or not the said weapon was capable of causing the death of the deceased going by the evidence that the deceased died several weeks after the alleged attack on him. That it was necessary to determine whether the deceased died of some causes other than the injury caused by the weapon allegedly used on him by the Appellant. It was contended in favour of the Appellant that while PW3 testified that the Appellant used an iron hoe to hit the deceased’s head, PW1 testified that he recovered a wooden hoe from the scene of crime. The learned counsel for the Appellant also contended that PW2, the medical doctor who performed the post mortem on the deceased said that the external wound sustained by the deceased had completely healed as at the time the deceased died. With due respect to the learned counsel for the Appellant, the submission amounts to half-truth. The post mortem report issued by PW2, is very explicit.
The learned trial Judge brilliantly dealt with the issue of whether or not the deceased died as a result of the injury sustained by him consequent upon the attack allegedly launched on him by the Appellant. The evidence of PW2, the medical doctor, Dr. Wilson Aikhiwu, a Consultant Pathologist who performed post-mortem examination on the corpse of the deceased, PW3, an eye witness to the alleged crime and the alleged murder weapon, exhibit C were all properly evaluated in accordance with relevant and applicable laws. See pages 25 to 29 of the record of appeal. In this regard, the learned trial Judge came to the following conclusion in line 23 at page 28 and lines 1 to 6 at page 29 of the said record of appeal:
This evidence of PW2 aptly corroborated the evidence of PW3, PW2 and PW3 impressed me as truthful witnesses, and, (sic) therefore believe and accept their evidence. I hold that from the credible evidence of these witnesses that Lucky Ominike is dead, and that he died from the injuries inflicted on his head with a hoe by the 1st Accused person. Consequently, I hold that there is a nexus between the cause of death of the deceased and the act of the 1st Accused person.

Consequent upon the evidence adduced by the Respondent, most importantly the evidence of PW3, an eye witness to the commission of the crime and that of PW2, a medical expert, it was conclusive that it was the act of the Appellant that caused the death of the deceased despite the denials of and make-believe stories for the Appellant. The medical evidence is very satisfactory, it is conclusive. It has therefore succeeded in establishing the cause of death of the deceased. The Evidence of PW3 was conclusive that it was the act of the Appellant that caused the death of the deceased. The identity of the Appellant was not in doubt, PW2 testified that the body upon which he performed autopsy was identified to him by one Collins Ubaocha, a co-staff of the deceased as that of the deceased, Lucky Ominike.
The learned counsel for the Appellant made such a very heavy weather of the fact that there were fatal contradictions’ in the case presented by the prosecution against the Appellant which ordinarily ought to have entitled him to an acquittal. Generally, a material contradiction in a witness evidence goes to the root of the evidence of the party giving it, and it is fatal to the case of the party relying on it. In criminal proceedings, where witnesses for the prosecution give contradictory evidence on material facts, their evidence on the point must be treated as suspect and unreliable and must be rejected. However, it is not every minor contradiction or conflict in the evidence of the prosecution witnesses that would be fatal to its case. The conflict or contradiction must be substantial and fundamental to the main issue in question as to raise doubt in the mind of the trial Judge about the guilt of the accused person. For the contradiction to be material and therefore fatal to a case, it must not only relate to a material fact, it must, in addition, lead to a miscarriage of justice. See the cases of: (1) Onubogu & Anor. V. State (1974) 1 All NLR (Pt.2) p.5; (2) Okonji v. State (1987) 1 NWLR (Pt. 52) p. 659; (3) Wankey v. State (1993) 5 NWLR (Pt. 225) p.442; (4) Effia v. State (1999) 8 NWLR (Pt. 613) p.1; (5) Igbi v. State (2000) 3 NWLR (Pt. 648) p.169; (6) Omisore v. Queen (1964) 1 All NLR p.233.

It is the primary duty of the trial court to determine whether there are contradictions in the evidence of a witness, and if there are, to advert to them and then take them into consideration in the evaluation of the credit of the witness. See the cases of: (1) Gabriel v. State (1989) 5 NWLR (Pt.122) P.457; (2) Igbi v. State (2000) 3 NWLR (Pt.648) p. 169; (3) Ogbu v. State (2007) 5 NWLR (Pt. 1028) p. 635 and (4) Uwagboe v. State (2008) 12 NWLR (Pt. 1102) p.621.

Where an appellant as in the present case complains of discrepancies in the evidence of a prosecution witness, it must be shown by him /her that, the trial court did not properly advert to and consider the effects of the discrepancies. For the discrepancies must be shown to amount to a substantial disparagement of the witness concerned, making it dangerous or likely to result in a miscarriage of justice to rely on the evidence of the witness. See the cases of: (1) Enahoro v. Queen (1965) NMLR p.265 and (2) Ogbu v. State supra.
In the instant case, the so-called contradictions emanating from the testimonies of PW1 and PW3 as to the weapon, that is, the hoe (exhibit C), used in hitting the head of the deceased by the Appellant, were immaterial and of no moment to warrant overturning the verdict of guilty passed on the Appellant by the lower court.
I therefore agree with the conclusion of the Respondent’s learned counsel that, from the totality of the evidence led at the trial in this matter, the prosecution did prove the charge of murder which the Appellant was tried for and convicted of, beyond reasonable doubt as required by law. This second issue is again resolved in favour of the Respondent and against the Appellant.
In the final analysis, I hold that there is no merit in the Appellant’s appeal which is hereby dismissed. The judgment of the lower court delivered on 23rd April, 2010 is affirmed. The conviction and sentence of the Appellant are equally affirmed.

RAPHAEL CHIKWE AGBO, J.C.A: I agree with Omoleye, JCA that this appeal is devoid of merit and should be dismissed. My Lord has ably dissected the contentions of the appellant in the lead judgment and I have nothing to add. I also dismissed this appeal.

CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A: I had a preview of the lead Judgment delivered by my learned brother OMOLEYE JCA. I agree with the analysis and conclusions on all the issues. I agree that the appeal is devoid of merit and ought to be dismissed. It is accordingly dismissed. The Judgment of the court below, the conviction and sentence of the Appellant are hereby affirmed.

Appearances

Emmanuel O. Achukwu,
I.N. OkongwuFor Appellant

AND

Mrs. V.U. Adeleye C.S.C., Ministry of Justice, Benin City, Edo State,
Mrs. T.I. Eghe-Abe A.C.S.C.For Respondent