UZOMA OKEREKE & ORS. V. THE STATE
(2012)LCN/5569(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of July, 2012
CA/OW/85/2009
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
1. UZOMA OKEREKE
2. UGOCHUKWU OKEREKE
3. CHUKWUMA EZEKWE Appellant(s)
AND
THE STATE Respondent(s)
RATIO
WHETHER OR NOT THE PROSECUTION HAS A DUTY TO INVESTIGATE AN ALIBI
There was no duty on the prosecution to investigate the alibi and no need for the prosecution to call evidence to rebut the alibi. The trial Court was right to have acted on Exhibit A and the evidence of PW1, PW3 and PW7. See Ede vs., Fed. Rep. of Nigeria (2001) 1 NWLR (Pt.695) 502; Alabi vs. State (1993) 7 NWLR (Pt. 307) 511; Nwabueze vs. State (1988) 4 NWLR (Pt.86) 16; Okosi vs. State (1989) 1 NWLR (Pt. 100) 642. PER AJI, J.C.A.
WHETHER OR NOT CONTRADICTIONS IN THE EVIDENCE OF WITNESSES WHICH ARE NOT MATERIAL GOES TO NO ISSUE
The law does not insist that there must be no contradictions in the evidence of witnesses called by the same party on any issue in contention. What the principle of law is, of which the Courts are well familiar in practice is that, the contradictions by the witnesses should not be material to the extent that they cast serious doubts on the case presented as a whole by that party or as to the reliability of such witnesses. Where conflicts and contradictions in the evidence of the prosecution witnesses raised no doubts as to guilt of the accused, the only duty of the trial judge is to observe and comment on them as such and no more. Such contradictions are not fatal to the prosecution’s case. Thus on the issue of contradiction, it is only contradictions on a material fact that would make a Court doubt the evidence before it. It is not just on any point. See Dominic vs. State (2002) 12 SCNJ 280; Omotola vs. State (2009) ALL FWLR (PT.464) 1490; Omonga vs. State (2006) 14 NWLR (Pt.1000) 532; Osuagwu vs. State (2009) 1 NWLR (Pt.1129) 523 at 542 – 543. Therefore contradictions which are not material or substantial go to no issue. The main interest of the Court is that the witnesses are in union or unison as to the happening of the event, but give different versions in respect of the peripheral surrounding the event. PER AJI, J.C.A.
UWANI MUSA ABBA AJI (PJ) (Delivering the Leading Judgment): This is an appeal against the Judgment of Hon. Justice C. I. Ohakwe of the High Court of Imo State sitting at Owerri, delivered on the 31st day of March, 2009 wherein the Appellants were convicted and sentenced to death under Section 319(1) of the Criminal Code applicable to Imo State.
The facts of the case as can be gleaned from the evidence of the prosecution witnesses are that the deceased Mrs. Cecilia Ogbonna lived in a neighbourhood with the mother of the 1st and 2nd Appellants Mrs. Ifeoma Okereke. A common wall separated the house of both women as they were married into the same family.
Before the death of the deceased, there existed an unresolved dispute between the two women and there were threats from Mrs. Ifeoma Okereke to the deceased. The PW1 testified that the mother of the 1st and 2nd Appellants accused the deceased of having killed her dog and accused her (the deceased) that she would die the way the dog died. In her further testimony, she stated that one day as she was coming back from market, she heard Cecilia Ogbonna shouting that her electric wire had been cut and approaching the place saw Uzoma Okereke (1st Appellant) and his mother who said to her son “can’t you use a stick and break Cecilia’s head for me?”
In the early hours of 29/11/2005, PW1 went to the house of the deceased and saw the stapple to her door locked but no padlock on it. She opened the door and saw the deceased with multiple injuries. When she inquired the cause of the injuries, the deceased said it was the Appellants who inflicted the injury on her which later caused her death.
The Appellants on the other hand denied inflicting any wound on the deceased and claimed that there was an armed robbery incident in the early hours of 30th November, 2005 and that the deceased died from wounds sustained from the armed robbers.
The prosecution called Seven (7) witnesses in proof of their case and the defence called five (5) witnesses and thereafter Counsel filed written addresses. The Learned trial Judge in a considered judgment delivered on the 31st day of March, 2009 found for the prosecution and convicted the Appellants and sentenced them to death by hanging.
It is against the said judgment that the Appellants appealed before us upon the following four Grounds of Appeal, vide a Notice and Grounds of Appeal filed on 8th day of April, 2009 to wit:
Ground One:
Misdirection in law and facts
The Honourable Trial Judge misdirected himself in law and fact when he held that the Deceased died on 4/12/2005.
Ground Two:
Misdirection in law and fact.
The Honourable trial Judge misdirected himself in law and fact when he held that there was no robbery attack on the night of 29/1/2005 in the deceased home and its premises.
Ground Three:
Error in law.
The Learned trial Judge erred in law when he held that the prosecution witness Nos. 1, 2, 3, 6, 7 identified the Appellants as the Uzoma, Ugochukwu and Chukwuma whom the deceased told them inflicted injuries on her.
Ground Four:
Misdirection in law and fact.
The Learned trial Judge misdirected himself in law and fact when it held that the prosecution has made out a case of murder against the Appellants beyond reasonable doubts.
As it is the practice, parties filed and exchanged briefs of argument. In the Appellants brief of argument settled by A. O. Anyadike Esq. of Counsel distilled three issues for determination.
(1) Whether the Learned trial Judge was right to have convicted the 3 accused persons when there were contradictions in prosecution date of death which he put at 4/12/2005 and that of PW 4 the doctor who conducted an inquest and gave the date of death as 30/11/2005 as per exhibit “B’.
(2) Whether the Learned trial Judge was right in concluding that there was no robbery in the area and entered judgment against the 3 accused persons and when the onus of investigation in respect of the Alibi of 3rd accused person was not discharged by the prosecution and investigating police officers.
(3) Whether the learned trial Judge was right in resolving serious issues suo motu which were seriously in conflict in favour of the prosecution without allowing due process of law through oral evidence to resolve the conflicting evidence of PW 1st, 2nd, 3rd, 6th and 7th.
In the Respondents brief of argument, settled by the Learned Director of Public prosecutions, C. C. Dimkpa (Mrs.), the following five issues were distilled for determination to wit:
(1) Whether the prosecution did not prove its case beyond reasonable doubt against the accused persons.
(2) Whether the accused persons were not properly identified.
(3) What is the effect of Exhibit “A” in the Course of trial at the Lower Court.
(4) whether any material contradiction exist in the case of prosecution.
(5) Whether there is any defence open to all or any of the accused persons.
As can be seen above, the Respondent formulated five (5) issues for determination which is clearly prolifix. It is now settled that neither party in an appeal is allowed or entitled to formulate more issues than the grounds of appeal. See Gwar vs. Adole (2003) FWLR (PT.176) 747 at 760; (2003) 3 NWLR (PT.808) 576; Anyegu v. Onuche (2009) 11 WRN 1 at 21; (2009) 3 NWLR (PT.1129) 659 at 678.
The law is trite that all issues raised and argued in an appeal must be premised on the grounds of appeal which forms the skeletal frame work within which every issue for determination must arise. For issues for determination to be competent, it must be based or related to or distilled from an identified competent ground of appeal. See Anudi vs. NNPC (2000) 10 NWLR (PT.674) 76; Archbishop of Latau vs. Alhaji Ahmed (2003) 4 NWLR (PT.811) 498. Therefore, the consequence of failure to relate or identify issue or issues with the grounds of appeal is that such issue or issues is or are liable to be struck out. See CFAO (Nig.) Ltgd. Plc. vs. Sanu (2009) 15 WRN 106; Madu vs. Mbakwe (2008) 10 NWLR (PT.1095) 293 at 312. Respondent’s issue No.3 states that,
3. “What is the effect of exhibit “A” in the Course of trial at the Lower Court is incompetent.”
Exhibit “A” referred to therein is the statement made by the deceased in her hospital bed before her death. It is a dying declaration by virtue of Section 35(1)(a) of the Evidence Act but it is not covered by any of the grounds of Appeal filed by the Appellants. It is hereby struck out for being incompetent.
I have considered the issues for determination formulated by the respective Counsel and I am of the view that Appellants issue (1) is answered by issue four (4) of the Respondent. Issue (2) of the Appellants’ and issue 5 of the Respondent are similar while Appellants’ issue three (3) encapsulates Respondents, issues 1 and 2. Therefore, the Appellant’s issues will be considered in the determination of the appeal.
Issue No.1.
Whether the Learned trial Judge was right to have convicted the 3 accused persons when there were contradictions in prosecution date of death which he put at 4/2/2005 and that of PW4 the Doctor who conducted an inquest and gave the date of death as 30/11/2005 as per Exhibit “B”‘
In arguing this issue, the Learned Counsel for the Appellants’ submitted that the Learned trial Judge misdirected himself in law and fact when he held that deceased died on 4/12/2005. He submitted that the autopsy report Exhibit “B” and the evidence of the prosecution witness No. 4, Dr. Raphael Egejuru, showed no record of admission of the deceased in to the hospital. He stated that the report states that the deceased body was stiff and she died not more than 6 hours before the autopsy was conducted on 30/11/2005, contrary to the trial Courts finding of date of death to be 4/12/2005. He referred to the evidence in chief and cross examination of PW 4 at pages 37 and 38 of the Records.
The Learned Counsel submitted that the legal implication is that the purported statement of the deceased as obtained and recorded by PW6 Corporal Oruke Wenekefe was forged and a make to rake up evidence against the Appellants. According to him, this should be jettisoned and discountenanced. It is also his submission that the burden of proof beyond reasonable doubt is on the prosecution throughout and that in a criminal case the proof must be direct and pungent without any room for doubt of the guilt of the accused, In the case of a doubt, he submitted, such doubt is usually resolved in favour of the accused and that the burden of proof by the prosecution was not discharged in the instant case. He cited Martins vs. The State (1997) 1 NWLR (Pt.481) 355, Ibeh vs. State (1997) 1 NWLR (Pt.484) 632 and Ede vs. FRN (2001) 1 NWLR (PT.695) 502.
The Learned Counsel further submitted that it is settled law that where there is doubt whether based on material contradictions or lack of sufficient evidence, the benefit of that doubt must be given to the accused. Counsel submitted that in the instant case, the contradiction in the date of death, 30/11/2005 must be resolved in favour of the Appellants and therefore that the deceased was never admitted alive in to hospital and never mentioned the names of the Appellants to any person since she was already dead and in morgue. He referred to the cases of Ibeh vs. State, (Supra) and Baruwa vs. State (1996) 7 NWLR (Pt.460) 302.
He finally submitted on this issue that Exhibit “B” indicated that the corpse of the deceased was deposited at the Federal Medical Centre, Owerri Mortuary on 30/11/2005 in a cold and stiff condition. That this uncontroverted piece of documentary evidence was not challenged by the prosecution and as such the Lower Court was bound to act on it since it was given on oath.
In his response, the Learned Director for Public Prosecutions (DPP) for Respondent submitted that there are no material contradictions found in the case of the prosecution that would create some doubt in the mind of the trial Court to inure to the Appellants benefit therefrom.
It is the submission of the Learned DPP that for a contradiction to be fatal in the prosecution’s case, the conflict, contradiction or discrepancy to the evidence of witnesses for the prosecution must be substantial or fundamental to the main issue in question before the trial Court. That it is the substantiality or fundamentality of the conflict and or contradiction to the main issue that will necessarily create some doubt in the mind of the trial Court to enure to the accused the benefit of acquittal, placing reliance on Bolanle vs. The State (2005) 7 NWLR (Pt. 925) 431 at 454 – 455.
The Learned DPP further submitted that the discrepancy in the date of death of the deceased is a mere academic exercise for the Appellants to hide under a typographical error found in Exhibit “B” the medical report to presume that the deceased died on 30/11/2005 and not four days after the attack which was 4/12/2005. It is submitted that there are sufficient evidence in the case of the prosecution which was uncontroverted and which show the date of the death of the deceased to be 4/12/2005 and not 30/11/2012 as submitted by the Appellants and referred this court to the evidence of PW1, PW3, PW6 and PW7. It is also submitted that although the Appellants at the trial tried to hide under this technicality, in their respective statements to the police showed that the deceased did not die instantly, as she was taken to the hospital where she was receiving treatment. The Learned Counsel referred this court to the statement of 1st Appellant on 6/12/2005 wherein he said “on 5/12/2005 while we were in the cell at Umuguma, Owerri Police Station, the IPO told us that the woman in the hospital has died.” He referred to Exhibit C at page 122 of the records. He also submitted that the 2nd Appellant in his statement to the Police Exhibit “D” said that “when police came, the woman was taken to the hospital for treatment.” See Page 124 of the records.
The Learned DPP further argued that for a person to be deemed to have been killed by another, the death of that person must take place within a year and a day of the cause of death. He submitted that in the instant case, the injuries were inflected on the victim Mrs. Cecilia Ogbonna by the Appellants as shown in the evidence of prosecution witnesses on 30/11/2005 and she died on 4/12/2005 barely four days later. Therefore, the one year and a day rule caught up with the Appellants. See Section 314 of the Criminal Code.
The Learned Counsel finally submitted on this issue that the trial Court was therefore right in law in its finding that there are no material contradictions in the evidence of the prosecution witnesses as regards time of the death of the deceased to suggest that the deceased did not make Exhibit “A”. The Court was urged to uphold this finding of the trial Court.
The issue raised here was whether the learned trial Judge was right to have convicted the Appellants when there were contradictions in prosecution’s date of death which he put at 4/12/2005 while the PW4, the Doctor who conducted an inquest gave the date of death as 30/11/2005.
It is clear from the evidence of the prosecution witnesses that the deceased was attacked in the early hours of the 30th day of November, 2005. On that same day, a case of wounding was reported and the Police commenced investigation and went to the house of the deceased from where she was taken to the Federal Medical Centre where she was admitted. The Police took her statement Exhibit “A”.
The deceased died of the injury inflicted on her in the early hours of 4/12/2005. All the evidence of the prosecution witnesses pointed to this fact that she died on 4/12/2005. It is also in evidence as borne out from the records of appeal that the deceased was admitted at the Federal Medical Centre, Owerri on the 30/11/2005 and died of the injuries sustained on the 4/12/2005. See the evidence of PW1, 2, 3, 5, 6 and 7. The 1st Appellant in his statement Exhibit “C” also stated that while they were at the cell, the IPO came to inform them on the 5/12/2005 that the woman in the hospital has died. The 2nd Appellant also said that the deceased was admitted into the hospital before her death. Therefore the date on which the inquest was conducted by the medical doctor cannot be 30/11/2005 the date the injury was inflicted because the deceased did not die on that date but on the 4/12/2005. The date of death in any case is not necessary in determining who inflicted the injury on the deceased, Mrs. Cecilia Ogbonna. The medical report stating 30/11/2005 as the date of death contrary to 4/12/2005, according to the findings of the trial Court based on evidence adduced before him has not misled any one as to the fact that the deceased died of the injury inflicted on her on the 30/11/2005.
The contradiction if any as alleged by the Learned Appellants’ Counsel is not one that should be resolved in favour of the Appellants. It is my humble view that the contradictions that should compel a Court to resolve such issue in favour of the accused person is the date as to the commission of the offence and not the date the victim of the act died. See Ankwa vs. The State (1969) 1 All NLR 129. A contradiction in date of death is not fundamental.
I therefore agree with the submission of the Learned DPP that for a contradiction to be fatal in the prosecution’s case, the conflict, contradiction or discrepancy in the evidence of witnesses for the prosecution must be substantial or fundamental to the main issue in question before the trial Court. The reason is that the substantiality or fundamentality of the conflicts and or contradiction to the main issue must create doubt in the mind of the trial Court to enure to the accused the benefit of acquittal therefrom. See of Bolanle vs. State (2005) 7 NWLR (Pt.925) 431 at 454 – 455; Ankwa vs. State (supra). In the instant case, there is no material or substantial contradiction that affects fundamentally the main issue before the trial Court as there is overwhelming evidence that the deceased died on the 4/12/2005 and not 30/11/2005 as stated in the post mortem report. This issue is resolved against the Appellants.
Issue No. 2
Whether the Learned trial Judge was right in concluding that there was no robbery in the area and entered judgment against the 3 accused person and when the onus of investigation in respect of the Alibi of the 3rd accused person was not discharged by the prosecution and investigation Police officers.
Arguing this issue, Learned Counsel for the Appellants submitted that the Learned trial judge was wrong when the concluded that there was no robbery within the neighhourhood and residence of the deceased on the night of 29th November, 2005. He submitted that the 3rd and 5th prosecution witnesses testified on record that armed robbers operated in the premises of the deceased on the night of 29/11/2005 and that the injury on the deceased could have been inflicted by armed robbers. It is his view that since there was evidence of armed robbery that night, the Learned trial Judge was wrong to resolve the conflict suo motu in favour of the prosecution since it was the prosecutions responsibility to investigate the truth of the allegation and it failed woefully in this regard. He submitted that the prosecution has not discharged of burden the proof beyond reasonable doubt.
On the issue of Alibi of the 3rd Appellant, Learned Counsel submitted that the Alibi of the 3rd Appellant was not investigated. He submitted that the 3rd Appellant in his statement to the police when the issue was still fresh in his mind, stated that he traveled to his home Ubulu Ihejiofor to attend to a sick brother. According to the Learned Counsel to the Appellants, the PW5 stated under Cross examination that, “on the night of the incident, the 3rd accused person was outside Imo State. I cannot remember the name of the place he traveled to and I did not visit the place”. According to Learned Counsel, this piece of evidence is true and pointed to establish the uninvestigated alibi of the 3rd Appellant. He also submitted that there was no visual identification of 3rd Appellant as to pin him to the scene of the crime. He place reliance on the case of Denis Ede & Anor vs. FRN (2001) 1 NWLR (Pt. 695) 502, to submit that in the instant case, there was no visual identification of the 3rd Appellant and that his alibi stands not destroyed.
The Learned DPP submitted that for an Appellant to merely raise a defence of alibi like the 3rd Appellant did in the instant case without giving detaifed particulars of his where about at the particular time and the people he was with and what and what he was doing at the time of the incident is not enough to exonerate him from the crime, citing in support the case of Ozaki vs. State (1998) 1 ACLR P.?7 at P. 47
Learned Counsel submitted that in the instant case where the 3rd Appellant failed to give the particulars of the place he was at the time of the crime, the names of those who were with him and the time they were together at the time the alleged offence was committed, it is not the duty of the police to go on a wild goose chase, He placed reliance on Oguala vs. State (1991) 2 NWLR (PT.175) 509 at 521, He submitted that a look at Exhibit “E” will show that 3rd Appellant never gave these particulars
The Learned Counsel submitted further that where there is direct and positive evidence of participation like in the instant case which indicted the 3rd Appellant, the alibi, even if raised will be rebutted by such evidence. The following cases were relied upon, Ikemson vs. State (1998) 1 ACLR P.80 at 98 (SC), Njovens vs. State (1973) 5 SC 17 and Odinaka vs. State (1977) 2 SC 21. The Learned counsel urged this court to uphold the findings made by the trial Court that the 3rd Appellant did not give these particulars in Exhibit “E”.
In response to the issue by the Appellants that is was armed robbers that invaded the premises of the deceased and inflicted severe injuries on her and the Appellants, the Learned DPP submitted that this is an after thought and a mere diversionary story concocted by the Appellants to divert attention away from them which has failed. He submitted that it is wrongful for the Appellants to say that the trial Court did not base its findings that no armed robbers operated within the community that night on evidence but that he did so suo motu. The Learned counsel referred to the evidence of both the IPO of Umuguma Police Division PW6 and PW7, the chairman of the local vigilante to submit that the trial Court based its findings that there were no armed robbery attack that night in the community on evidence of these witnesses. The Respondent therefore urge the Court to uphold the finding of the Lower Court.
The 3rd Appellant raised the issue of alibi as a defence that on the night of the incident that is 30/11/2005, he was in his village and did not return until on the 4th/12/2005. The law is clear that once an accused person raises alibi as a defence, it is imperative that the prosecution or the Investigating Police Officer should investigate the alibi. The reason is that, the accused is saying not only that he did not commit the crime alleged, but that he was not at the scene of the crime. The duty to investigate is one imposed by law’ See Ifeanyi vs. The State (1996) 9 – 10 SCNJ 18. Failure to investigate or discharge this duty, the accused person must Ipso facto be acquitted.
The 3rd Appellant raised the defence of alibi by stating that on the day in question, he was at Ubulu Ihejior his home town. It is not the law that once a claim of alibi is raised, it readily exculpates the accused person. A plea of alibi is demolished if the prosecution adduces sufficient evidence to fix the person at the scene of the crime at the material time. See Njovens & Ors. vs. The State (1973) 5 SC 17, Ikemson vs. State (1983) 3 NWLR (Pt.110), 453 to 466.
In the instant case, the presence of the 3rd Appellant was established at the scene of the crime. In Exhibit “A”, statement of Cecilia Ogbonna (the deceased), she said:
“It all happened yesterday night but I cannot prompt the time. Three boys entered my house namely Uzoma, Ugochukwu but I cannot remember their surnames and one Chukwuma who is a tenant residing in our area. They came saying that they will kill me before I could make a report or words they started beating me with matchets and sticks’ They forced the door when I was deeply asleep. They used their matchets give me deep wounds on my head and used sticks beat me all over my body more especially my shoulder and heart. I was very conscious when blood full all over my body. It was then they feel I am dead but I was in a state of coma and then they took to their heals……”
Exhibit “A” was strongly supported in content by the testimony of PW1, PW3 and PW7 who said the deceased told her in the morning she visited her that Uzoma, Ugochukwu, his brother and a tenant living in Innocent’s house inflicted the wounds on her. She recognized the three Appellants as the persons that inflicted her with the multiple injuries which caused her death.
It is not fool proof that once the Police fails to investigate an alibi, the ‘accused person must Ipso facto be acquitted His acquittal or otherwise will depend on the circumstances of each case and whether the trial Court believed the evidence of visual identification of the accused person. In the instant case, there was a clear identification of the 3rd Appellant by the deceased. The Appellant also stated that the deceased was known to him and could identify him anywhere. His alibi was effectively and completely destroyed. There was no duty on the prosecution to investigate the alibi and no need for the prosecution to call evidence to rebut the alibi. The trial Court was right to have acted on Exhibit A and the evidence of PW1, PW3 and PW7. See Ede vs., Fed. Rep. of Nigeria (2001) 1 NWLR (Pt.695) 502; Alabi vs. State (1993) 7 NWLR (Pt. 307) 511; Nwabueze vs. State (1988) 4 NWLR (Pt.86) 16; Okosi vs. State (1989) 1 NWLR (Pt. 100) 642. The presence of the Appellants at the scene of the crime was therefore established and the plea of alibi is destroyed.
The other dimension to the case introduced by the Appellants was that armed robbers operated within the neighbourhood and resident of the deceased on the night of 29/11/2005 and that the armed robbers inflicted the injuries on the deceased. This aspect of the case was introduced by the Appellants as their defence that it was the armed robbers that inflicted the injuries on the deceased that caused her death. This is deducible from the evidence of DW1, Ifeoma Okereke, the mother of the 1st and 2nd Appellants and also that of the 1st and 2nd Appellants. The Learned trial Judge did not believe their story. He believed the evidence of the prosecution witnesses particularly PW6, the Investigating Police Officer and PW7, the Chairman of the vigilante group of Ndegwu that no armed robbery was committed in the community that night.
PW6 testified to the effect that in the cause of investigation he met Ifeoma Okereke, the mother of the 1st and 2nd Appellants with bandages all over her head and legs, that armed robbers came to their compound and inflicted the injuries on her. He stated that he removed all the bandages on her head and discovered that she had no wound or bruises on her head or any part of her body. He concluded that from his investigation, no armed robbers visited the Community on the night of the incident and no report of armed robbery was lodged to the police.
On his part, PW7, the Chairman of the vigilante group of Ndegwu testified that his work is to guard Ndegwu town with his group and that on the 30/11/2011, they were on patrol duty till day break and at the close of work they received report of the day and that on that day, there was no report of armed robbery or gun shut.
Based on the evidence adduced before the trial Court, his finding that there was no armed robbery incident in the community on the 30/11/2005 cannot be said to be done suo motu. It is based on the evidence adduced before him at this trial. This issue is therefore resolved against the Appellants.
Issue No. 3
Whether the Learned trial Judge was right in resolving serious issues suo motu which were seriously in conflict in favour of the prosecution without allowing due process of law through oral evidence to resolve the conflicting evidence of FW1st, 2nd, 3rd, 6th and 7th.
In .arguing this issue, the Learned Counsel for the Appellants submitted that it is settled law that where there are conflicting and contradicting evidence of witnesses, there is created in the mind of the judge, a doubt as to the guilt of the accused persons, and such circumstances puts to great test the yardstick of burden of proof of crime beyond reasonable doubt by the prosecution and placed reliance on the case of
Chianu vs. The State (2002) 2 NWLR (Pt.750) at 225.
He submitted that, the evidence of PW1, 3, 4, 5 and 6 are at variance with each other and ought not to be retied on by trial Court to ground conviction. He submitted that the evidence of PW1 is at variance with PW3 when PW1 said at page 28 of records that “when I touched the door, I noticed that the staple to door was locked but there was no padlock on it. I wanted to push the door open, it was not easy to open the door as her leg held the door firm, I pushed the door with force.” That PW1 did not state that PW3 was present with her, and denied armed robbery attack that night. PW3 at page 33 of record said, “I wanted to come out but my wife did not allow me. She also did not come out. She feared armed robbers would shoot me”. He submitted that this piece of evidence holds firmly that there was armed robbery incident within that neighbourhood that night. It is also his view that in the circumstances, there ought to be a doubt created in the mind of the judge due to the contradictory evidence of the prosecution witnesses.
The Learned Counsel stated further that PW3 further said, “Chijioke forced the door open and saw the women lying in a pool of blood”‘
It is also his submission that the contradiction was further heightened when at page 34 of the records, PW3 stated “in company of the police, we took the women (i.e. deceased) to Federal Medical Centre, Owerri. Before, she was admitted to the hospital, the police asked her who gave her the wound and she mentioned the 3 Appellants as the people who attacked her and gave her the injuries.” That this piece of evidence contradicts PW2 Osuagwu Sampson at page 31 of the Records when he said, “we then moved to the house of the victim. We did not see anybody there. Everywhere was locked up. We received information that she was at the Federal Medical Centre, Owerri. We left for the hospital and saw the victim lying on the bed with bruises and wound on the head of the victim.” He therefore submitted that these are unresolved contradictions and the Lower Court was bound to resolve same in favour of the Appellant. More especially, he argued that it is not in doubt that the deceased at one time or the other during her life time had misunderstanding with the 3rd Appellant and the family of the 1st and 2nd Appellants which could have made her to accuse them of her injuries.
The Learned Counsel submitted further that PW5 under cross examination at page 42 of the records of Appeal said, “from the statement of Ifeoma Okereke a neighbor to the deceased, she stated that four men on mask broke into her room and robbed her of money, the sum of N30,000.00 and it was when the men left her house that she heard the deceased shouting and because of fear, she could not come out. From her statement, there was armed robbery in that area. It could be possible that the injury on the deceased could be as a result of armed robbery incident in that area.”
Learned Counsel submitted finally that from the conflict in evidence of the prosecution witnesses and the complaint of armed robbery, the cause of death would have been armed robbery attack and as such the Court was wrong to conclude that the Appellant murdered the deceased,
In response to this issue, the Learned DPP submitted that the defence of the 1st and 2nd Appellants that there was an armed robbery attack on them and the deceased that night which suggest the probability that it may be the alleged armed robbers that inflicted the injuries on the deceased was an afterthought and a mere diversionary story concocted by the Appellants to divert attention away from the real issue before the Court. It is also submitted that it is wrong for the Appellants to say that the trial Court did not base his finding that no armed robbers operated within the community that night on evidence but that he did so suo motu. Learned Counsel referred to the evidence of both the IPO of Umuguma police Division PW6 and PW7, the Chairmen of the Local vigilante to submit that the trial Court based his finding that there was no armed robbery attack that night in the Community on evidence of PW6 and PW7.
The law does not insist that there must be no contradictions in the evidence of witnesses called by the same party on any issue in contention. What the principle of law is, of which the Courts are well familiar in practice is that, the contradictions by the witnesses should not be material to the extent that they cast serious doubts on the case presented as a whole by that party or as to the reliability of such witnesses. Where conflicts and contradictions in the evidence of the prosecution witnesses raised no doubts as to guilt of the accused, the only duty of the trial judge is to observe and comment on them as such and no more. Such contradictions are not fatal to the prosecution’s case. Thus on the issue of contradiction, it is only contradictions on a material fact that would make a Court doubt the evidence before it. It is not just on any point. See Dominic vs. State (2002) 12 SCNJ 280; Omotola vs. State (2009) ALL FWLR (PT.464) 1490; Omonga vs. State (2006) 14 NWLR (Pt.1000) 532; Osuagwu vs. State (2009) 1 NWLR (Pt.1129) 523 at 542 – 543. Therefore contradictions which are not material or substantial go to no issue. The main interest of the Court is that the witnesses are in union or unison as to the happening of the event, but give different versions in respect of the peripheral surrounding the event.
In the instant case, the items of contradiction alluded to by the Appellants was in respect of the testimonies of PW1, PW3, PW4, PW5 and PW6 that they were grossly at variance with each other and cannot be relied upon to ground a conviction. The fact that PW1 did not state in her evidence that at the time she was in the house of the deceased and pushed the door open did not state that PW3 was there does not amount to a material contradiction. Also, the fact that PW3 stated that there was armed robbery and PW2 did not say so is not a material contradiction. They are just different version in respect of the peripheral surrounding the event. Also the fact that PW3 stated that they took the deceased to the hospital and she made statement to the Police and gave the names of the Appellants as those who inflicted injuries on her and the fact that PW2 said that they moved to the house of the deceased and did not see anybody and moved to the hospital and saw the deceased lying on the hospital bed with bruises and wound on her head, showed that injuries were inflicted on the deceased and those injuries caused her death. The trial Court considered the defence of armed robbery put forward by the Appellants and came to the conclusion that there was no armed robbery.
In the circumstance, I hold that the learned trial Judge was right in law in convicting and sentencing the Appellants to death. This appeal is unmeritorious and it is hereby dismissed. The judgment of the learned trial Judge in CHARGE NO. HOW/38C/2009 delivered on the 31st March, 2009 is hereby affirmed.
MOJEED A. OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother UWANI MUSA ABBA AJI (PJ). I agree with the reasoning and conclusion. I also abide with the consequential orders.
HARUNA M. TSAMMANI, J.C.A.: I had the advantage of reading in advance the judgment just delivered by my learned brother; UWANI MUSA ABBA AJI; JCA (Presiding).
I agree entirely with the conclusion of my learned brother that the appeal has no merit and it should be dismissed. In that respect, I also hold that this appeal has no merit. It is accordingly dismissed. The judgment of the lower court is hereby affirmed.
Appearances
Abed Anyadike, Esq.For Appellant
AND
C. C. Dimkpa Mrs. (DPP Imo State)For Respondent
