ELUJI KINGSLEY EZE v. THE STATE (2013)

ELUJI KINGSLEY EZE v. THE STATE

(2013)LCN/6718(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 20th day of March, 2013

CA/OW/30/11

RATIO

CONDITION FOR A PIECE OF EVIDENCE TO BE DEEMED CONTRADICTORY

It is the law that for a piece of evidence to be considered as contradictory of another, it should be a direct opposite of what was earlier stated or spoken. See GABRIEL v. THE STATE (1989) 5 NWLR (Pt. 122) p.457 and DAGAYYA v. STATE (2006) 7 NWLR (Pt. 980) p. 637. Per HARUNA SIMON TSAMMANI, J.C.A

CONDITION IN WHICH A CONTRADICTORY STATEMENT MAY DESTROY THE CREDIBILITY OF WITNESSES

INGREDIENTS TO BE PROVEN TO SECURE CONVICTION ON A CHARGE OF MURDER

A most convenient place to start is to state the ingredients of the offence of murder. For the prosecution to secure conviction on a charge of murder against an accused person, it must lead accurate, cogent and credible evidence to prove the following:

That the deceased had died
That the death of the deceased was caused by the accused; and
That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.

It must be noted that all the above three ingredients of the offence of murder must be proved beyond reasonable doubt before an accused can be convicted for the offence of murder. Where OGBA v. THE STATE (1992) 2 NWLR (Pt.222) 164; NWANZE v. THE STATE (1996) 2 NWLR (Pt. 428) 1; GIRA v. THE STATE (1996) 4 NWLR (Pt. 443) 375 and ONONYE v. THE STATE (2006) All FWLR (Pt. 306) 930. Per JOHN INYANG OKORO, J.C.A

Before Their Lordships

JOHN INYANG OKOROJustice of The Court of Appeal of Nigeria

PHILOMENA EKPEJustice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANIJustice of The Court of Appeal of Nigeria

Between

ELUJI KINGSLEY EZEAppellant(s)

AND

THE STATE Respondent(s)

JOHN INYANG OKORO, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Imo State High Court sitting in Oguta in charge No. HOG/16C/2006, delivered by P. C. Ikpeama, J on 26th July 2010. The information filed by the state charged the Appellant with the murder of one Silas Orji, an offence contrary to Section 319(1) of the criminal code, cap 30 Vol. II Laws of Eastern Nigeria 1963 as applicable to Imo State. A brief fact of the case leading to the conviction of the Appellant is as follows:
On 7th March, 2005, at Umuobi Asaa Ohaji in Umuagwo, at about 7.30 Pm, while PW1, Florence Orji and PW2 Queen Orji – wife and daughter of the deceased respectively were cooking their dinner at the backyard of their compound, the Appellant went inside the compound and started calling “Florence, Florence”. The PW1 asked the Appellant what the matter was that he was shouting her name. The Appellant told her that if he did not kill her husband, he would kill her. As the PW1 was pleading with the Appellant not to kill her and her husband, the Appellant gave her a matchet cut on the nail of her right index finger and the middle finger. As PW1 pleaded further the Appellant gave her another matchet cut on her left arm which was treaded in the hospital.
When PW2 saw what was happening, she asked why the Appellant gave her mother such matchet cuts at which time the Appellant gave PW2 matchet cut on her left shoulder. PW1 & 2 started crying and raising alarm after sustaining injuries from the cut by the Appellant. Their cry and shouting alerted the deceased as he was coming back from a visit to one of his Christian brothers. While the deceased was asking why his wife and daughter were crying, the Appellant heard the voice of the deceased, ran towards him and gave him matchet cuts on his left hand and the arm neatly fell off and another cut on the left and right side of the abdomen. Blood started rushing out like water and the Appellant ran away. PW1 shouted for help which attracted neighbours who assisted to take the deceased to the hospital. The deceased died before getting to the hospital.
It was however the defence of the Appellant that on the fateful date aforementioned at about 8pm, he sent his 1st and 2nd daughters to one Mabere at Ohaji to grind cassava who later came back very late. On enquiry on why they returned late, they told him that the children of PW1 fought them. While scolding his children for returning late, the deceased came with his two sons, two daughters and PW1 to ask if he was present when his children fought with those of the deceased. At this point, Marcellinus Orji pushed him down the seat he was sitting which made him to fall. While struggling to get up, they gripped him, Light Orji had a matchet while PW1 had a stick. In the struggle that ensued, Light Orji used the matchet he was holding to hit him but missed him and the matchet cut the deceased. It was his further testimony that the deceased started shouting that Light had killed him and the alarm attracted people who came to their rescue. He denied killing the deceased. He called his daughter who testified as DW2 who also corroborated his testimony.
After autopsy and Police investigation, the matter was charged to court. After hearing the case, the learned trial judge believed the evidence of the prosecution witnesses and condemned the Appellant to death by hanging. Dissatisfied with the conviction and sentence of the Appellant by the court below, he filed Notice of appeal on 28/09/10. The said Notice contains two grounds of appeal. Thereafter, the Appellant, on 10/4/12 filed two additional grounds of appeal. From the four grounds of appeal, the Appellant has distilled one issue for the determination of this appeal. In the brief settled by D. C. Denwigwe Esq. (SAN) on behalf of the Appellant, the said sole issue states:
“Whether the prosecution proved the guilt of the Appellant beyond reasonable doubt and if not whether the Appellant ought to be acquitted?”
However, in the brief of the Respondent, filed by K. A. Leweanya, Esq. Principal State counsel, three issues are distilled. The three issues are as follows:
“1. Whether or not considering the evidence particularly of PW1, PW2, PW3, the prosecution proved the offence of murder beyond reasonable doubt necessitating a verdict of guilt against the Appellant by the trial court
2. Whether or not there exist material contradictions cogent enough to disturb the verdict of the Learned Trial Judge.
3. Whether or not considering the state of evidence, the defence of self or accident or any other defence disclosed by the evidence adduced at the trial was properly assessed and acted upon before convicting the appellant for murder.”
A careful perusal of the argument of the Appellant herein and his sole issue discloses that it encompasses the three issues and arguments thereof by the Respondent. It is my well considered opinion therefore that this appeal can be determined squarely on the sole issue formulated by the Appellant. I shall therefore determine this appeal based on the said issue by the Appellant.
It was argued by the learned senior counsel for the Appellant that since the decision of the learned trial judge revolved on the determination as to whether it was the prosecution’s version of events or that of the Appellant that led to the death of the deceased, consistency in the evidence of the PW1 and PW2 as well as that of PW3 becomes imperative since the prosecution bears the burden of proving the guilt of the Appellant beyond reasonable doubt, referring to Section 135 of the Evidence Act; and the case of ALMU v. STATE (2009) 10 NWLR (Pt. 1148) 31 at 46 Para E – F. Learned counsel then listed the contradictions and inconsistencies in the evidence of prosecution witnesses which he considered are enough to vitiate the conviction of the Appellant.
The first of such material contradictions according to learned Senior Counsel for the Appellant is that whereas PW1 and PW2 told the court that three matchet cuts were inflicted on the deceased, the medical evidence from PW3 found two cuts on the deceased. Also whereas PW1 testified that their lantern was on, PW2 testified that she would be a liar if she said that the lantern was on. Again, whereas the PW1 stated that the events occurred in front of their house, the PW2 stated that the events occurred at their backyard. Learned counsel further stated that though PW2 testified that the finger of PW1 was cut off the PWI stated that her cut finger was sutured. Again, that although the court said in its judgment that it observed scars on the finger of the PW1, the record of the court does not contain such observation. Learned counsel submitted that the failure of the prosecution to observe such contradictions is fatal to its case, relying on the following cases: ONUBOGU v. THE STATE (1974) ECSLR 403 at 411 or (1974-1975) 9 NSCC Pg.358 at 366; ASUQUO WILIAMS v. THE STATE (1974-1975) 9 NSCC Pg.398 at 402-403.
According to learned senior counsel, the learned trial judge glossed over a very material evidence on record which told in favour of the Appellant. That the setting of events is a rural community of farmers which quarrels occurring at the venue where they grate cassava is a natural event in such a community. That inter-family squabble is more in accord with such a community than an unexplained outburst into a frenzy of killing and violence by a normal man in such a community who was neither drunk, nor deranged or did he consume narcotics. It was his contention that the failure of the Prosecution to call one Mebere whom the Appellant alleged in his statement that the incident took place in his house when they went to grate cassava, is fatal to the prosecution case.
Again, it was the submission of the learned Senior Counsel that the failure of the PW4, the IPO to recover the matchet the alleged instrument of the murder is fatal as that could have shown if the matchet belonged to the Appellant or the deceased. On the effect of failure to produce material evidence, learned senior counsel cited and relied on the case of AWOSILE v. SOTUNBO (1986) 3 NWLR (Pt. 829) 486 – Paras. C-D. and also Section 167 of the Evidence Act.
In conclusion, the learned senior counsel submitted that the prosecution failed woefully to prove the charge against the Appellant. He then urged this court to resolve his sole issue in favour of the Appellant.
As I stated earlier, I shall resolve the three issues by the Respondent together. The learned Principal State Counsel, K. A. Leweanya (Mrs.) who settled the brief of the Respondent submitted that in this case, the prosecution had discharged the burden of proof placed on it enough to have secured the conviction of the Appellant. She submitted that both the Appellant and the Respondent agree that the deceased died and that the prosecution proved that the death of the deceased was as a result of the act of the Appellant. She also opined that there is abundant evidence that the act of the Appellant which caused the death of the deceased was intentional with full knowledge that death or grievous bodily harm was its possible consequences. According to her, the above three ingredients were fully proved and that the court below appropriately convicted the Appellant. She relied on the following cases: NWAEZE v. THE STATE (1996) 2 NWLR (Pt. 428) 1; GIRA v. THE STATE (1996) 2 NWLR (Pt. 443) 375; OMONGA v. THE STATE (2006) All FWLR (Pt. 306) 30 and ADEKUNLE v. THE STATE (2006) ALL FWLR (Pt.332)1452.
Learned counsel submitted that PW1 & PW2 Eave a graphic description of how the appellant stabbed the deceased who died on the way to the hospital. That taking into consideration, the nature of the weapon used, the forces applied and the part of the body affected by the act of the appellant, mens Rea or mental awareness was established, citing the case of ALHASSAN MAIYAKI v. THE STATE (2008) All FWLR (Pt. 440) 629.
It was the contention of learned counsel that a person is presumed to intend the natural and probable consequences of his act. Thus, according to her, a man who inflicts matchet cuts on another cannot be heard to say that he had no intention to kill or at least cause bodily harm; nor can the knowledge that death will result when a man decapitate another person be described as improbable, relying on the case of MOHAMMED v. THE STATE (1991) 5 NWLR (Pt. 192) 438 at 454.
On the issue of contradictions which is contained in the Respondent’s second issue, learned counsel submitted that it is not all contradictions and inconsistencies that are capable of vitiating the case of the prosecution, relying on the case of EJEKA V. THE STATE (2003) 7 NWLR (Pt.819) 408. According to her, a piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts and not necessarily when there are minor discrepancies in the details between them, citing the cases of IDIOK v. THE STATE (2006) All FWLR (Pt. 333) 1788 and OGOALA v. THE STATE (1991) 2 NWLR (Pt. 175) Pg. 509. Learned counsel then submitted that PW1 and PW2 gave account of what they saw happened to the deceased. That the issue is that the Appellant gave the deceased matchet cuts which led to the deceased bleeding to death on that very night. So, whether it was one cut, two cuts or three cuts is immaterial, she concluded.
It is the further submission of learned counsel that there is no contradiction at all between the evidence of PWI & PW2 on the one hand and PW3 on the other. That it would have amounted to contradiction if PW1 and PW2 had said that it was matchet cuts that the deceased sustained but it turned out that the deceased was shot with gun or strangulated which is not the case here. On the alleged contradiction as regards the lantern being on or not at the time of the incident learned counsel for the Respondent, referred to page 32 of the Record where PW2 stated that her mother was telling the truth because she was in the kitchen and did not enter the rooms to see if there was lantern or not.
The learned Principal State counsel further submitted that the learned senior counsel quoted the PW1 wrongly on what she said regarding where the incident took place. It is her contention, referring to Page 28 of the record that the PW1 said that “the accused gave my husband the matchet cuts outside the house but inside our compound” and not whether it was in front of the house or at the back. Also referring to page 26 of the Record the learned state counsel submitted that the PW1 actually showed her sutured finger to the court which recorded same contrary to the submission of the Appellant that there is no such scene in the Record.
On the issue of the instrument used i.e. the matchet, learned counsel submitted that since there is evidence that after stabbing the deceased, the appellant fled with the matchet, the failure of the IPO to produce the matchet in court cannot vitiate the conviction and sentence of the Appellant. Learned counsel then submitted that the alleged contradiction highlighted by the learned senior counsel for the Appellant in the evidence of PW1, PW2 and Exhibit C are mere minor variations and discrepancies which are not material, relying on the case of GABRIEL v. THE STATE (1989) 5 NWLR (Pt. 122) 457.
On the state of evidence and particularly on the defence set up by the Appellant, the learned Principal State Counsel and submitted that the Appellant heard the evidence of PW1 and Pw2 that none of their family members went to Mabere’s compound to grate cassava and yet he who alleged that this incident took place in Mabere’s compound, failed to call him as a witness in his defence. That having denied preparing any cassava on the fateful dated, there couldn’t have been any quarel between the two families as narrated and claimed by the appellant. Learned counsel refers to page 34 of the record where it was alleged that it was Marcellius the son of the deceased who stabbed him and at the same time that it was Light, also the son of the deceased who stabbed him. This alone is a clear contradiction in the evidence of the defence, she opined.
It was learned counsel’s poser that assuming that it was Light Orji who mistakenly stabbed his father; could he have mistakenly given him several deep cuts on the stomach and on the hand? She submitted that it was all efforts by the Appellant to cover up the truth. She urged the court to hold that the court below was right to prefer the evidence of the prosecution witnesses against that of the Appellant. He further urged the court to resolve these issues against the Appellant.
In his reply brief, the learned counsel for the Appellant faulted the submission of the Respondent’s counsel that the prosecution proved the essential ingredients of the offence of murder and that the cases cited by the Respondent are inapplicable. That in the case of NWAEZE v. THE STATE (supra) relied upon the prosecution, the matchet used was recovered but in the instant case, no attempt was made to recover the matchet used. Also that the prosecution and the court failed to consider the defence of the Appellant that the offence was committed by another person relying on the cases of CLEMENT OBRI v. THE STATE (1997) 7 NWLR (Pt. 513) 352; AIGBADION v. THE STATE (2000) 7 NWLR (Pt. 666) 68; ONUCHUKWU v. THE STATE (1998) 4 NWLR (Pt. 547) 576.
I observe that the learned senior counsel has embarked on fresh and further argument in the reply brief. I shall however discontinuance those other arguments in the reply brief which are not meant to answer to new or fresh points of law raised by the Respondent in his brief of argument. Reply brief is not an avenue for Appellant to reargue his appeal but merely to answer to fresh issues raised by the Respondent in its brief. See OJIOGU v. OJIOGU (2010) 9 NWLR (Pt. 1198) 1.
The sole issue in this appeal turns on whether or not the prosecution proved the guilt of the Appellant beyond reasonable doubt. As I understand this issue, the main task of this court is to determine based on the evidence led before the lower court, whether the learned trial judge was right in accepting the evidence of the prosecution witnesses over and above that of the Appellant. I have already summarized the evidence of both parties and I shall refer to them as appropriate in the course of this judgment.
A most convenient place to start is to state the ingredients of the offence of murder. For the prosecution to secure conviction on a charge of murder against an accused person, it must lead accurate, cogent and credible evidence to prove the following:
1. That the deceased had died
2. That the death of the deceased was caused by the accused; and
3. That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.
It must be noted that all the above three ingredients of the offence of murder must be proved beyond reasonable doubt before an accused can be convicted for the offence of murder. Where OGBA v. THE STATE (1992) 2 NWLR (Pt.222) 164; NWANZE v. THE STATE (1996) 2 NWLR (Pt. 428) 1; GIRA v. THE STATE (1996) 4 NWLR (Pt. 443) 375 and ONONYE v. THE STATE (2006) All FWLR (Pt. 306) 930.

In a murder charge such as the instant appeal, there is need for the prosecution to be extremely careful in assemblage of evidence and in the prosecution of the case. The court is also under a duty to be circumspect to in order not to allow an innocent person to be condemned to death as much as he should not allow the guilty to go scot free. See EKAIDEM v. THE STATE (2012) All FWLR (Pt 631) 1587 at 1610 A – C; 161-1612 G-D; UKORAH v. THE STATE (1977) 4 SC 167.
In the instant case, there is clear, abundant and undisputed evidence that the deceased, Silas Orji, died on the 7th day of March, 2005. Both the prosecution witnesses and the appellant agree that the deceased died on that date. I need not say much on the issue since both parties agree that the deceased had died.
The second ingredient of the offence of murder which the prosecution must prove, is that the death of the deceased was caused by the accused person and in this case, the Appellant. Let me state emphatically that in a murder trial, there must be clear and unequivocal evidence before the court that the death of the deceased was the direct result of the act of the accused to the exclusion of all other reasonable probable cause. That being the case, in order to establish a causal link between the act of the accused person and the relevant consequence as a factual question, no aspect of the enquiry should be left to assumption, speculation or conjecture. In fact the direct evidence required to prove the cause of death in a murder charge must be such as would connect the death of the deceased person with the act of the accused. In our criminal justice system, no judge is permitted to speculate as to the cause of death. See OFORLETE v. STATE (2000) FWLR (Pt. 12) 2081, (2000) 3 NSCQR, 243; UGURU v. STATE (2000) FWLR (Pt. 103) 330; OKOKON OMONGA v. THE STATE (2006) All FWLR (Pt. 306) 930.

I need to emphasis that the prosecution is under a duty to prove the cause of death and unless the cause of death is positively proved either by direct or circumstantial evidence, the prosecution cannot obtain a conviction. It must be established not only that the act of the accused person could have caused the death of the deceased but that in actual fact the deceased died as a result of the act of the accused person to the exclusion of all other possibilities. See DURU v. STATE (1993) 3 NWLR (Pt. 281) 283; KANU v. STATE (1993) 9 NWLR (Pt.317) 304; AUDU v. STATE (2003) FWLR (Pt.153) 325; UYO v. ATT. GEN. OF BENDEL STATE (1936) 1 NWLR (Pt. 17) 418; OFORLETE v. STATE (supra).
In the instant case, having carefully perused and considered the evidence of PW1, PW2 and PW3, I am persuaded to agree with the learned trial judge that the prosecution had proved beyond reasonable doubt that it was the Appellant who stabbed the deceased with a matchet and that it was the result of the several matchet cuts which led to the death of the deceased. The PW1, and PW2 who witnessed the incident, gave a detailed narrative of the events which led to the death of the deceased right from the time the Appellant arrived the compound of the deceased up to when he (the deceased) died. The PW1 and PW2 graphically gave details of how the Appellant on 7th March, 2005 at about 7.30pm came to the compound of the deceased and threatened to kill PW2 if he did not kill the deceased. In furtherance of that threat, the Appellant gave matchet cuts to PW1 and PW2 which injuries were treated in the hospital and which the learned trial judge observed and noted in the record. There is cogent evidence that the Appellant after inflicting injuries on PW1 and PW2 also gave several matchet cuts on the hand and stomach of the deceased resulting to the profuse bleeding that caused the death of the deceased on his way to the hospital that same night. Hear the evidence of PW1, on the issue:
“My daughter was shouting and crying following the matchet cuts on us. The cries attracted my husband who was coming back from o visit to one of his brothers in Christ. My husband was asking why his wife and children were crying. The accused heard the voice of my husband and ran towards him. He gave my husband matchet cuts on the left arm nearly fell off, on the left and right side of the stomach. My husband fell down and blood was rushing out like water. I started shouting that Eze meaning the accused has killed my husband and he ran away. People rushed to the scene and helped me to take my husband to the hospital but before we got there he died.”
The above was a testimony of an eye witness which was corroborated by PW2. The PW3, a medical doctor also gave evidence confirming those matchet cuts on the deceased. The learned counsel for the Appellant had argued that there was contradiction in the prosecution’s case when he stated that the medical evidence from PW3 found “two cuts” on the deceased but each of PW1 and PW2 emphatically insisted that three cuts were inflicted on the deceased. I think as was rightly submitted by the learned Principal State counsel, the PW1 and PW2 narrated what they saw and there is no evidence that they emphatically insisted on three cuts. The issue here is that the Appellant gave the deceased matchet cuts which led to the deceased bleeding to death on that very night, whether it was one cut, two cuts or three cuts, for me, is immaterial.
The point has to be made that a piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts and not necessarily when there are some minor discrepancies in the details between them. Two pieces of evidence contradict one another when they are by themselves inconsistent, while a discrepancy may occur when a piece of evidence says or contains some minor differences in their details. See IDIOK v. THE STATE (2006) All FWLR (Pt. 333) 1788 OGOALA v. STATE (1991) 2 NWLR (Pt. 175) ONUBOGU v. STATE (1974) 9 SC I; EYO v. STATE (2010) All FWLR (Pt. 533) 1913.
Having perused the evidence of the prosecution witnesses, it is my view that there are no contradictions at all in their testimonies. Contradiction in the evidence of the prosecution witnesses is fatal if they are material and they are material if they are likely to create doubt in the mind of the court. The PW1, PW2 and PW3 agree that there were matchet cuts on the deceased. In fact PW1 and PW2 actually saw when the Appellant stabbed the deceased. It would have been a different situation if PW1 and PW2 had said it was matchet cuts that the deceased sustained and it turns out that the deceased was shot with a gun or strangled, but that is not the case here. Also, issue as to whether PW1 saw lantern or not are immaterial to this case. It is in the class of minor discrepancies. And in any case, the PW2 said since she was not in the room, she could not say if her mother saw lantern in the room or not.
The learned senior counsel made much weather on the issue of contradiction in the evidence of prosecution witnesses but failed to show contradictory evidence on issues which are material particular. Contradictions between two pieces of evidence, I must say, go to the essentiality of something being or not being of the same character or form, whereas minor discrepancies depend on the persons or witness astuteness and capacity for observing meticulous details. The core evidence led by the prosecution witnesses is that the Appellant stabbed the deceased with matchet severally and that blood oozed profusely and that the deceased died the same night on the way to the hospital. There is no contrary evidence by the Prosecution Witnesses. Even if it was one matchet cut, the type described by PW1 that the arm of the deceased almost fell off; it was enough to cause the deceased to bleed to death. But in this case, apart from the cut on the hand, evidence shows that the Appellant also stabbed him in the abdomen which Exhibit C, the medical report describes as follows:
“There is also a shallow linear laceration- 8cm at the left lumber region of the abdomen out with no demonstrable hemoperitonem”
Exhibit C also reveals an extensive deep linear laceration – 6cm x 4cm at the anterio media aspect of the left forearm which severed the medical vessels of the left forearm with homatoms collection there.
Although medical evidence may be necessary in murder cases, where, however the cause of death is obvious and direct, it ceases to be of any practical or legal necessity. Where death results from the acts of an accused instantaneously, medical evidence on the cause of death is legally unnecessary. For me, where a man is attacked with a leathal weapon like a matchet as in this case, and the deceased died on the spot, it is hardly necessary to prove the cause of death as it can properly be inferred that the wound inflicted caused the bleeding which led to the death of the deceased. Exhibit C, tendered through PW3 confirmed that the deceased died as a result of the injury sustained through the matchet cut. See OGBU v. STATE (2007) 5 NWLR (Pt. 1028) 635; AHMED v. STATE (2002) FWLR (Pt.90) 1365.

There is no doubt that when the Appellant stabbed the deceased on one arm and abdomen, he intended to kill him or at least cause him grievous bodily harm. A man who nearly cuts off the arm of another and yet another cut on the abdomen as in this case must be deemed to have intended to cause such bodily injury as he knows that death would be the probable consequence of his act. See MOHAMMED GARBA v. THE STATE (2000) 77 LRCN 1126; ALHASSAN MAUYAKI v. THE STATE (2003) All FWLR (Pt. 440) 628; MOHAMMED v. STATE (1991) 5 NWLR (Pt. 192) 438.
In his defence, the Appellant had told the learned trial judge that in the evening in question; he had sent his two daughters to Mebere’s place to grind cassava. That his daughters came back late at about 9pm. While he was scolding his children the deceased came in company of his two sons and wife. As he was talking with the deceased’s sons Marcellinus pushed him off the seat and he fell down. When he got up Marcellinus gripped him. Light Orji, also son of the deceased had a matchet and their mother had a stick. He struggled with Light, Marcelinus and the deceased. Light extricated himself from him, raised the matchet he had on him to cut him (the Appellant) but the matchet cut the deceased.
Without much ado, the learned trial judge rejected such line of defence as an afterthought. The learned senior counsel for the Appellant argued that the failure of the prosecution to call Mebere to testify is fatal to their case and also the failure of the Investigating Police Officer to recover the matchet used was also fatal to their case. Under cross examination, the learned counsel for the Appellant put it to PW2 two aspects of the Appellants’ defence as follows:
“Put: Chinonso went to where they grind cassava and had quarrel with the children of the accused
Ans: Chinonso did not go to where they grind cassava and we did not prepare cassava that day.”
See page 33 of the Record.
Also on page 34 of the record, learned counsel also put it to PW2 as follows:
Put: Your brother Marcellinus raised his own matchet to cut the accused but the accused dodged and the accused matchet hit your father on the stomach.
Ans: My brother Macellinus was where he works in Rivers State during this incident and was not at home and could not raise matchet against the accused.
It appears that the instruction the Appellant gave to his counsel is different from his evidence in court. Whereas the Appellant said it was Light Orji’s matchet which cut the deceased, learned counsel put it to PW2 that it was the Appellant’s matchet that cut the deceased while dodging from Marcelinus. To date, there is no attack on the record of appeal and I accept that what are written therein are correct. Is it the matchet of Light or that of the Appellant which stabbed the deceased? The Appellant and his counsel confused the defence of the Appellant. And in any case, was the prosecution bound to call Mebere to testify, failure of which would be fatal to the prosecution’s case? In NWAEZE v. STATE (1996) 2 NWLR (Pt. 425) 1 at 15 Para C – D the Supreme Court stated the position as follows:
“It is sufficient to say, in this connection, that the law imposes no obligation on the prosecution to call a host of witnesses. All the prosecution needs to do is to call enough material witnesses to prove its case and, in so doing, it has discretion in the matter. See ADAJE v. THE STATE (1979) 6-9 SC 18 at Pg. 28. If the evidence of a witness is very essential to the defence of the accused, it is for the accused to call him. He should not expect the prosecution to call the witness since the prosecution is not expected to perform the function of the prosecution and the function of the defence. See ASARIYU v. THE STATE (1987) 4 NWLR (pt. 67) 709 and OGBODU v. THE STATE (1987) 2 NWLR (Pt. 54) 20 in which it was held that the prosecution was not bound to call the son of the Appellant who was present when the crime was committed if the prosecution felt his evidence was not vital to its case. The defence might call him, if it desired, nothing stopped it from doing so.”
The argument of the learned senior counsel for the appellant on the failure of the prosecution to call Mebere is not cogent enough to change matters. It is the Appellant who raised a defence which touched Mebere. For me, I think it is also the Appellant who had the duty to call him to buttress his claim. The failure to call Mebere, rather than being fatal to the prosecution’s case, is, and sadly so, fatal to the defence of the Appellant. The PW2 denied emphatically that they went to Mebere’s place to grind cassava. She even said that they did prepare cassava on that day.
Again, if it is true that Light Orji mistakenly stabbed his father, as the Appellant would want the court to believe, did he mistakenly give his father several matchet cuts? What about the matchet cuts on PW1 and PW2? Even at the appellate level, I find it difficult to believe the story of the Appellant. Speaking for myself, I hold a strong view that this story by the appellant was cooked up peradventure the court may be persuaded to accept it as the true position. With all modesty, I think the court is wiser in such matters. Any wonder therefore that the learned trial judge preferred the testimony of the prosecution over and above that of the appellant? The evidence of the prosecution witnesses is water-tight and is cogent and credible enough to prove that the Appellant gave the several matchet cuts on the deceased and also that the deceased died the same evening on their way to the hospital as a result of excessive bleeding from those wounds.
The PW1 told the court below that after the Appellant stabbed them, they raised an alarm and the Appellant ran away with the matchet he used to kill the deceased. For me, the eye witness account of how the Appellant stabbed the deceased and the medical report which states that the wound on the deceased was consistent with the use of a sharp object are more than enough and erases any doubt which the failure to recover the matchet could have created.
On the whole, it is my well considered view that the prosecution had proved to the satisfaction of the court that it was the Appellant who stabbed the deceased who died as a result of the wounds caused by the Appellant. I have no reason to disturb the judgment and sentence of death imposed on the Appellant by the learned trial judge. Therefore, I resolve the lone issue formulated by the Appellant against him.
In the light of all I have stated above, it remains for me to say that this appeal lacks any scintilla of merit and is hereby dismissed. I uphold the judgment of the High Court of Imo State holden at Oguta presided over by Hon. Justice P. C. Ikpeama which judgment was delivered on 26th July 2010 in which the Appellant was sentenced to death by hanging. Appeal is accordingly dismissed.

PHILOMENA MBUA EKPE, J.C.A: I have had the privilege of reading in advance the judgment just delivered by my learned brother JOHN I. OKORO, JCA. His Lordship has exhaustively dealt with all the issues herein and I have nothing more useful to add. I uphold the judgment of the High Court of Imo State holden at Oguta presided over by Hon. Justice P.C. Ikpeama delivered on the 26th day of July 2010 whereby the Appellant was sentenced to death by hanging.
This appeal is accordingly dismissed by me.

HARUNA SIMON TSAMMANI, J.C.A: My Learned brother, JOHN I. OKORO; JCA gave me the opportunity to read in advance the judgment just delivered by him.
My Learned brother painstakingly considered and resolved the pertinent issues that arose in this appeal. I agree totally with his reasoning and conclusion that the appeal has no merit.
It is the law that for a piece of evidence to be considered as contradictory of another, it should be a direct opposite of what was earlier stated or spoken. See GABRIEL v. THE STATE (1989) 5 NWLR (Pt. 122) p.457 and DAGAYYA v. STATE (2006) 7 NWLR (Pt. 980) p. 637.

A contradictory statement destroys the credibility of witnesses, but for a contradiction to destroy the credibility of a witness, it must be a maternal contradiction in the sense that it goes to the substance of the case, and not when it is minor or of a peripheral nature. See OMONGA v. STATE (2006) 14 NWLR (PT.1000) p.532 and MAIYAKI v STATE (2008) 15 NWLR (Pt.1109) p.173. In the instant case, there were no contradictions at all in the testimony of the prosecution witnesses. The P.W.1 and P.W.2, who were victims of the Appellant’s assault, also saw the Appellant inflict matchet cuts on the deceased. There was excessive bleeding from the matchet cuts which ultimately led to the death of the deceased that night of the incident. The severity of the attack on the deceased by the Appellant shows clearly that the sole mission of the Appellant was to terminate the deceased’s life.
For the above reasons and the detailed reasons in the judgment of my learned brother, I too agree that this appeal is utterly without merit. It is accordingly dismissed. The conviction of and sentence meted on the Appellant by the Court below is hereby affirmed.

Appearances

M. S. Agwu Esq. with him, T. A. Francis Esq.For Appellant

AND

K. A. Leweanya (Mrs.), Principal State CounselFor Respondent