OBINNA ORANIKA v. THE STATE
(2018)LCN/12040(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of August, 2018
CA/OW/284C/2016
RATIO
CRIMINAL LAW: CHARGE OF MURDER
“To successfully establish a charge of murder against an accused person, the prosecution is required to establish the following ingredients, conjunctively:
i. The deceased died,
ii. The death of the deceased was a result of the act of the accused person, and
iii. The said 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.
See the cases of Ogunniyi v. The State(2012) LPELR 8567; Adava v. The State (2006) 9 NWLR (Pt. 984) 152 and Sani v. The State (2013) LPELR 20382.’ PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
EVIDENCE: WHAT IS EXTRA – JUDICIAL CONFESSION
“What is paramount in a criminal trial, is the testimony of the witnesses in Court and fair opportunity given to the parties to present their cases. Any other additional evidence adduced by the prosecution (the respondent in the instant appeal) would be more of a surplusage and not of a necessity. See the case of Peter v. The State (2013) LPELR 20302 and the case of Zaman v. The State (2015) LPELR-24595 (CA), where this Court, per Tur, JCA, while relying on the case of Omisade v. Queen (1964) NMLR, 67 enunciated as follows: ‘Extra-judicial confessions can serve as auxiliary evidence or corroboration of accomplice evidence and no more.'” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
EVIDENCE: WHERE EVIDENCE FALLS UNDER A CATEGORY
“The law is well settled, that no Court of law is empowered to make reference and or rely on any piece of evidence or document (as the case may be) which has not been properly and formally placed before it, in the course of reaching its decision in a case. See Goodnews Agbi & Anor. V. Chief Audu Ogeh & Ors. (2005) 8 NWLR (Pt. 926) 40 and Alhaji Chief Jibrim v. Izuagie v. Jimon Osuma Amuda & Anor. (2006) ALL FWLR (Pt. 294) 493. The only circumstance, whereby a Court is permitted to make reference or rely on evidence not tendered and formally admitted before it, is where the evidence or document falls under the categories of evidence or document that the Court is permitted to take judicial notice of, in accordance with the Evidence Act or permitted by any other law regulating the subject matter with which the evidence or document relates. See the case of Abdullahi & Anor. V. Sadauki & Ors. (2008) LPELR 3557.” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
WORDS AND INTERPRETATION: THE MEANING OF THE ‘CONTRADICTION’
“The word ‘contradiction’ comes from two Latin words ; contra, which means opposite, and dicere, which means to say. So, in ordinary parlance to contradict is to speak or affirm the contrary. Hence in the law of evidence, 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, say, details between them.” Per NnaemekaAgu, JSC. See also the cases of Okere v. State (2001) 2 NWLR (Pt. 697) 397; Eke v. State (2011) LPELR 1133; Wachukwu & Anor. V. Owunwanne & Anor. (2011) LPELR 3466; Ogidi v. State (2003) 9 NWLR (Pt. 824) 1. Ezenwankwo v. The State (2015) 2 NWLR (Pt. 1443) 265, Uche v. The State (2015) 11 NWLR (Pt. 1470) 380, Mathew v. Otabor (2015) 14 NWLR (Pt. 1479) 360 and Abiodun v. F. R. N. (2016) 15 NWLR (Pt. 1540) 63.” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
OBINNA ORANIKA Appellant(s)
AND
THE STATE Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court, Imo State sitting at Owerri (hereinafter referred to as the lower Court), delivered on the 30th dayof September, 2015 by Hon. Justice L. O. Azuama, J., in Charge No. HOR/18C/2013. Therein, the accused person/appellant (hereinafter referred to as the appellant) was found guilty of manslaughter and sentenced to life imprisonment.
BRIEF FACTS OF THE CASE:
The appellant was charged for the murder of one Iwuoha Godwin, pursuant to Section 319 (1) of the Criminal Code, Cap. C38, Laws of the Federation of Nigeria, 2004, as applicable in Imo State. The appellant was alleged to have initially knock down the deceased with his Mercedes Benz Car and the deceased fell with his motorcycle. That the deceased protested, and a scuffle ensued between them. During the fracas, the appellant lifted the deceased and slammed him ?on stony ground?. As a result thereof, the deceased sustained spinal injury which led to his death. Consequently, the appellant was charged with murder.
In its bid to prove the guilt of the appellant, the prosecution/respondent (hereinafter referred to as the respondent) called five witnesses. In his defence, the appellant testified for himself and called his father, Oranika Augustine Godday as DW2. Upon the conclusion of evidence, the learned counsel for the parties filed, exchanged and adopted their written addresses in support of and to buttress their respective standpoints. Thereafter,the case was adjourned for delivery of judgment.
The learned trial judge in a considered and or reserved judgment, found that the charge of murder was not successfully proved against the appellant. However, he found that the offence of manslaughter was proved. Thus, he convicted and sentenced the appellant to life imprisonment accordingly, in his word, the learned trial judge found and held that:
”In the final analysis, though there is no taking away the fact that the act of the accused person caused the deceased grievous bodily harm which eventually resulted to his death and given also the view I hold, that the requisite intention to kill was not proved, I therefore hold that the charge of murder preferred against the accused person was not proved by the prosecution as the result of death proved in this case, was inadvertent and unforeseen.
In this case, the act of carrying up the deceased and hitting him on a hard earth, without question, is a dangerous act by objective standard. See R. vs. Church (1966) 1 QB 59 AT 70.
It was willfully done and death resulted therefrom even when it was inadvertently so. Hence, since that was not excused, not approved or justified, I have no hesitation in coming to agreement with the learned counsel for the prosecution, that the evidence before this Court, sufficiently established the offence of manslaughter against the accused.
Consequently this Court finds the accused person guilty of manslaughter and accordingly sentence him to life imprisonment.”(See pages 168- 167 of the record of appeal.)
Unsurprisingly, the appellant was not satisfied with the said decision of the lower Court, thus he appealed against the same to this Court, vide a notice of appeal dated the 15th date day of December, 2015 and filed on the 17th day of December, 2015. The appellant’s complaints against the lower Court’s judgment were captured and expressed within the ambit of his five grounds of appeal. The grounds of appeal without their particulars are reproduced below as follows:
GROUND ONE: ERROR IN LAW
The learned trial judge erred in law when he failed to resolve material contradictions, in evidence of PW2, PW4 in favour of the Accused/Appellant and which contradiction are relevant to the veracity of PW2.”
GROUND TWO: ERROR IN LAW
The learned trial judge erred in law when he failed to resolve material contradictions, in evidence of PW2 and PW5 in favour of the Accused/Appellant.”
GROUND THREE: ERROR IN LAW
The learned trial judge erred in law when he had and relied on the alleged extra-judicial statement of Accused person in convicting the Accused/Appellant without same being tendered by the prosecution.
GROUND FOUR: ERROR IN LAW
The trial Court erred in law when it held, and convicted the Accused/Appellant for the offence of manslaughter against the constitutional right of the Accused/Appellant under 1999 Constitution as Amended.
GROUND FIVE
The trial Court erred in law when he held and applied Section 179 Criminal Procedure Act in convicting the Accused/Appellant for manslaughter against and contrary to Section 36 (6), (a), (b) and (c) of the Constitution of Federal Republic of Nigeria, 1999 as amended.
In prosecution of the appeal, the record of proceedings was compiled, transmitted and served on the parties in accordance with the rules of this Court. Thereafter, the parties filed and exchanged their respective briefs of argument. The appellant’s brief of argument prepared by B. U. Nwanegbo Esq., was dated the 15th day of May, 2017 and filed on the 19th day of May, 2017. On the reverse, the respondent’s brief of argument dated the 22nd day of January, 2018 was filed on the 24th day of January, 2018. The said respondent’s brief of argument was deemed as properly filed and duly served by the order of this Court granted on the 30th day of January, 2018. The respondent?s brief of argument was settled by Mrs. K. A Leweanya, the Assistant Chief State Counsel, Department of Public Prosecutions, Ministry of Justice, Imo State.
For the determination of this appeal, the learned counsel for the appellant donated three issues for resolution. The issues are as follows:
(i) Whether the learned trial judge was right in relying on the evidence of PW2 which was in gross contradictory with the evidence of PW4 and PW5 in convicting the Accused/Appellant which contradiction ought to be resolved in favour of the Appellant and failure on which occasioned miscarriage of justice on the Appellant. (Grounds One and Two).
(ii) Whether the learned trial judge was right in relying on a document (extra-judicial statement of Accused person) or a piece of evidence not placed before him in reaching his decision convicting the Appellant for manslaughter. (Ground Three).
(iii) Whether the learned trial judge’s conviction of the Appellant for the offence of manslaughter relying on Section 179 of Criminal Procedure Act was against the constitutional right of the Appellant under Section 36(6) (a) (b) and (c) of the Constitution of Federal Republic of Nigeria, 1999 as amended and therefore inconsistent with the Constitution. (Grounds Four and Five).”
Also, the respondent’s counsel generated three issues for resolution in the course of determination of this appeal. The issues are reproduced below:
i. Whether there are material contradictions in the evidence of PW2, PW4 and PW5 and whether the learned trial judge was right in relying on the evidence of PW2 to convict the Appellant (Grounds One& Two).
ii. Whether the learned trial Judge relied on a document not placed before him in convicting the appellant for manslaughter (Ground Three).
iii. Whether the Court can convict for a lesser offence and whether the conviction of the Appellant for the offence of Manslaughter relying on Section 179 of the Criminal Procedure Act was against the constitutional right of the Appellant.”
I have duly considered the two sets of issues formulated by the learned counsel for the parties and I am of the considered opinion that they are essentially the same, save for the difference in the usage of words, language and style. However, I found the set of issues formulated by learned counsel for the appellant more comprehensive and apt, thus, the issues are adopted by me for resolution and the determination of this appeal.
ARGUMENT ON ISSUES: ISSUE NO. 1.
On Issue No. 1, the learned counsel for the appellant set out by defining the term contradiction, as ‘inconsistency, illogicality; proving a fact as contrary to what have been asserted e.g. by a witness’.
He referred to the Nigerian Law Dictionary by Suleiman Ismaila Nchi, 1st Edition (1996), Tamaza Publishing Company Limited for this definition. The learned appellant’s counsel then submitted that when evidence led by the prosecution is found to be contradictory, the said contradiction would be resolved in favour of the accused and the prosecution’s case would be regarded as having failed. He called in aid, the decision in the case of Sunday v. State (2010) ALL FWLR 548.
The appellant’scounsel contended that, there was contradiction which pertained to the evidence of the respondent’s witnesses with particular reference to the supposedly direct evidence of PW2, Chidinma Olemba. He argued that the ‘evidence of PW2 woefully and grossly is in opposite of evidence of PW4 on the account of the presence of PW2 on the scene of crime on 30/3/2013.
While the evidence of PW2 at pages 76 – 80 of the Records gave accounts of series of material facts which allegedly happened on 30/3/2013 connecting the Appellant to the crime, PW4’s evidence of material facts of the absence of PW2 on the 30/3/2013 at the scene at pages 87 – 92 of the records showed that PW2 was not seen or present at the scene of crime on the same 30/3/2013.”
The learned counsel for the appellant then argued that the evidence of the respondent’s witnesses with regard to the surrounding circumstances of the appellant’s arrest and the presence of the PW2 at the scene of the crime were contradictory and has rendered the respondent’s evidence incredible and unsafe. He also submitted, that ‘when evidence of the prosecution or its witnesses is in material contradiction, it is regarded as unsafe, dangerous and likely to occasion a miscarriage of justice’. He referred us to the cases ofJimmy v. State (2014) ALL FWLR (Pt. 714) 113 and Akpa v. State (2010) Vol. 8 LRCNCC 87.
Also, the learned counsel for the appellant contended that the learned trial judge failed to do a proper evaluation of the evidence adduced by the respondent, particularly with regard to the testimonies of PW2, PW4 and PW5, which he alleged are materially contradictory; he stated that the failure of the lower Court to resolve and determine these live issues in favour of the Appellant amounted to picking, choosing and dropping evidence which occasioned miscarriage of Justice on the Appellant?. He referred us to the case of Alhaji B. Jawa Ndo & Anor. v. Madam Failiat Bakare (2006) ALL FWLR (Pt. 332) 1590.
In addition, the learned counsel for the appellant argued that ‘proof of the inconsistencies in the evidence of PW2, PW4 and PW5 is the fact that the prosecution did not tender either the statement of PW2, investigation report PW4, PW5 and the statement of DW1 at least to establish that there was investigation of a murder case against the appellant’. The learned counsel then submitted, that the refusal and or failure of the respondent to tender the said statements amounted to withholding evidence pursuant to Section 167 (d) of the Evidence Act, 2011. He therefore urged this Court to resolve this issue in favour of the appellant.
In reply, the learned counsel for the respondent submitted, that ?there are no material contradictions in the evidence of the PW2, PW4 and PW5 and as such no miscarriage of justice .. Before any conflicts or contradictions or even discrepancies in the evidence of the witnesses for the prosecution can be fatal to the prosecution’s case, the conflicts or contradictions must be substantial or fundamental to the main issue in question before the trial Court and therefore necessarily create some doubt in the mind of the trial Court then an accused is entitled to benefit therefrom. In the instant case, there are no material contradictions but mere discrepancies which do not go to the root of the matter. He referred us to the case ofChukwu v. The State (1999) 5 SCNJ 223.
The learned respondent’s counsel argued, that the ‘main issue that is to be addressed which was in fact considered at the trial is when, how, where and who gave him (that is the deceased) the fatal blow that caused his death’. He stated that the prosecution’s evidence in this regard established how the appellant was to be held responsible and the said evidence was not by any means contradictory, rather it was the appellant’s evidence which was adduced in his defence that was self contradictory. On the standpoint of the learned appellant’s counsel with regard to withholding of evidence, the learned counsel for the respondent submitted, that ‘it is trite that the statement of prosecution’s witnesses is not to be tendered in a proceeding except for the purpose stated by law which is for the purpose of contradicting such witness’.
He referred us to the case of Esangbedo v. The State (1988) 1 ACCR 109 at 111. The learned respondent?s counsel further submitted that the ‘appellant’s counsel who defended the appellant at the trial Court had every opportunity to cross examine those witnesses and tender those statements if he needed them to be tendered’, but he failed to do so.
Finally on this issue, the learned respondent’s counsel submitted, that ‘the crux of the matter is who killed the deceased and how it happened and not where the statement was obtained. The learned trial judge properly evaluated the entire evidence and came out with his verdict.’ She thereby urged this Court to resolve this issue in favour of the respondent.
The word ‘contradiction’ in the con of this case has been defined by Oxford Advanced Learner’s Dictionary, 7th Edition, International Student’s Edition to mean: ‘a lack of agreement of facts, opinions, actions, etc’. Also, the term ‘contradiction’ has also been defined by the Supreme Court in the case of Ogoala v. State (1991) 2 NWLR (Pt. 175) 509, in the following decisive and incisive manner.
The word ‘contradiction’ comes from two Latin words ; contra, which means opposite, and dicere, which means to say. So, in ordinary parlance to contradict is to speak or affirm the contrary. Hence in the law of evidence, 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, say, details between them.” Per NnaemekaAgu, JSC.
See also the cases of Okere v. State (2001) 2 NWLR (Pt. 697) 397; Eke v. State (2011) LPELR 1133; Wachukwu & Anor. V. Owunwanne & Anor. (2011) LPELR 3466; Ogidi v. State (2003) 9 NWLR (Pt. 824) 1. Ezenwankwo v. The State (2015) 2 NWLR (Pt. 1443) 265, Uche v. The State (2015) 11 NWLR (Pt. 1470) 380, Mathew v. Otabor (2015) 14 NWLR (Pt. 1479) 360 and Abiodun v. F. R. N. (2016) 15 NWLR (Pt. 1540) 63.
From the definition quoted above, it is thus explicable, that the term contradiction in its legal con generally means or denotes a situation where the material fact(s) or evidence of a witness contradicts itself with an earlier statement made or written by him; or where the statement or evidence of a party?s witness contradicts those of another witness(es) on behalf of the same party. To amount to contradiction, the main gist of the facts(s) must of necessity be opposite of themselves, and not the surrounding facts or circumstances.
In the instant case, the main considerations are:
i. Did the deceased die?
ii. Who killed him or how did he die?
iii. Was he lawfully or unlawfully killed?
In answering these questions, the respondent fielded the PW2 who gave evidence as an eye witness that the appellant had a scuffle with the deceased and as a result thereof, the appellant ‘carried the deceased and hit him on the ground. It was a stony ground. When the deceased was hit on the stony surface the deceased shouted’. She stated that the deceased as a result of being hit on the ground could not stand up again and was rushed to the hospital. It is also not in dispute in this case that the deceased died as a result of the spinal injury which he suffered due to the hit he had on the ground and as a result of this unfortunate incident.
These pieces of material facts were not in any credible way contradicted by any other piece or pieces of evidence adduced on record. The alleged contradictions the appellant’s counsel labouriously hammered upon are somewhat non-existent, especially with regard to the presence or otherwise of PW2 at the scene of the event. It is to be noted that PW4, Thomas Ibrahim Police Sergeant No. 175631, stated on record that this case was transferred to him for further investigation from Akuokwa Police post, where this case was originally reported.
He did not at anytime state that he was at the scene and witnessed the whole events as they unfolded. The fact that PW2 was not there when he went to the scene of the incident for investigation cannot be regarded as a conclusive fact that PW2 was not at the scene of the unfortunate incident as an eye witness nor suggest in any way that she was not an eye witness. There is no law or practice procedure that prevents an eye witness from leaving the scene of a crime or compels the said eye witness to remain rooted at the scene of a crime or commands the witness to remain stationary thereat. In fact, the normal situation in our country is that, eye witness to a criminal event or people staying close by, take to their heels in order to avoid being indiscriminately arrested, due to the normal unprofessional behaviour of our Nigeria Police. The fact that PW4 stated that none of the witnesses were around when he visited the scene of the event or crime does not in any way impugned the credibility or veracity of the evidence given by PW2.
Also, the appellant counsel’s contention that the evidence given by the respondent’s witnesses as to the circumstances of the appellant’s arrest are contradictory, does not detract nor affect the cogent nature of the evidence of PW2 or contradict the main facts of this case. Even the appellant while giving evidence in his defence, did not deny the fact that PW2 was within the vicinity of the scene of the event or crime, albeit he stated that she was inside when the event was unfolding.
Contrary to what the learned counsel for the appellant wants us to accept herein, there is no piece of evidence that in any way contradicted the material facts that established the elements of the offence with which the appellant was charged, found guilty and convicted.
With regard to the issue of withholding evidence, as the learned counsel for the respondent has rightly submitted, in our criminal jurisprudence, it is not compulsory for the prosecution to tender the statements made by its witnesses before it could be held to have proved its case as required by law. The extra-judicial statements of prosecution witness(es) are mainly used by the defence counsel to either contradict the witness called by the prosecution so as to impugn the credibility of such a witness, or to further establish a point or fact by either of the parties. Thus, non-production of the extra-judicial statements of the prosecution witnesses as done in this case is not fatal, and has no negative effect whatsoever on the respondent’s evidence.
What is paramount in a criminal trial, is the testimony of the witnesses in Court and fair opportunity given to the parties to present their cases. Any other additional evidence adduced by the prosecution (the respondent in the instant appeal) would be more of a surplusage and not of a necessity. See the case of Peter v. The State (2013) LPELR 20302 and the case of Zaman v. The State (2015) LPELR-24595 (CA), where this Court, per Tur, JCA, while relying on the case of Omisade v. Queen (1964) NMLR, 67 enunciated as follows:
”Extra-judicial confessions can serve as auxiliary evidence or corroboration of accomplice evidence and no more.”
In sum, I do not find any merit in the contention laboriously canvassed by the learned appellant’s counsel with regard to this issue and the same is hereby resolved against the appellant.
ISSUE No. 2.
The learned counsel for the appellant in arguing this issue, commenced with the submission, that the learned trial judge was wrong in law when he placed reliance on the alleged statement of the appellant to the police which was not formally placed before him as exhibit, in finding the appellant guilty of manslaughter. He argued that the learned trial judge placed heavy reliance on the appellant’s extra-judicial statement that was not formally tendered before him in discrediting the appellant’s evidence. The learned counsel for the appellant’s further argued, that before the appellant’s extra-judicial statement could be used against him, the statement is expected to be tendered either by the investigating Police Officers who took the statement or used in confronting the appellant in the course of cross-examination. He stated that, none of this procedure was undertaken, yet the learned trial judge still went ahead and placed reliance on the said statement in his finding that the appellant was guilty.
In addition, the learned counsel to the appellant submitted, that ‘facts contained in proof of evidence are not statement of witnesses gotten during investigation’.
He supported his submission with the case of Federal Republic of Nigeria v. Wabara & Ors. (2013) Vol. 219 LRCN (Pt. 1) 89. He continued and submitted, that ‘the learned trial judge’s reliance on a document not before her is a mere speculation and importation of evidence not given by parties for the purposes of judgment’.
He placed reliance on the cases of Uwagboe v. State (2010) Vol. 8 LRCN CC142 and Okoro v. The State (1964) 1 ALL NLR 423 @ 428. Thus, he contended that the reliance placed by the learned trial Judge on statements not tendered before him is more or less a denial of the appellant’s right of fair hearing, ‘as the appellant was not given the opportunity to see and identify if he made the statement’. He referred us to the case of Ekpenetu v. Ofegobi (2012) LPELR-9229. He urged this Court to resolve this issue in favour of the appellant.
In her reply, the learned counsel for the respondent submitted, that the learned trial Judge never relied on the statement of the appellant to convict the appellant for manslaughter. The learned trial judge relied on the totality of the evidence placed before him to come to a decision of what transpired. He continued/stated that, ”the fact that the learned trial Judge made reference to the said statement does not mean he relied on the statement to convict for manslaughter.”
The learned respondent’s counsel submitted in the alternative, that ‘assuming but not conceding that the trial Judge considered the document not tendered as Exhibits, it is trite that it is not every error or mistake on the part of a lower Court that will vitiate a judgment but only where such error or mistake is so fundamental as to occasion a miscarriage of justice’.
She supported her position with the case of Mufutau Aremu & Anor. V. The State (1991) 7 NWLR (Pt. 201) 1 @ 19. The learned counsel argued, that in the instant case, the Appellant has failed to show, that the said error of the lower Court led to the conviction of the appellant when the evidence on record does not warrant such verdict. She thereby urged us to resolve this issue in favour of the respondent.
The law is well settled, that no Court of law is empowered to make reference and or rely on any piece of evidence or document (as the case may be) which has not been properly and formally placed before it, in the course of reaching its decision in a case. See Goodnews Agbi & Anor. V. Chief Audu Ogeh & Ors. (2005) 8 NWLR (Pt. 926) 40 and Alhaji Chief Jibrim v. Izuagie v. Jimon Osuma Amuda & Anor. (2006) ALL FWLR (Pt. 294) 493. The only circumstance, whereby a Court is permitted to make reference or rely on evidence not tendered and formally admitted before it, is where the evidence or document falls under the categories of evidence or document that the Court is permitted to take judicial notice of, in accordance with the Evidence Act or permitted by any other law regulating the subject matter with which the evidence or document relates. See the case of Abdullahi & Anor. V. Sadauki & Ors. (2008) LPELR 3557.
In the instant case, I am unaware of any law that gives the lower Court or any Court for that matter, the leverage or liberty to make reference and or rely on document contained in the proof of evidence but were not tendered and duly admitted before it. In as much as the fact that the appellant?s extra-judicial statement was included in the proof of evidence, which was front loaded by the respondent before the lower Court unless and until the said statement is formally tendered in Court and admitted, it is not permissible for the learned trial judge to make reference to it and or rely on it in his judgment.
This is because Proof of Evidence (and all exhibits attached thereto) is not by itself constitute evidence with which the trial Court or any Court whatsoever, is entitled to rely in its judgment; unless and until the ‘evidence’ or ‘exhibit’ contained in the proof of evidence is tendered and duly admitted in evidence, it cannot be used in deciding a case. The fact that the ‘evidence’ or exhibit(s) has been frontloaded as proof of evidence or alongside with a criminal information file (as the case maybe), does not automatically qualify it as admissible and reliable evidence, the ‘evidence’ or exhibit(s) is merely frontloaded to inform an accused person(s) of the charge preferred against him and inform him in advance of the likely evidence that may be adduced against him, in line with the constitutional provision of Section 36 (6) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Thus, I do agree with the learned counsel for the appellant that the learned trial judge erred when he made reference and or relied on the extra-judicial statement of the accused that was not tendered and admitted in evidence. See the case of Odiaka v. The State (2013) LPELR-21977 (CA), where this Court, per Ogunwumiju, JCA, while deciding a similar matter held at pages 14 -16 as follows:
”Let me say right off that the proof of evidence is a document served on the defence and to the Court containing names of witnesses the prosecution want to call and a phrasy of what they intend to say. Every accused in a trial by information is entitled to the proof of evidence so that he can prepare a defence to the case the prosecution intends to make against him. It does not constitute evidence. The Court before whom it is filed cannot use any of its contents in aid of the prosecution or the defence. It is only evidence on oath given by a witness in open Court that is relevant and admissible in a criminal trial. Such evidence on oath may lay a foundation for the admission of relevant documents like extra-judicial statements, confessional statements, doctor’s report, extra-judicial witness’ statements, etc. Extra judicial witness statements can be found in the proof of evidence and the police case file. It is the duty of any party or counsel who wants to use the extra judicial statement of a witness to lay foundation through the witness to ensure that the said statement is admitted as an exhibit through the witness? it would have been, wrong in law or procedure for the learned trial judge to use any statement in the case file suo motu.”
See also the case of Federal Republic of Nigeria v. Wabara (2013) LPELR – 20083(SC).
However, the law is also trite, as the learned counsel for the respondent has submitted, that it is not every error or mistake committed by the lower Court that would automatically vitiates its entire proceedings or render its judgment a nullity. An appellate Court is enjoined to tarry or be wary in rushing to set aside the decision of a lower Court that made a mistake of law and or fact, for such error on the part of the lower Court to be sufficient to vitiate the entire proceedings of the lower Court or render its judgment a nullity, the mistake or error must have been shown to have occasioned to the complainant (in most cases the appellant) miscarriage of justice or dwells on substantial issue of jurisdiction.
This is because an appellate Court is more interested in the merit of the decision arrived at by the lower Court and to ensure that the decision is supported by credible evidence duly tendered and admitted on record. The decision of the lower Court would still be sustained by an appellate Court, notwithstanding, the fact that the premise upon which the decision was reached was wrong, provided the decision itself is right. See the cases of Adomba v. Odiese (1990) NWLR (Pt. 125) 165; Contract Resources (Nig.) Ltd. & Anor. V. United Bank for Africa Plc. (2011) LPELR ? 8137 and Umesie v. Onuaguluchi (1995) 9 NWLR (Pt. 421) 515.
In the instant case, the learned trial judge before wrongly relying and or making reference to the appellant’s extra-judicial statement that was not tendered, had extensively evaluated all the pieces of evidence adduced on record, particularly the evidence of PW2 who was an eye witness to the incident which led to the scuffle between the appellant and the deceased who was assaulted. The findings of the lower Court in these connection were not challenged before this Court, except in respect of issue one where the appellant’s counsel argued that the said PW2’s evidence was contradictory to the testimonies of PW4 and PW5.
Even at that, I have earlier found in this judgment that there is no such contradiction and the same was resolved against the appellant, and I have no reason to change my standpoint at this stage. The summary of it all, is that all the material findings which linked the appellant with the commission of the offence are sustained and or confirmed, thus, the perceived error of the lower Court in making reference to the appellant’s extra-judicial statement that was not tendered and admitted before him, had no damaging or devastating effect on the lower Court’s judgment. Thus, the error or mistake or devastating is not material enough to galvanize this Court to dramatically overturn the decision of the lower Court in this case. Thus, this issue is also resolved against the appellant.
ISSUE NO. 3.
The learned counsel for the appellant contended as it pertained to this issue, that the learned trial judge erred and breached the appellant’s right to fair hearing when he found him guilty and convicted him for manslaughter without affording the appellant the opportunity to defend himself. He argued that Section 179 of the Criminal Procedure Act, relied upon by the learned trial judge when he convicted the appellant for a lesser offence from the one he was charged with is inconsistent to Section 36 (6) (a), (b) & (c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
The learned counsel for the appellant then argued, that the learned trial judge having found that the appellant was not guilty of murder, he is expected to acquit and discharge the appellant and not to convict him for an entirely different offence with which he was not charged. He then submitted that the learned trial judge by so doing has breached the appellant?s right to fair hearing. He supported his submission with the case of Adu v. Federal Republic of Nigeria (2013) Vol. 219 LRCN (Pt. 2) 238 and Uchechukwu v. Bielonwu (2009) ALL FWLR (Pt. 458) 271, among others.
The learned appellant’s counsel thereby urged this Court to resolve this issue in favour of the appellant.
In her reply with regard to this issue, the learned counsel for the respondent submitted that ?the Court can convict for a lesser offence other than that charged, provided that the definition of the greater offence necessarily included the definition of the lesser offence. On a charge of murder it was held that there is power to convict for manslaughter.
She called in aid, the decided case of TsohoGubba v. Gwandu N. A. (1947) 12 WACA 14. The learned counsel for the respondent also maintained, that the offence of manslaughter in respect of which the appellant was convicted, had all the ingredients of murder with which he was charged except that in the case of manslaughter, the intention to kill is not an element therein, whereas in murder, it is an essential element. It was then submitted, that the respondent ‘proved the case against the Appellant and Appellant should not complain even when he was convicted for a lesser offence’.
She also submitted that the learned trial judge in convicting the appellant for a lesser offence did not breach his right to fair hearing. She placed reliance an the decision in the cases of Egbirika v. The State (2014) Vol. 27 LRCN 1 and Nwachukwu v. The State (2009) 7 ACLR 405. Thus, she urged us to also resolve this issue in favour of the respondent.
A trial Court and indeed an appellate Court has the inherent and statutory jurisdiction to convict and sentence an accused person for a lesser offence other than the one with which the accused person was originally charged. The conviction of such an accused person in this regard will not be regarded as a violation of the accused person’s right to fair hearing as guaranteed by the provision of Section 36 (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The power of Courts to act in this regard has also been codified and specified in the provision of Section 179 of the Criminal Procedure Act, 1945. For ease of reference, I seek the indulgence of your Lordships to reproduce the provision of the said Section and the same is reproduced below as follows: Section 179 (1) & (2).
1. In addition to the provisions herein before specifically made, whenever a person is charged with an offence consisting of several particulars, a combination of same only of which constitutes a complete lesser offence in itself and such combination is proved but the remaining particulars are not proved, he may be convicted of such lesser offence or may plead guilty thereto although he was not charged with it.
2. When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it.”
However, for a Court to be able to invoke its power and or jurisdiction as stated in the above quoted provisions of the law, the following elements must be established:
1. The offence the accused person was originally charged with and the one he was convicted for, must share the same ingredients or almost the same elements.
2. The facts of the case and evidence adduced by the prosecution must be insufficient or inadequate to convict the accused person on the original offence or charge, but was sufficient in respect of the lesser offence.
See the cases of Adeyemi v. State (1991) 6 NWLR (Pt. 195) 1; Odeh v. Federal Republic of Nigeria (2008) 13 NWLR (Pt. 1103) 1 and The Nigerian Air Force v. Kamaldeen (2007) 7 NWLR (Pt. 1032) 164.
In the instant case, the appellant was originally charged for murder but he was convicted for manslaughter.
To successfully establish a charge of murder against an accused person, the prosecution is required to establish the following ingredients, conjunctively:
i. The deceased died,
ii. The death of the deceased was a result of the act of the accused person, and
iii. The said 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.
See the cases of Ogunniyi v. The State(2012) LPELR 8567; Adava v. The State (2006) 9 NWLR (Pt. 984) 152 and Sani v. The State (2013) LPELR 20382.
With regard to manslaughter, the above ingredients of murder are also included, but with slight modification in respect of the third ingredient wherein the act or omission that caused the deceased’s death was done:
i. Accidentally;
ii. In the heat of passion caused due to provocation; or
iii. Where there is complete lack of intention.
The learned trial judge in the instant case, found that the act of the appellant which occasioned the deceased’s death was done without the intention to cause death and or accidentally. Consequently, he found the appellant guilty of manslaughter as distinct from murder with which he was charged. This findings of the lower Court is unassailable and based on credible and admissible evidence on record. It is also instructively significant to note, that the findings of the learned trial judge in this regard has not by any means been discredited in this appeal and I am but bound to align myself with it. In summary, I am of the firm viewpoint, that the lower Court (including this Court) has the inherent and statutory power and or jurisdiction to convict an accused person for a lesser offence different from the one with which he was originally charged. Such a course of action is in line with the laid down procedure specified in this judgment.
And in the instant case, the learned trial judge acted rightly when he convicted and sentenced the appellant for manslaughter instead of murder, which was the offence with which he was originally charged. Thus, this issue is also resolved against the appellant.
Having resolved the issues adopted for resolution in the determination of this appeal in the manner stated above, this appeal is found by me to be devoid of any merit and it is accordingly dismissed. The judgment of the lower Court wherein the learned trial judge in Suit No. HOR/18C/2013 found the appellant guilty of manslaughter and sentenced him to life imprisonment, is affirmed and or confirmed by me.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree
TUNDE OYEBANJI AWOTOYE, J.C.A.: I agree
Appearances:
B.U. Nwanegbo, Esq.For Appellant(s)
Mrs. K. A. Leweanya Asst. Chief Stated Counsel, Ministry of Justice, Imo State with him, Miss Uche S. Chukwu, State Counsel, MOJ., Imo State.For Respondent(s)
