ANSELEM AGU V. THE STATE
(2012)LCN/5650(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of November, 2012
CA/PH/57/2005
RATIO
CRIMINAL LAW AND PROCEDURE: WHEN AN IMPORTANT ISSUE IN A CASE CAN LEAD TO THE DETERMINATION OF THAT CASE, THE PROSECUTION MUST CALL THE WITNESS WHOSE TESTIMONY WILL LEAD TO THE CONCLUSION OF THAT MATTER
“In Opayemi’s case, the Supreme Court held that if there is an important issue in a case the determination of which will settle the case one way or another as in Essien’s case (R. V. Essien 4 WACA 12), it will be necessary for the prosecution to call the witness whose testimony will lead to that conclusion. That since the accused person’s statement mentioning Ademola as having caused the injury was put in evidence by the prosecution, and which, if true would have exonerated the accused, then if the prosecution’s case was to be proved beyond reasonable doubt it became incumbent on the prosecution to call Ademola to deny the allegation made by the accused against him. Now there are three distinguishing factors which would not make the decision in Opayemi’s case relevant here. First, the Appellant here unlike the Opayemi’s case was seen at the scene of crime. Second, he made Exhibit ‘B’, but denied making it and resiled from it. Third, his viva voce evidence set up a defence of alibi and therefore totally contradicted Exhibit ‘B’. For these reasons, Issue No. 1 is resolved against the Appellant.” Per OWOADE, J.C.A.
EVIDENCE: WHETHER RELATIVES OF VICTIMS OF OFFENCES ARE COMPETENT WITNESSES FOR THE PROSECUTION’S CASE
“With respect to the evidence of relatives of victims of offences, the law is that such relatives are competent prosecution witnesses especially when they are either eye witnesses to or co-victims of the crime. Similarly, relations of the accused are competent witnesses for the prosecution and the defence. Ekpo vs. The State (1976) 5 SC P. 29, Oguonzee vs. The State (1998) 8 NWLR (Pt. 551) P. 521 at 558, Ahmed vs. The State (1998) 5 NWLR (Pt. 550) 497 at 510, Hausa vs. The State (1994) 6 NWLR (Pt. 350) P. 281 at 308, Onafowokan vs. The State (1986) 2 NWLR (Pt. 230) P. 496.” Per OWOADE, J.C.A.
EVIDENCE: WITNESSES: HOW MANY WITNESSES IS THE PROSECUTION REQUIRED TO CALL TO PROVE ITS CASE
“In fact, as a general rule there are no number of witnesses or eye witnesses that are specifically required to prove a case, even as in the instant case, the offence of murder. A person may be convicted for the offence of murder with the credible testimony of a single eye witness. This position of the law tallies with the provision of Section 200 of the Evidence Act which says: “Except as provided in sections 201 to 204 of this act, no particular number of witnesses shall, in any case be required for the proof of any fact.” In the instant case, contrary to the suggestion of the learned counsel for the appellant, the totality of the evidence of PW4 does not in any way derogate from the eye witness account of the brutal matcheting of the deceased by the Appellant.” Per OWOADE, J.C.A.
JUSTICES:
UWANI M. ABBA AJI Justice of The Court of Appeal of Nigeria
MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria
HARUNA S. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
ANSELEM AGU – Appellant(s)
AND
THE STATE – Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A.: (Delivering the Leading Judgment):This is an appeal against the judgment of P.O. Onumajulu J- of the High Court of Imo State sitting at Mbaitoli/Ikeduru delivered on 26/7/99 wherein he found the accused appellant guilty of the offence of murder contrary to Section 319(1) of the Criminal Code and accordingly sentenced him to death.
The facts of the case are as follows. On the 2/5/92, PW3, the daughter of the deceased was returning from the stream where she had gone to fetch water. Her bicycle broke down on the way and had to drag the bicycle home. Later in the day between 4.pm and 5.pm, she took the bicycle to a bicycle repairer one Fabian Ugwushie to effect repairs. While she was with the repairer, she heard the deceased calling on her. On her way back to answer the call, she met the deceased on the way who asked her to go home to cook. As she (PW3) moved to go to inform the repairer to continue with the repair work, she saw the accused emerged from a track with a matchet. The accused cut the deceased on the neck with the matchet. The deceased took to her heals and was yelling but the accused ran after her and continued to give her matchet cuts all over her body. PW3 was shouting following closely. The accused chased the deceased into the compound of one George Opara where he continued to cut her, and left her in a pool of blood.
The incident attracted a number of people including PW1, and PW4, who saw accused dashing out of the compound with a matchet, and PW5 who reported the matter to the police.
The statement of the accused person was admitted as exhibit “B”. At the close of the case for the prosecution, counsel for the accused person stated that he was not calling any evidence but was relying on the case presented by the prosecution. He therefore also closed the case for the defence. The matter was then adjourned for address.
Later, however, and before the addresses were rendered, the defence changed its mind and decided to lead evidence in defence. It applied to re-open the case and the application was granted. The accused, who then testified as DW1, denied the charge, denied knowing the deceased, denied murdering the deceased and denied making the statement, Exhibit B, credited to him.
On these facts, the learned trial Judge in a considered judgment convicted the accused as charged and sentenced him to death.
By the order of this Honourable Court, the Accused/Appellant filed a Notice of Appeal containing four (4) grounds of appeal before this court on 17/10/2005. Appellant’s brief of argument was also filed on 17/10/2005. Respondent’s brief of argument dated 26/4/10 was filed on 11/10/2012.
Learned counsel for the Appellant nominated two(2) issues for determination:
“1. Whether in the light of the failure of the police and the High Court to investigate the defence of the Appellant, the case for the prosecution can be held to be proved beyond reasonable doubt to support a verdict of guilt entered against the Appellant for murder contrary to Section 319 of the Criminal Code, Laws of Eastern Nigeria 1963 applicable to Imo State.
2. Whether the learned trial Judge properly evaluated the evidence before him.
Learned counsel for the Respondent formulated three (3) issues for determination as follows:
“1. Whether the prosecution did not prove its case beyond all reasonable doubt against the Appellant.
2. Whether the learned trial Judge did not consider all the defences available to the Appellant.
3. Whether the mere fact that PW3 was the daughter of the deceased and other prosecution witnesses were related to her for that matter renders their evidence inadmissible.
On Issue No. 1, learned counsel for the Appellant submitted that the case of the Appellant is that there has been a pre-existing animosity that has defined his relationship with deceased family, which animosity supports a version of attack and assault with intent to cause bodily harm and or death. That from Exhibit B, the Appellant’s case is that on the day of the incident he was attacked by the deceased, Okeuchi, Clifford Ejioba, Robert Opara and Chinasa Opara.
That, none of these persons were investigated by the police to determine the veracity of the Appellants allegation which if it was investigated and found as true would have found a defence of self defence in favour of the Appellant.
Counsel submitted that the police and the Honourable Court have a duty to investigate the defence of the Appellant no matter how improbable or trivial particularly in a case as serious as a murder charge.
He submitted that the duty to investigate the Appellant’s case as canvassed in Exhibit “B” made at the earliest opportunity, demanded the ascertainment of the existence and acts of the person mentioned by the Appellant in his statement to the police.
Counsel submitted that even though the prosecution has a latitude to call any number of witnesses in proof of its case, but where the proof of its case will be impaired unless a particular witness or witnesses are called, then non calling of the said witness or witnesses will be fatal to the prosecution’s case.
That, in the instant case, the non-calling of the persons named by the Appellant in Exhibit ‘B’ who attacked him with stick and knife to wit: (a) Okeuchi (b) Cliffor Ejioba (c) Robert Opara and (d) Chinasa Opara who was armed with a knife with intent to stab the Appellant, to give evidence to disprove the allegation, knocks of the bottom of the prosecution’s case, leaving the case to be the word of PW3 for the word of the Appellant and resulting in doubt which will be resolved in favour of the Appellant.
On this, learned counsel for the Appellant referred to the case of Opayemi vs. State (1985) 6 SC 347.
Counsel submitted that the duty of the prosecution and the court to investigate the Appellant’s defence does not shift, it is immaterial that the accused did not adopt the statement at trial or has given a different version in his evidence in court, the duty to investigate the defence remains fixed.
After referring to the cases of Rex vs. Yaw Barimah II WACA 49, Opavemi vs. State (supra) and the case of Olahunde vs. Adeyoju (2000) 10 NWLR. Counsel submitted that in the instant case, the prosecution has failed to prove it’s case beyond reasonable doubt on account of failure to investigate the Appellant’s allegation in Exhibit ‘B’ which was part of the prosecution’s case. The Appellant entering into his own defence, said counsel, was unnecessary because taking the prosecution’s case as it is, it has failed to discharge the standard of proof beyond reasonable doubt.
In response to Appellant’s Issue No. 1, learned counsel to the Respondent submitted that the learned trial Judge considered the defence of alibi and self defence put up by Appellant, evaluated them and rejected them all.
Respondent’s counsel referred to the ingredients of the offence of murder and submitted that the prosecution has proved all the ingredients beyond reasonable doubt.
In particular, Respondent’s counsel referred to the cases of Bakare vs. State (1987) 1 NWLR (Pt. 52) 579 and Buje vs. The State (1991) 4 NWLR (Pt. 185) 287 at 300 and submitted that the intent to kill or to cause grievous harm can be inferred from (a) the type of weapon used (b) the nature of wound inflicted on deceased (c) the part of the body where the wound was inflicted. That, from the evidence of the PW3 an eye witness account, Appellant cut deceased on the neck and gave her several matchet cuts on other parts of the body. That, in the opinion of PW6, Dr. Innocent Njemanze the medical doctor who performed an autopsy on the body of the deceased, there was amongst others a deep laceration wound cutting across the back of the root of the neck, severing muscles, blood vessels and nerves, leaving only the skin holding the neck anteriorly. Such laceration would have been inflicted by a sharp object, such as a matchet.
Learned counsel for the Respondent referred to the cases of Ndike vs. State (1994) 8 NWLR (Pt. 360) p. 33 Ehot vs. State (1993) 4 NWLR (Pt. 290) p.663, Abokokuyanro vs. State (2012) 2 NWLR (Pt. 1285) 530 at 562 and Musa vs. State (2012) 3 NWLR (Pt. 1286) 59 at 92 – 94 all to explain the nature of proof beyond reasonable doubt which the courts have held not to mean proof beyond the shadow of doubt. That, having proved the ingredients of offence of murder, once the trial court is satisfied beyond reasonable doubt that on the evidence offered by the prosecution, the accused and no one else committed the offence charged, the court is entitled to enter a finding of guilt. This, he said is especially so where the prosecution’s evidence emanated from eye witness whose evidence was believed and whose credibility was not impugned successfully. Ehot vs. State (supra) P. 663.
In deciding Appellant’s Issue No. 1, it is rather strange that the learned counsel for the appellant would suggest that by the failure of the police and the High Court to investigate the Appellant’s allegation contained in Exhibit ‘B’, the prosecution could not be held to have discharged the burden of proof in this case.
1. Exhibit ‘B’ is a confessional statement by the Appellant soon after his arrest by the police and was tendered through the IPO, PW7
2. Exhibit ‘B’ was admitted in evidence in spite of the fact that the Appellant denied making it and resiled from the statement.
3. The conviction of the appellant by the trial court was not based on Exhibit ‘B’ but on the evidence of eye witness(es) particularly PW3 who witnessed the entire incident of matchet cuts being inflicted on the deceased by the Appellant.
4. It was in exhibit ‘B’ that the Appellant raised the possibility of a defence of self defence/provocation, in that he (the Appellant) therein alleged that (a) Okeuchi (b) Clifford Ejiogu (c) Robert Opara and (d) Chinasa Opara who was armed with a knife stabbed him.
5. Ever before Exhibit ‘B’ was tendered and admitted through PW7, the cross examination of the eye witness PW3 had taken place.
6. From, the cross-examination of PW3, the learned trial Judge was satisfied that Robert Opara, Clifford Ejiogu and Chinasa Opara were not at all present at the scene of the crime on the day of the incident.
7. In his evidence in court, the Appellant denied and resiled from Exhibit ‘B’ and put on a defence of alibi.
In the first place the defence of self-defence and alibi are contradictory and inconsistent. An accused person who pleaded self defence and alibi at the same time cannot be taken seriously. This is because one cannot claim not to be at the scene of crime and at the same time claim that he was there but acted in defence of self.
The learned trial Judge in the instant case took this into consideration in rejecting the testimony of the accused as unreliable.
At pages 87 – 88 of the record, the learned trial Judge observed thus:
“PW3 gave a positive consistent and harmonious evidence of the acts of the accused leading up to the death of the deceased. On his part the accused denied the charge: knowledge of the deceased and the acts credited to him by PW3. But the evidence of the accused on oath in the witness box is completely at variance with his statement to the police, Exhibit ‘B’. The law is that where an accused person makes a statement to the police which is inconsistent with his testimony in court, such testimony is to be treated as unreliable, while the statement is not to be regarded as evidence upon which a court can act. There’s no probative value in either the testimony or the statement.
See Uwani vs. State (1988) 1 NWLR (Pt. 70) 274 at 283 Oladejo vs. State (1987) 3 NWLR (Pt.61) 364 at 427, Mbeno vs. State (1988) 3 NWLR (Pt. 84) 615 at 127. So neither the statement of the accused to the police in Exhibit B nor his testimony in court is reliable.”
The above exposition of the inconsistency rule by the learned trial Judge may be incomplete in the circumstances of the case but his finding of the unreliability of the accused testimony in court remains valid because of the legal truism that a plea of alibi is contradictory and inconsistent with a plea of self – defence.
The inconsistency rule, is that where an accused viva voce evidence at the trial court and his extra-judicial statement are contradictory or inconsistent, the trial court should disregard or reject both as unreliable and rely only on the evidence of the prosecution. However, the rule does not apply to confessional statements made by accused persons. It only applies to other extra-judicial statements of witnesses outside of confessional statements. Habibu Musa vs. The State (2012) 3 NWLR (Pt. 1286) 59 at 96 – 98.
In-spite of the above observation on the general inconsistency in raising a plea of alibi and self defence by the Accused/Appellant in this case, the learned trial Judge still went ahead not only to consider the plea of alibi but also the defence of self raised by the Appellant. At pages 89 – 90, the learned trial Judge had this to say:
“…This defence of alibi that he went to the market on the date of the incident was raised for the first time in the witness box in court it was not ever contained in Exhibit ‘B’ which he resiled from but which I held was made by him. There was no evidence from him that he told the police that he went to the market that day. Besides, he neither stated the name and location of the market he went to nor the time he went to it.”
He continued:
“The best defence and evidence of alibi is one pleaded at the first opportunity, (usually to the police when making a statement) and not at the time of trial. See Ukwu Nnenyi vs. State (supra). Besides, it is not a proper way of raising a defence of alibi for an accused to merely show that he was elsewhere at a time antecedent to the time the crime was proved to have been committed. He must also show that because he was at that time, it was impossible for him to have been at the scene of the crime when it was shown to have been committed. Moreover, where a plea of alibi was never raised to the police, there is no duty on the police or prosecutor to investigate the plea. See Ogoala vs. State (199 1) 2 NWLR (Pt. 175) 509 at 530.”
And, finally on the Issue of alibi and this time emphasizing the contradictions inherent in between the plea of self defence and alibi, the learned trial Judge concluded thus:
“In the instant case not only was the defence of alibi not raised before the police with sufficient particulars, even the casual and unsubstantiated manner in which it appeared to have been raised contained no details that will lend it to belief. Besides, the suggestion made to PW3 in cross-examination that the accused inflicted the matchet cuts on the accused in self defence completely destroys that of alibi even if it were to exist (which it does not).”
Undoubtedly, if properly raised, the law is well settled that the defence of alibi must be investigated by the police and for the prosecution to disprove it.
Salami vs. The State (1988) 7 SC (Pt. 11) 89, (1988) 3 NWLR (Pt.85) 670, Nwabueze vs. The State (1989) 4 NWRL (Pt. 86) 16, Okoduwa vs. The State (1988) 2 AWLR (Pt. 76) 333 and Ozaki vs. The State (1990) 1 NWLR (Pt. 124) 92.
However, in a situation as the instant case where the appellant was identified by an eye witness there was a straight issue of credibility to wit: Whether the evidence of the witnesses is believed and if believed, the alibi raised is logically demolished. Hemyo Ntam & Anor vs. The State (1968) NMLR 86 at 87 Micheal Hausa vs. The State (1994) 6 NWLR (Pt. 350) 281, Partrick Njovens vs. The State (1973) 5 SC 17.
The learned trial Judge also considered the defences of self-defence and provocation and found that they were not available to the appellant. At page 92 of the record, he said:
“I find that at the time of the attack on the deceased there was neither any provocation offered to the accused by the deceased or any member of her family nor was there any threat or reasonable apprehension of death or grievous bodily harm to the accused to justify the savage attack that ended the life of the deceased. See Nwuzoke vs. State (1988) 1 NWLR (Pt. 72) 529. I therefore find no merit whatsoever in the defence of self-defence and provocation raised by the defence. Besides, the abandonment of such defence by the accused in the witness box is inconsistent with them completely knocks off the bottom of those defences. See Uwani vs. State. (supra) at 283”.
At this juncture, perhaps for whatever it is worth it is appropriate to refer to the reliance on the case of Opayemi vs. The State (1985) 6 SC P. 347, (1985) 2 N.S.C.C. 921 by the learned counsel for the Appellant for the proposition that failure of the prosecution to investigate the names mentioned by the Appellant in Exhibit B constitutes a failure by the prosecution to prove its case beyond reasonable doubt. This is not so.
One important difference between the instant case and the case of Opayemi vs. State (supra) is that here there was an eye witness account but in the case of Opayemi vs. State (supra) the Appellant was not identified at the scene of crime.
The Appellant in Opayemi’s case was tried and convicted of wounding with intent contrary to Section 272(1) of the Criminal Code of Western Nigeria Cap. 28 by the High Court of Ogun State sitting at Sagamu. The ceremony which led to the incident in Opayemi’s case took place at the Ilishan market square whereby a commotion broke out between two rival groups of masquerades followers. The Accused/Appellant who was not identified at the scene mentioned that it was one Ademola that inflicted injury on the complainant.
In these circumstances, a unanimous Supreme Court consisting of Bello, Obaseki, Nnamani, Uwais and Kawu J.J.S.C. supported the leading judgment of Uwais JSC to allow the Appellant’s appeal, set aside the judgment of the Court of Appeal and discharged and acquitted the Appellant.
In Opayemi’s case, the Supreme Court held that if there is an important issue in a case the determination of which will settle the case one way or another as in Essien’s case (R. V. Essien 4 WACA 12), it will be necessary for the prosecution to call the witness whose testimony will lead to that conclusion. That since the accused person’s statement mentioning Ademola as having caused the injury was put in evidence by the prosecution, and which, if true would have exonerated the accused, then if the prosecution’s case was to be proved beyond reasonable doubt it became incumbent on the prosecution to call Ademola to deny the allegation made by the accused against him.
Now there are three distinguishing factors which would not make the decision in Opayemi’s case relevant here.
First, the Appellant here unlike the Opayemi’s case was seen at the scene of crime.
Second, he made Exhibit ‘B’, but denied making it and resiled from it.
Third, his viva voce evidence set up a defence of alibi and therefore totally contradicted Exhibit ‘B’.
For these reasons, Issue No. 1 is resolved against the Appellant.
On Issue No. 2, learned counsel for the Appellant submitted that a look at the finding of the court that the Appellant did not deny the striking of the deceased cannot be a proper evaluation of evidence especially having regard to the defence of the Appellant which touches on self-defence. That, it is the law, that where self defence is pleaded and proved, the fact that the act is committed is of no moment, as the defence absolves the Appellant of the guilt. Counsel referred to the case of Akintola vs. Balogun 1 NWLR (Pt. 642) P.532 and said that a finding which overlooks the law or appears not be supported by law is a perverse finding which exposes itself to appellate attack and will be set aside.
Allied to the above point, said counsel is the fact of the learned trial Judge’s acceptance of the Ipse dixit of PW3 that Chinasa Opara was not around. That, an allegation by the Appellant of the said Chinasa Opara’s involvement in attacking him, is an allegation that is grave but was not investigated by the police and court, yet the learned trial Judge believed the Ipse dixit of PW3 that Chinasa Opara was not around at the time of the incident.
Counsel submitted that the unverified person of PW3 which did not undergo the crucible of investigation by the police and the court should not have been preferred. He submitted that the situation was that of the word of the Appellant for the word of PW3 which in the circumstance of the doubt presented should have been resolved in favour of the Appellant. He referred to the cases of State vs. Ajie (2000) 11 NWLR (Pt. 678) P.415 and State vs. Opayemi (supra) Appellant’s counsel submitted that the evidence of PW3 which was the solitary evidence of a purported eye witness suffered a set back as a result of the repudiation and non admission of same by the Appellant and also by the fact that her evidence is the evidence of a blood relation of the deceased demanded that the learned trial Judge evaluated the evidence of PW3 with a tooth comb, as the evidence of PW3 was tainted by the existing animosity of her family against the appellant.
Counsel opined that it is unusual that PW3 would be the only eye witness of an event that took place at about 5 pm, when visibility is clear. That, her testimony should have been taken with a pinch of the salt. He submitted that his above view is further supported by the instance of the testimony of the pw4 who testified to the effect that he does not know who owned the knife held by the Appellant when he saw him and he does not know whether the Appellant acted in self defence.
Counsel submitted that the learned trial Judge failed to consider the implication of the doubt cast on the case of the prosecution by the testimony of PW4 when related to the testimony of PW3 which doubt should have been resolved in favour of the appellant particularly against backdrop of Exhibit “B”.
In response to Appellant’s Issue No. 2, learned counsel to the Respondent urged us to hold that the learned trial Judge did consider all the defences available to the Appellant before finding him guilty. He conceded that a court is always enjoined to consider every defence open to an accused person no matter how stupid but added, that while doing that however, the same trial court have been enjoined not to gloss over direct and positive evidence of the prosecution witnesses. He referred to the case of Ndukwe vs. The State 37 NSCQ 425 at 494 – 495.
Learned counsel for the Respondent further submitted that PW3 is a competent witness and the mere fact that the PW3 and other prosecution witnesses were related to the deceased did not render their evidence inadmissible.
Appellant’s Issue No. 2 boils down to these: First that the learned trial Judge would not have convicted on the evidence of PW3 as the evidence of an only eye witness. Second, that PW3 is the daughter of the deceased and her evidence is thereby tainted.
With due respect to the learned counsel for the Appellant, none of the above suggestions is true in law. In fact, as a general rule there are no number of witnesses or eye witnesses that are specifically required to prove a case, even as in the instant case, the offence of murder. A person may be convicted for the offence of murder with the credible testimony of a single eye witness. This position of the law tallies with the provision of Section 200 of the Evidence Act which says:
“Except as provided in sections 201 to 204 of this act, no particular number of witnesses shall, in any case be required for the proof of any fact.”
In the instant case, contrary to the suggestion of the learned counsel for the appellant, the totality of the evidence of PW4 does not in any way derogate from the eye witness account of the brutal matcheting of the deceased by the Appellant.
With respect to the evidence of relatives of victims of offences, the law is that such relatives are competent prosecution witnesses especially when they are either eye witnesses to or co-victims of the crime. Similarly, relations of the accused are competent witnesses for the prosecution and the defence.
Ekpo vs. The State (1976) 5 SC P. 29, Oguonzee vs. The State (1998) 8 NWLR (Pt. 551) P. 521 at 558, Ahmed vs. The State (1998) 5 NWLR (Pt. 550) 497 at 510, Hausa vs. The State (1994) 6 NWLR (Pt. 350) P. 281 at 308, Onafowokan vs. The State (1986) 2 NWLR (Pt. 230) P. 496.
The learned trial Judge was quite conversant with the above position of the law. Thus at pages 88 – 89 of the record he tellingly observed as follows:
“I am however mindful of the fact that PW3 was the daughter of the deceased and that some of the other witnesses for the prosecution were stated to be related to the deceased and therefore likely to have a purpose of their own to serve.
Learned counsel for the defence, Mr. Nwigwe, pointed out this fact in his address. As a matter of prudence, and not law, I realize that I ought to treat their evidence with considerable caution Mbonu vs. State, supra at 626, Adekunle vs. State (1989) 5 NWLR (Pt. 123) 505 at 514 but even at that there is sufficient corroborative evidence which sustains the evidence of PW3 and such other witnesses”
He continued:
“There is for example the evidence of PW4 who while admitting in cross-examination that the husband of the deceased was his cousin also stated not only that the accused is his relation but also that he lives in the same compound with the accused. The evidence of this witness that he saw the accused dashing out through the gate of the compound of George Opara with a matchet (which I believe) and the evidence from him and other witnesses that the deceased was seen in the pool of blood dead in the compound collaborates the evidence of PW3 that the accused dealt mortal matchet cut on the deceased as he pursued her into that compound where he finally hacked her down dead. The evidence of PW7 that he saw 13 matchet cuts on the body of the deceased also collaborates the evidence.”
The learned trial Judge concluded that portion of the summation of evidence as follows:
“Added to this is also the evidence of PW6 which described in great details the nature, extent, and type of the injuries he found on the body of the deceased and which is collaborative of the evidence of PW3. Above all, the nature and pattern of cross-examination of PW3 which put across to her the case that the accused gave the matchet cuts in self defence is not only collaborative but also lays the question of collaboration to rest”
Clearly, corroboration may come from the testimony of another witness or from some other independent fact of the case or the conduct of the accused including a confession of the offence by him. See Habibu Musa vs. The State (2012) 3 NWLR (Pt. 1286) 59 at 91.
Issue No. 2 is resolved against the Appellant.
Having resolved the two (2) Issues in this appeal against the Appellant, the appeal lacks merit and it is accordingly dismissed.
The conviction and sentence of the Appellant as contained in the judgment of P.O. Onumajulu J. delivered on 26/7/99 in charge No. HMI/51C/95 (HOW/8C/93) is accordingly affirmed.
UWANI MUSA ABBA AJI, J.C.A. (PRESIDING): I have had a preview of the judgment of my learned brother M. A. Owoade, JCA just delivered.
My learned brother considered the two issues formulated by the Appellant for the determination of the appeal and came to the conclusion that the appeal is devoid of any merit. I entirely agree with his reasoning and conclusion which I also adopt as mine.
I also dismiss the appeal and affirm the conviction and sentence of the Appellant as contained in the judgment of the Lower Court.
HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, M. A. Owoade; JCA obliged me a copy of the judgment he has just delivered. I was therefore able to read same before now.
My learned brother adequately summed up and considered all the issues that arose for determination in this appeal. The facts of the case are very clear and straight forward and leaves no doubt that the Appellant was rightly convicted of the murder of the deceased in this case. The defences put by him at the trial are not only contradictory but untenable. I therefore agree with the reasoning and conclusion arrived at by my learned brother. Accordingly, I too, dismiss the appeal and affirm the conviction and sentence passed by the trial court.
Appearances
Chief Henry Akunebu, Esq; with C.V.C. Ihekweazu, Esq; For Appellant
AND
S.A. Njoku, Esq; (HAG) Imo State with C. N. Akowundu, Esq; DPP For Respondent
