AUGUSTINE IDUNG v. THE STATE (2014)

AUGUSTINE IDUNG v. THE STATE

(2014)LCN/7377(CA)

In The Court of Appeal of Nigeria

On Thursday, the 10th day of July, 2014

CA/C/214/2013

RATIO

EVIDENCE: PROOF BEYOND REASONABLE DOUBT; WHETHER PROOF BEYOND REASONABLE DOUBT DOES NOT MEAN PROOF BEYOND ALL SHADOW OF DOUBT

In determining this issue, it is expedient to know that the term “reasonable doubt” has no precise definition but a very clear guide was provided by Denning J. (as he then was) in Miller v Minister of Pensions (1947) 2 ALL ER 372, where His Lordship held a proof beyond reasonable doubt need not preach certainty, but it must carry a high degree of probability, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. Also in Abeke v State (2007) ALL FWLR (Pt. 366) 644, the Supreme Court held:
“Reasonable doubt is founded in reason which is rational, devoid of sentiment, speculation or parochialism the doubt should be real and not imaginative. The evidential burden is satisfied if a reasonable man is of the view that for the totalities of the evidence before the court, the accused person committed the offence. The proof is not beyond all shadow of doubt- here and there but when the pendulum tilt towards and in favour of the accused person committed the offence, a court of law is entitled to convict even though there are shadow of doubt here and there.” per. DALHATU ADAMU, J.C.A.

CRIMINAL LAW: THE OFFENCE OF MURDER; THE INGREDIENT OF THE CHARGE FOR MURDER

I am comfortable with the dicta of His Lordship, Tobi, JSC, above. From the above dicta it is clear that the standard required by law is that the prosecution must ensure that material ingredient of the offence is proved, for example, in the charge for murder as in the case instant, the prosecution is under a duty to prove:-
a) the deceased died
b) the death of the deceased was caused by the accused, and
c) the act or omission of the accused which caused the death of the deceased was intentional with the knowledge that death or grievous body harm was its probable consequences. See Nkebisi v State (2010) 5 NWLR (Pt. 1188) p. 471 at 479. per. DALHATU ADAMU, J.C.A.

EVIDENCE: THE EXTRA JUDICIAL STATEMENT OF A WITNESS; THE ADMISSIBILITY OF THE EXTRA JUDICIAL STATEMENT OF A WITNESS IN EVIDENCE AS ONE INCONSISTENT WITHT THE EVIDENCE GIVEN IN COURT

COURT: DUTY OF COURTS; THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND ASCRIBE PROBATIVE VALUE TO IT AND WHEN AN APPELLATE COURT CAN INTERFERE WITH SUCH DUTY

The law is that “the questions relating to primary finding of facts are evidently exclusive within the domain of the court of trial.” This is because it is the court of trial which has the opportunity of observing the witnesses give oral evidence and determining their credibility from their demeanor and behavior before the court of trial. The Appeal Court which is not in the same advantageous position as the court of trial cannot set aside the judgment of the court of trial merely on the ground that it would have, if it were considering the matter come to a different conclusion. However, where the record discloses that the findings of the trial court cannot be supported by evidence such a findings will be disregarded and the appellate court can set aside the findings. See Uzoka v FRN (2010) 2 NWLR (Pt. 1177) 188 at 123 ratio 7; Gabriel v State (2010) 6 NWLR (Pt. 1190) 280 at 297 ratio 27. per. DALHATU ADAMU, J.C.A.

JUSTICES

DALHATU ADAMU Justice of The Court of Appeal of Nigeria

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria

JOSEPH JUDE JELLA Justice of The Court of Appeal of Nigeria

Between

AUGUSTINE IDUNG Appellant(s)

AND

THE STATE Respondent(s)

DALHATU ADAMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of High Court of Cross River State holden at Ogoja delivered on 21st January, 2013 in Suit No. HC/4C/2008.
The facts leading to this appeal are that the appellant and his brothers are children of the deceased younger brother. Among the brothers of the accused is one described as Odugbo Idung who was said to have developed an ailment and was taken to a native doctor. In view of the visit to the native doctor and in accordance with his professional usage linked the source of the said Odogbo Idung ailment to the deceased. On 9th August, 2007, the appellant with other of his brothers visited the deceased and invited him to accompany them to the native doctor’s house where the said Odogbo was receiving treatment. The appellant with the other of his brothers held axe and iron rod so as to compelled the deceased to follow them to the herbalist house for prayers but the deceased resisted their move as a result the appellant alongside two of his brothers started inflicting blow on the deceased with axe and iron rod, this led to the death of the deceased. The trial court having heard the case, convicted the appellant to death by hanging, the appellant not satisfied with the judgment lodged this appeal.
In the notice and ground of appeal filed on the 7th of October, 2013. The appellant raised six grounds of appeal and urged this court to allow the appeal, discharge and acquitted the appellant.

The appellant brief of argument settled by Mathew Ojua, Esq., of counsel was filed on 7th October, 2013. The respondent brief settled by U. A. Ibitham and filed 17/3/2014.

In the appellant brief of argument four issues has been distilled for determination:-
(1) ISSUE 1- distilled from ground 1; whether given the quality of evidence the prosecution proved its case beyond reasonable doubt to warrant the conviction of the appellant for murder.

(2) ISSUE 2- distilled from ground 4: whether the learned trial judge was right in disbelieving the story of the appellant and thereby proceeding to convict him for offence of murder.

(3) ISSUE 3- distilled from ground 3 & 5; whether the learned trial judge was right in expunging exhibit 2 and discountenancing exhibit 5.

(4) ISSUE 4- distilled from ground 6; whether the learned trial judge properly and adequately assessed and evaluated the totality of evidence.

It should however be noted that ground 2 as contain in the notice of appeal did not hinge or relate to any of the four issues formulated therefore same is struck out. The law is trite by this court and Supreme Court respectively that grounds of appeal not covered by or incorporated into issue for determination is deem abandoned and should be struck out. In the instant appeal ground 2 is not covered by 4 of the issues formulated by the appellant, it is deemed to have been abandoned. See Victor John Bassey Anieka v. Mrs. Lilian Bassey Anieka (1999) 12 NWLR (pt. 631) p. 491 at 496.

On Issue 1: It is submitted that the onus of prove is on the prosecution and it does not shift. It is submitted that in murder case the prosecution has duty to lead evidence to show that the deceased is dead, that it is the act of the accused person that caused the death of the deceased and that the accused did the act intentionally with the knowledge that death and grievous bodily harm will be the probable consequences of his action. It is submitted that the prosecution has failed to prove these requirements of the law against the appellant relying in the case of Moga v State (1997) 1 NWLR (Pt. 483) 615 at 616.

It is submitted that the evidence of Pw1 in court is inconsisted with his extra-judicial statement exhibit 1, that the inconsistencies of the statement has rendered the statement unreliable relying in the cases of Onubogu v The State (1974) 9 SC at 17 – 18; Summer and Leivesley v Browns & Co. (1990) 25 TLR 745; Dogo v State (2001) 3 NWLR (Pt. 699) 192 at 211.

It is further submitted that the statement of PW3 was forged exhibit 5 and as such has no place in the instant appeal and same should be treated as unreliable relying in cases of Dogo v State (supra); Elabanjo v Tijjani (1986) 5 NWLR (Pt. 46) 952.

It is submitted that since the trial court in its ruling during trial held exhibit 7 not a confessional statement trial within trial conducted by the trial was not necessary and not relevant relied in Felix Okoro v State (1993) 3 NWLR (Pt. 282) 425; Emmanuel Ike v State (2010) 5 NWLR (Pt. 1186) 525; Effiong Edet George v The State (2009) 1 NWLR (Pt. 1122) 325.

On issue 2, it is submitted that it was wrong for the trial judge to disbelieved the appellant story and believe Pw1, PW2 & Pw3 and condemned the appellant to death by hanging inspite of the inconsistencies and contradictions that characterises their testimonies. That the evidence called by the prosecution is that the appellant assaulted the deceased with an axe, therefore the evidence of the use of wood cannot be use as bases for the conviction of the appellant, it is submitted that this case being a criminal trial the onus is on the prosecution to prove its case beyond reasonable doubt.

On issue 3, it is submitted that exhibit 1 was tendered and admitted without objection for the sole purpose of contradicting Pw1 as to where he was when the deceased was killed. It is submitted that the purpose was achieved when it was shown that in exhibit 1 Pw1 said he ran away for his dear life which was threatened by the appellant. It is submitted that expunging exhibit 1 was wrong and amount to denying this court the opportunity to form an opinion in exhibit 1. It is submitted that exhibit 5 was not made on the day that it was shown to have been made. It is submitted that the trial court ought to have assess and evaluated the document for the purpose of assessing the credibility of the witnesses relying in the case of Muhammed v Abdulkadir (2008) 4 NWLR (Pt. 1076) 111 at 156.

It is submitted that had the trial court evaluated the document he would have come to the enviable conclusion that the witness is a liar and would have discountenance her evidence, relied on Igbeke v Emordi (2010) 11 NWLR (Pt. 1204) 1 at 3; Woluchem v Chidi (1981) 5 SC 291; Odofin v Ayoola (1984) 1 SCNLR 372.

On issue 4, it is submitted that the primary duty of the trial court is to evaluate and ascribe probative value to evidence rely on Lake v State (1992) 9 NWLR (Pt. 265) 260; Bello v State (2007) ALL FWLR (Pt. 396) 702 at 713.

It is submitted that failing to make use of exhibit 5, the judge clearly failed to assess the credibility of PW3 and doing so had occasion miscarriage of justice against the appellant.

The Respondent in the respondent brief formulated four issues for determination to wit:
1) Whether the conviction of the accused for the offence charged was without foundation on the evidence adduced at the trial.

Apart from issue 1 in the respondent’s brief which is reproduced above the remaining three issues appeared similar to that formulated by the appellant in the appellant brief so needless of reproducing them.

It is submitted on behalf of the respondent that contrary to the contention of the appellant in the appellant brief that exhibit 1 is at variance with the evidence given at the trial is not true and that there was no contradiction in the evidence of PW1 that the reasoning of the trial judge cannot be faulted unless there is contradiction. Rely on the case of Gaji v State (1975) ALL NLR Q. 268.

It is submitted that the contents of exhibit 1 and deduction derivable from it cannot be varied by oral testimony. It is submitted that the assertion of the appellant that the court should rely on the evidence of PW2 to hold that PW1 was not an eye witness to the killing is without basis in law. Relied on Kwara Hotel v Ishola (2002) 9 NWLR (pt. 773) 604 at 622 – 623. It is submitted that the case of Onubogu v State (supra) to show that the court cannot pick and choose between evidence of PW1 and PW3 is not applicable, that the contradiction as alleged is between Exh. 1 and the evidence of Pw1 in court but that the law forbids the use of oral evidence to vary the content of written document. Relied on Kwara Hotel v Ishola (supra).

It is submitted that the case of Dogo v State (2001) 3 NWLR (Pt. 699) 192 at 211 to show that contradiction between extra-judicial statement of a witness and his evidence in court should render his entire evidence unreliable is not applicable.

It is submitted that there is no contradiction between the evidence of PW1 in the court and his statement to the Police. That it was on this ground that the trial court expunged exhibit 1. It is also submitted that PW3 was also at the scene of the crime as Pw1 said it was Pw3 shout that attracted him to the scene of the crime.

It is submitted that a charge for murder rest on the hypothesis that the deceased was killed in cold blood. The weapon used is not of the elements, it is submitted that the court below was right when it held that the accused person’s failure to call a witness to substantiate his claim that the story of the sister’s death as inconsistent with exhibit 7. It is submitted that extra-judicial statement can only be tendered to contradict the witness, it is submitted that before that statement can be admitted in evidence, the person seeking to tender same must point to the contradiction between what the maker of the statement said in court and the previous statement. Relied on Gaji v State (1975) ALL NLRP 268; Layonu & Ors. v. The State (1967) ALL NLRP 210.

It is submitted that evidence wrongly admitted must be expunged at the time of judgment with or without objection. Relied on Onwuneme v ACB (1997) 12 NWLR (Pt. 531) p. 150 at 159.

It is submitted that Pw3 only denied making exhibit 5 and not that its contents was inconsistent with Pw3 statement in court. That the imputation of lie against PW3 is baseless in the case instant.

It is submitted that it is not correct that the learned trial judge failed to evaluate any piece of evidence adduced at the trial. It is submitted that the trial court made its position clear that there was no contradiction between exhibit 1 and the testimony of Pw1 in court. It is submitted that the trial court was right to have expunged exhibit 1 as evidence wrongly admitted relied on Onwuneme v ACB (supra) and Ekpechi v Owhonda (1998) 3 NWLR (Pt. 543) p. 618 at 642.

It is submitted that Pw2 never claim to be an eye witness but that both pw3 and Pw1 said Pw1 was an eye witness that the trial court was right to have treated Pw1 as an eye witness. It is submitted that the trial judge was right not to have make use of Exhibit 5, that the trial court had no business not to believe the evidence of Pw3 in court.

I have amply consider the nature and circumstances surrounding this appeal. The submission of counsel contained in their respective briefs as well as the record of appeal in its entity and it should be pointed out that the whole issues formulated in the appellant brief are in the negative. It should however be noted that the four issues formulated in the respondent brief are in all fours similar to that of the appellant the only new point in the entire four issues in the respondent brief which is in issue 1 ‘whether the conviction of the accused for the offence charge was without foundation on the evidence adduced at the trial my prompt reply to this is that I resolve same in favour of the respondent.

Having said this, I shall now reproduce the issues and treat them one after the other.

Issue 1
Whether given the quality of evidence the prosecution prove its case beyond reasonable doubt to warrant the conviction of the appellant for murder?

I am comfortable with the dicta of His Lordship, Tobi, JSC, above. From the above dicta it is clear that the standard required by law is that the prosecution must ensure that material ingredient of the offence is proved, for example, in the charge for murder as in the case instant, the prosecution is under a duty to prove:-
a) the deceased died
b) the death of the deceased was caused by the accused, and
c) the act or omission of the accused which caused the death of the deceased was intentional with the knowledge that death or grievous body harm was its probable consequences.
See Nkebisi v State (2010) 5 NWLR (Pt. 1188) p. 471 at 479.
Once the above three requirements are met the prosecution has properly discharged the duty of proving the guilt of the accused and in the instant appeal, I have no doubt to hold that the prosecution has properly established all the ingredient required of a murder charge against the appellant.

At page 32 of the record of appeal, PW1 testified thus:
“On 9/8/2007 the accused and his two brothers, Michael Idung and Clement Idung came to Raymond Idung’s compound, they dragged Raymond Idung (the deceased) out of his house, I was there when they came. Raymond started fighting with the accused person. The accused two brothers stood aside. In the cause of the fight the accused hit Raymond with an iron and Raymond fell down. The accused threw the iron to his brothers. The accused person brought out an axe which he inflicted injury on the head of Raymond, blood and other substance were coming out of Raymond head. The other substance was like red pap. Raymond died on the spot.”

Those are the evidence which the trial court accepted and convicted the Appellant. I cannot fault the reasoning of the trial court on these crucial part of PW1’s evidence. I am also in agreement with the submission of counsel to the Respondent in the Respondent’s brief at page 8:
“that the reasoning of the trial Judge cannot be faulted, unless there is contradiction that previous statement is not admissible relying in Gadi v State (1975) ALL NLR p. 268. It may be recalled that the Appellant in his brief at pages 3, 4, 5 and 6 invited this court to fault the reasoning of the trial judge on the ground that it was wrong for the trial court to have based the conviction of the Appellant on Exhibit ‘1’ alongside the evidence of PW1 which is at variance with the evidence of PW1 in court. Appellant further urged this court to hold that the trial court was wrong to have expunged exhibit ‘1’ on ground of inconsistency with the testimonies of PW1 in court. Relying in the case of Onubogu v State (1974) 9 SC 1 at 17-18. While the law is trite, A finding of fact would not be disturbed where there is sufficient evidence to support it and when miscarriage of justice has not occurred. See Nwokearu v State (2010) 15 NWLR (Pt. 1215) page 1 at 15.
I decline to interfere in the finding of the trial court as there was significant evidence to support the findings.

I have read the record of proceedings and the scenario painted by PW1 clearly show that PW1, was an eye witness, moreso that the evidence of PW3 corroborated the fact that PW1 was an eye witness. PW1 at the trial court gave a correct version of what happened. When he informed the court that “the accused used iron to hit the deceased, the accused threw the iron rod with which he hit the deceased to his two brothers who were standing by and subsequently brought out an axe which he inflicted injury on the head of the deceased that as the accused caused injury on the head of the deceased blood and other substance like red pap came out of the head of the deceased as a result the deceased died on the spot. That he ran away after the accused threaten to descend on him if he did not stop shouting. He added that, he ran away after he saw the injury on the deceased head as he the deceased felt down.” I have no doubt in my mind that PW1 is an eye witness and there is no doubt that at the time the Appellant engaged the deceased with the lethal weapon the Appellant willed and deliberately intent to cause grievous bodily harm on the deceased. A man is taken to have intended the natural consequences of his action. There is no doubt that the death of the deceased was caused by intentional act of the Appellant which to his knowledge would reasonably cause death of the deceased. A wound on the head was surely intended to cause bodily harm if not to kill. So I find it very difficult to belief the Appellant that PW1 is not an eye witness. The submission of learned counsel to the Appellant in the appellant brief that Exhibit 1, the extra-judicial statement of PW1 was inconsistent with his testimony is not tenable as the appellant was not able to show where PW1 gave different version from Exhibit 1 and his evidence in court.

I have taken the pain to read through the entire content of exhibit ‘1’ at page 5 of the record of appeal and I came to the conclusion that there is no different in the content of exhibit 1 with PW1 evidence in court though not without minor inconsistencies which I felt not fatal to the prosecution case. In our criminal jurisprudence, it is not every tritling inconsistency in the evidence of the prosecution witnesses that is fatal to it case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issue in question before the court and thus necessarily create some doubt in the mind of the trial court that an accused is enable to benefit therefrom, See Ike v State (2010) 5 NWLR (Pt. 1186) p. 41 at 49 ratio 16.

I am comfortable with the above ratio. I therefore find it difficult to hold that exhibit 1 contradict the evidence of PW1 in court. Furthermore, I convinced by the authority of Onubogu v State (1974) 9 SC 1 at 17-18, cites and relied on by the respondent. However, it should be noted that it is always difficult for human being to maintain or adopt one pattern of narrating story. The fact that PW1 said in his extrajudicial statement “the boys brought out dangerous weapon such as axe and machete. I ran away for my dear life.” Now the question is, did PW1, during trial repeat the same comment? I think Yes. A witness in court is at liberty to choose how he can tell his story to the court he can start from any angle within his knowledge. The most important thing is the element of truth from the previous statement that was given in court? If the answer is in the affirmative, then at the point there is no inconsistency between the first statement and the one given in court. In Ike v State (supra) at p. 49 ratio. The court held that what amount to inconsistence in evidence, two pieces of evidence are inconsistent when they are in essence mutually exclusive such that if one is true, the other must be false because they are essentially contradictory. Therefore I decline to agree with the submission of the Appellant that exhibit 1, extrajudicial statement is inconsistent with PW1 testimony in the court, I hold the view that, it is only where there is obvious material inconsistency between the evidence of a witness before the police and the evidence he gave on oath before court, the trial court would be right to apply inconsistency rule and to reject the evidence of the witness. Such that both his judicial statement to the police and his evidence on oath would be discarded as worthless since the court cannot pick and choose between the two inconsistent statements. See Nwokeagu v State (supra) at 13 ratio 15. In the instant case the accused stand not to benefit from the above ruling in that the appellant did not show how exhibit 1 is inconsistent with the subsequent evidence of PW1 in court.
Added to this is the fact that even when a witness is shown to have made previous statements inconsistent with the evidence given by the witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreasonable, they should also be directed that the previous statements, whether sworn or unsworn do not constitute evidence upon which they can act. See Oladotun v State (2010) 15 NWLR (pt. 1217) 490 at 493-494 ratio 1.

The trial judge rightly convicted the Appellant on the strength of the evidence of PW1 in court, I also agreed with the trial court expunging exhibit 1 on the ground that exhibit 1 was wrongly admitted in evidence, the law is trite by this court in Oladipo v MOBA Local Government Council (2010) 5 NWLR (Pt. 1186) 17 at 132 ratio 23, “Where in admissible evidence is admitted, the trial or an appellate ‘court should reject the evidence, and after expunging such evidence shall consider if there is any remaining legal evidence to sustain his case.” I agreed with the submission of learned Senior State Counsel, Mr. U. A. Ibitam in the Respondent brief at page 9 that the conviction of the Appellant by the trial court was not without foundation. I so hold. Interestingly, in our criminal justice system evidence of one credible witness is enough if believed to secure conviction. So if this court is to agree with the invitation by the appellant to disbelief the evidence of PW3 and exhibit 5. What would remain of this appeal is the evidence of PW1 and that of PW2, which I believe constituted sufficient and cogent reasons to support the conviction of the appellant. I refuse to hold that the evidence led by the prosecution is contradictory. I also hold that there is no element of doubt in the prosecution case to which the appellant can benefit therefrom as no material contradiction or inconsistencies that called for resolution by the trial court. Therefore issue 1 is resolved in favour of the respondent. I so hold.

On issue 2, whether the learned trial judge was right in disbelieving the story of the appellant and thereby proceeding to convict him for offence of murder. My answer to this issue is that the High Court correctly acted within the law by disbelieving the Appellant story and convicted him on the evidence of PW1 and PW3 and I so hold. Moreso, that the reason upon which the trial court convicted the appellant where not challenged. The PW1 and PW3 said they saw when the appellant hit the deceased on the head with an axe, that in exhibit 7 the appellant said he hit the deceased with firewood, that the appellant could not call even one witness to say his sister died to confirm that his sister actually dead and was awaiting burial.

Now the question that come to my mind is that were all the above pieces of evidence challenged by the appellant? I think the answer must be in the negative, this is because the appellant throughout the proceedings at the trial court did not put on challenge to all the aforementioned damaging allegations against him, in this regard, I hold that the appellant neglected to dispute the substance of the prosecution evidence and the trial court rightly accepted the evidence of PW1, PW2 and PW3 and convicted the appellant. The law is already settle both in this court and the Supreme Court that evidence unchallenged is deemed admitted and the trial court can act upon it. Issue two is resolve in favour of the respondent.

On Issue Three:
Whether the learned trial judge was right in expunging Exhibit 1 and discountenance Exhibit 5? The trial court was right to have expunged Exhibit 1 and accordingly discountenance Exhibit 5 therefore the respondent counsel was right in his submission that “evidence wrongly admitted must be expunged during judgment “. Relying on the case of Onwuneme v ACB (1997) 12 NWLR (Pt. 531) p. 150 at 159. I find that the authority in the above cited case applicable to this appeal and I so hold.

Furthermore, I also find it to be the law that before the extra judicial statement of a witness can be admitted in evidence as one inconsistent with the evidence given in court. It is the duty of the party alleging inconsistence between the statement of the witness made extra judicially to the police and the one given under oath in court, must as a matter of law clearly pointed out those areas of contradiction or inconsistencies, and for the party cross-examining the witness to achieve this, the contradiction must first be pointed out the witness so as to give him an opportunity to explain. In the instant case, such opportunity was not afforded by the appellant to prove, therefore cannot turn around and raise any issue on it. I agree with the authorities of Gadi v State (1975) ALL NLR page 268; Layonu & Ors. v State (1967) ALL NLR p. 210. I however refused to be convince by the authority in Muhammad v Abdulkadir (2008) 4 NWLR (Pt. 1076) 111 at 156-157; Igbeke v Emordi (2010) 11 NWLR 1at 34; Woluchem v Gudi (1981) 5 SC 291; Odofin v Ayoola (1984) 1 SCNLR 372. This is because I hold the view that the trial court adequately considered exhibit 1 in the cause of its judgment. Again, as I said when dealing with issue 1 that I did not see where exhibit 1 and the extrajudicial statement of PW1 contradict or inconsistent with his testimonies in court now another thing that would come to mind is when evidence of a witness can be said to be contradictory. Testimonies of witness can only be said to be contradictory when they give inconsistent account of the same event, at that for the contradiction to vitiate a decision, they must be fundamental and substantial as it is not every discrepancy and inconsistency in the testimonies of the witness for the prosecution that would vitiate a decision. For discrepancy and inconsistencies to vitiate decisions it must be material to the extent that it affect the crux or fundamental issue to be determined by the court. The rational behind the position of the law is that it is almost impossible to find two persons who witness an incident giving exact account of it when called up to give evidence on a future date. Should this happen, such accounts should be viewed with utmost suspicions as the parties may have rehearsed account or compared notes. Thus minor variations in testimonies of witness imbue the evidence with information truth. In the instant case, the minor discrepancy in the evidence given in court when put together with exhibit 1 cannot vitiate the conviction of the Appellant.

The interesting part of exhibit 1 and PW1 evidence in court from the record of appeal are as follows:- In exhibit 1, the witness said, “as I said, the boys dragged the man out of his house and started hitting him with rods. When I saw what the boy, were doing, I could not hold myself, hence went in to separate them, but as I was trying to do this, the boys brought out some dangerous weapon such as axe and machete, hence ran away for my dear life.” (underlining mine for emphasis). PW1 stopped at this point and make no further comment as to the situation of the deceased in the hand of the appellant then doubt would have shrouded into the subsequent testimony of PW1 during trial, this is because it is not within the purview of human being to give account of what he was not there, except being told; However, PW1 after saying, “I ran away for my dear life” he went further to say “shortly after I separated myself, Austine Idung used axe and cut the deceased on the head while the others continued to hit him with iron rod till the man fell down and died. After the man died the boys turn around to pursue me but I was fast enough to escape from them”. The underlined testimony of PW1 at the police station is clearly pointing to the fact that PW2 was present until the appellant and his two other brothers completed their mission. The use of the word after the deceased had died, stand to support the point. Furthermore, PW1 in his subsequent evidence given in court said “accused brought out axe with which he inflicted an injury on the head of Raymond, blood and other substance were coming out of Raymond’s head the other substance was like red pap. Raymond died on the spot, he went further and said I ran away after I saw the injury on the head of Raymond and Raymond fell down. Accused and his brothers ran after me.” From the above evidence of PW1, I am convince that the key element implication the appellant were repeated as it is in Exhibit 1. I cannot therefore fault the lack of astuteness and or capacity of PW1 for not observing meticulous mode of narrating stories. Again, the trial court was right to have discountenanced exhibit 5 and I agreed with the findings of the trial court on exhibit that since PW3 denied making exhibit 5, not that its content is inconsistent with PW3 oral evidence in court. So the importation of lie against PW3 is baseless. I hold this to be a clear statement of law, therefore issue 3 is resolved in favour of the respondent.

On Issue 4: Whether the learned trial judge properly and adequately assessed and evaluated the totality of the evidence? My prompt answer to this issue is that it has not been shown in the entire record of appeal how the trial court fail to properly evaluate or assess the evidence put forward by the prosecution including Exhibit 1 & 5. I am therefore not allowed to temper with such findings of the trial court particularly in the instant case where there is cogent and compelling evidence to which the trial court belief and convinced the appellant. The law is that “the questions relating to primary finding of facts are evidently exclusive within the domain of the court of trial.” This is because it is the court of trial which has the opportunity of observing the witnesses give oral evidence and determining their credibility from their demeanor and behavior before the court of trial. The Appeal Court which is not in the same advantageous position as the court of trial cannot set aside the judgment of the court of trial merely on the ground that it would have, if it were considering the matter come to a different conclusion. However, where the record discloses that the findings of the trial court cannot be supported by evidence such a findings will be disregarded and the appellate court can set aside the findings. See Uzoka v FRN (2010) 2 NWLR (Pt. 1177) 188 at 123 ratio 7; Gabriel v State (2010) 6 NWLR (Pt. 1190) 280 at 297 ratio 27.
Unfortunately in this case, I find it difficult to interfere with the findings of the trial court therefore this issue is resolve in favour of the respondent. So from the totality of the evidence adduced I am of the considered view that the prosecution has discharged the burden of proving the essential ingredients of the offence of murder I hold that the issues raised by the appellant in the appeal, are, to say the least frivolous and misconceived.

On the whole, the appeal lacks merit and is accordingly dismissed. The judgment delivered on 21st day of January, 2013 by His Lordship, Hon. Justice E. E. Ita, of the High Court of Cross River State, holden at Ogoja is hereby affirmed.

PAUL OBI ELECHI, J.C.A.: I have had the privilege of reading the draft judgment just delivered by my learned brother Dalhatu Adamu, JCA. My learned brother has demonstrated in no small measure why the conclusion arrived at in the lead judgment should be so and not otherwise. Indeed, I have nothing to add. I entirely agree with his reasoning and conclusion and also hold the same view that the appeal lacks both substance and merit at the same time. I also dismiss the appeal and abide with the consequential orders made in the lead judgment.

JOSEPH JUDE JELLA, J.C.A.: I was opportuned to read in draft the Judgment just delivered by my learned brother Dalhatu Adamu, JCA, CFR. I agree with him that this appeal lacks merit and so it should be dismissed. The judgment of the Ogoja High Court presided over by Justice E. E. Ita is also affirmed by me.

Appearances

Mathew OjuaFor Appellant

AND

U.A. Ibitham, SSC 1, Ministry of Justice, CalabarFor Respondent