CHINELO NDUKA V. THE STATE
(2013)LCN/6298(CA)
In The Court of Appeal of Nigeria
On Thursday, the 13th day of June, 2013
CA/J/1c/2005
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
SAMUEL C. OSEJI Justice of The Court of Appeal of Nigeria
MOHAMMED A. DANJUMA Justice of The Court of Appeal of Nigeria
Between
CHINELO NDUKA Appellant(s)
AND
THE STATE Respondent(s)
RATIO
DEFINITION OF A TAINTED WITNESS
It has been held that a tainted witness is a witness who has a grudge against the accused person. This may be by way of an old score to settle or an axe to grind or a purpose of his own to serve against the said accused person through the evidence. See MBENU V. THE STATE (1988) 3 NWLR (PT. 84) 615: OKONJI V. THE STATE (1987) 1 NWLR (PT. 52) 652: MOSES V. STATE (2006) 11 NWLR (PT. 992) 458: OGUONZEE V. STATE (1998) 5 NWLR (PT 551) 521 and OKORO V. STATE (1988) 14 NWLR (PT. 584) 181. PER OSEJI, J.C.A.
WHETHER OR NOT A TRIAL JUDGE SHOULD BE CAUTIOUS IN CONSIDERING THE EVIDENCE OF A TAINTED WITNESS
It is agreed that a trial judge must be cautious and indeed warn himself during the consideration of the evidence of a tainted witness but it must me noted that mere relationship with a victim of a crime or even the accused does not automatically create the garb of a tainted witness. See OGUNBAYO V. STATE (2007) 8 NWLR (PT. 1035) 157 and AKALANO V. (STATE) (2000) 2 NWLR (PT.643) 165.
It behoves the trial judge who is in a strategic position to see and observe such witness to assess the evidence before reaching a conclusion whether or not such witness is tainted as to warrant the trial judge warning himself on the danger of relying solely on such evidence. PER OSEJI, J.C.A.
WHETHER OR NOT IT IS EVERY CONTRADICTION IN THE TESTIMONY OF A WITNESS THAT RENDERS THEIR EVIDENCE UNRELIABLE
It is trite that where the testimony of a witness in Court contradicts or is inconsistent with the previous extra-judicial statement, the Court should not only regard the sworn testimony as being unreliable but also the previous statement whether sworn or unsworn as not consisting evidence upon which it can act. See OBRI V. STATE (1997) 7 NWLR (PT. 513) 352; DOGO V. THE STATE (2001) 5 NSCQR 307. Equally where there are contradictions in the evidence of prosecution witnesses on material facts, such contradiction ought to be explained by the prosecution, through evidence, failing which the evidence relating thereto will be treated as unreliable by the Court. See AIGBADION V. STATE (1997) 7 NWLR (PT. 612) 641 and AHMED V. STATE (2000) 4 SC (PH 1) 1. However it is not every contradiction in the testimony of witness that will render their evidence unreliable. The law allows room for minor discrepancies. See AYO GABRIEL V. STATE (1989) 12 SCNJ 33; AKPAN V. STATE (1991) 3 NWLR (PT.182) 646: DAGAYYA V. STATE (2006) ALL FWLR (PT. 212) 1666 and POPOOLA V. STATE (2011) 47 WRN 88 in EKE V. STATE (2011) 10 WRN 1 at 13 the Supreme Court per Fabiyi JSC provides an illuminating analysis as follows:-
“It is basic that testimonies of witnesses can only be contradictory when they give inconsistent account of the same event. For contradictions in the evidence of witnesses to vitiate a decision they must be material and substantial. Such contradictions must be so material to the extent that they cast serious doubts on the case presented as a whole by the party on whose behalf the witnesses testified or as to the reliability of such witnesses. In sum, minor and inconsequential contradictions which do not seriously relate to the ingredients of the offence charged should not vitiate the case of a party”
See also AFOLALU V. THE STATE (2009) 3 NWLR (PT. 1127) 160 and NASIRU V. THE STATE (1999) 2 NWLR (PT, 589) 87. PER OSEJI, J.C.A.
SAMUEL C. OSEJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice. Benue State sitting in Gboko and delivered by Hon. Justice J. S. Ikyegh on 28-10-2004 in case No. GHG/19c/2000 wherein the Appellant was convicted and sentenced for the offence of voluntarily causing grievous hurt.
The charge against the Appellant as per the (Application for leave to prefer a charge in the High Court) brought pursuant to Section 185(3) of the Criminal Procedure Code reads thus: –
CHARGE: “That you, Mrs, Chinelo Nduka ‘F’ on or about the 23rd day of February 1999 at Gboko in Gboko Local Government Area within jurisdiction of this honourable court voluntarily caused grievous hurt on one Mrs. Charity Abana by pouring her Acid which is a corrosive substance deleterious to the human body and you thereby committed an offence punishable under Section 248(2) of the Penal Code.”
The facts as per the record was that on the night of 22-2-99 at No. 15 Ayangebee Street, Gboko, one Mrs. Charity Abana (PW1) with her husband (PW2) and daughter laid down in front of the door to their room. At about 3.00 a.m. the weather became cold and her husband decided to take their baby inside the house. Thereafter, the PW1 saw the Appellant pass to and from where she was lying down and then entered her own room. Later the Appellant came out of her room with a plastic bowl that had no cover and moved towards her and poured the content of the bowl on her after which the Appellant ran back to her room which was directly opposite that of PW1.
The PW1, started shouting fire! Fire! As a result of the burning effect of the content of the bowl on her body she also called the name of the Appellant in the process of the shout which brought out other tenants in the premises who then helped in pouring water on her to cool down the burning effect of the substance which affected her face, the two breasts, hands and other parts of her body. It was discovered that the substance was acid and she was taken to Royal Hospital, Gboko where after sometime the Doctor referred her to National Orthopedic Hospital, Enugu. The effect of the substance made her to go blind in the two eyes, disfigured her face, chopped off her nose, lips, breast nipples and chin and her neck, chest and back badly scarred.
The appellant was subsequently arrested and charged with the offence but she denied the charge and insisted that she was inside her room sleeping with her husband when the incident occurred.
At the trial which commenced in the lower court on 30-6-2001 the prosecution called four witnesses who testified as PW1, PW2, PW3 and PW4. The prosecution also tendered Exhibits marked ‘A’ to ‘F’ through the witnesses.
The Appellant in her defence testified as DW1 and called one other witness (her husband) as DW2.
At the conclusion of the hearing, written addresses were ordered, filed and exchanged. The parties adopted their respective written addresses on 21-9-2004. Judgment was subsequently delivered by the lower court on 28-10-2004 wherein the Appellant was found guilty as charged. She was convicted and sentenced to three years imprisonment with a fine of five thousand Naira (N5,000.00) in default of which she will serve another jail term of two years.
Apparently dissatisfied with the said judgment, the Appellant filed a notice of Appeal dated 26-11-2004 and filed the same date. The said notice of appeal contains eight grounds which shorn of their particulars read as follows:-
GROUNDS
(1) The trial high court erred in law when it relied heavily on the evidence of the PW2 to convict the appellant when it was shown on the record that the PW2 listened to part of the oral testimonies of the PW1 and this has occasioned miscarriage of justice.
(2) The trial high court misdirected itself in law when it failed to found that the PW1 had deep-seated animosity and anger against the appellant before the incident, a fact that led the PW1 to easily accuse the appellant as the person responsible for the attack on her.
(3) The trial high court erred in law when it refused to uphold the plea of alibi set up by the appellant in the face of the unchallenged and uncontroverted evidence of the appellant and the DW2 in support of the plea.
(4) The trial high court erred in law when it failed to treat the evidence of PW2 with caution, thereby occasioning miscarriage of justice
(5) The trial high court erred in law when it failed to resolve all the material contradictions in the evidence and statements of the prosecution witnesses in favour of the appellant.
(6) The trial high court erred in law when it convicted the appellant and held that she poured acid on the PW1 when there was no proof that what was poured on PW1 was acid
(7) The trial high court erred in law when it refused to believe the evidence of the defence concerning the running quarrels between the P1 and one mama Terlumun in the yard when it found thus: – “The story by the defence that one mama Terlunun was the person that had o running quarrel with the PW1 on one occasion was not adequately put to the PW1 and PW2… consequently the evidence of the PW1 and P2 on the issue stood undisturbed and is hereby accepted as representing the truth of the matter on the issue”
(8) The judgment of the trial high court is unreasonable and against the evidence adduced before it.
Briefs of argument were subsequently filed and exchanged by the parties.
The appellant’s brief of argument dated 5-2-2005 but filed on 8-2-2005 was settled by S. O. Simon, Esq. The Respondent’s brief of argument settled by M.I. Fiase Esq. Principal state Counsel I was dated 25-1-2013 and filed on 1-2-2013.
At the hearing of the appeal on the 16-4-2013 the party’s briefs of argument were duly adopted on their behalf by their respective counsel.
In the Appellant’s briefs of argument, 5 issues were distilled for determination as follows:-
(i) Whether or not the evidence of a witness who sat and listened to other witness testimonies before his own, could be relied upon to sustain a conviction.
(ii) Whether plea of alibi could be rightly rejected when there was no reliable evidence fixing the appellant at the scene of the crime and when the plea was not investigated by the prosecution even though raised timeously.
(iii) Whether or not the evidence of PW2, the husband of the victim, PW1, was treated with caution by the trial court.
(iv) Whether a conviction can be sustained on the fact of material contradictions,
(v) Whether the totality of evidence adduced by prosecution could sustain a conviction under the law.
In the Respondent’s brief of argument, two issues were formulated for determination as follows:-
(i) Whether or not it was the Appellant who was/is responsible for the criminal act that occasioned the aforesaid bodily pain and infirmity of PW1 and
(ii) whether or not the Appellant’s issue Number (i) does arise or is competent.
I am however minded to adopt the issues as formulated in the Appellant’s brief more so that they were duly replied to in the Respondent’s brief of argument.
ISSUE 1
Dwelling on this issue, learned counsel for the Appellant submitted that while the PW1 was giving evidence in court, the PW2 (PW1’s husband) was present in court and listened to her testimony. He added that the lower court later attached much weight to the evidence of PW2 in the absence of which the Appellant would not have been convicted.
Learned counsel then referred to Section 187 (1) and (2) of the Evidence Act and JOSEPH OKORO V. STATE (1992) 10 SCNJ 113 at 122 to contend that no weight ought to have been attached to the evidence of PW2 in the circumstances.
In his reply, learned counsel for the Respondent submitted that though the PW2 was in court when the PW1 commenced her evidence in chief but she was at the introductory stage of the evidence when it was realized that PW2 was in the court and he was then sent out of court and out of hearing in accordance with Section 187 of the Evidence Act as shown in page 17 of the Record. Besides, he added, the Appellant, having not raised the issue before the lower court and a decision reached on appeal, therefore, the case of JOSEPH OKORO V. STATE relied on by the Appellant is inapplicable.
Learned counsel submitted in the alternative that the presence of PW2 during part of the evidence of PW1 has not been shown to have occasion miscarriage of justice and should therefore be discountenanced.
A careful perusal of the record of appeal show that the issue of the presence of PW2 in court during part of the evidence of PW1 was not raised or contested by any of the parties and did not as such form part of the decision of the lower court. In such a situation if behoves the Appellant to have sought the leave of this court before it would be raised on appeal. Failure to comply with this requirement of the law renders the ground of appeal arising there from incompetent and the issue so formulated therein as unarguable and deserving of being struck out.
It is trite that when a party seeks to file and argue any fresh issue in the appellate court, he must first seek and obtain the leave of court before filing such issue and an appellant will not be allowed to raise a point or issue that is not raised or argued at the trial court, except where the issue has to do with jurisdiction of the court, in which case it can be raised at any time and even on appeal for the first time. See ELUGBE V. OMOKHAFE (2004) 19 NWLR (PT. 905) 319, OGUNSOLA V. NICON (1996) 1 NWLR (PT. 423) 126 BANKOLE V. PEW (1991) 8 NWLR (PT. 1211) 523 OKONKWO V. OGBOGU (1996) 5 NWLR (PT. 449) 420 AND OWIE V. IGHIWI (2005) 5 NWLR (PT. 917) 184.
Be that as it may, a Look at the proceedings in the lower court on 14-6-2001 reveals that the evidence in chief and cross-examination of the PW1 spanned from page 17 to 22 of the record. Her testimony including her name, address and occupation covered about only 12 fines before it was discovered that the pw2 was inside the court hall. The learned trial judge recorded thus, as a result of the development.
“COURT – At this stage, a potential witness, one Emmanuel Abana who had been in court during the above testimony of this witness was ushered out of court and out of hearing by the state”.
I do indeed agree with learned counsel for the Respondent that the testimony of the PW1 being at the introductory stage when the discovery was made caused no harm to the Appellant neither did it occasion miscarriage of justice. Nothing therein can be held to have compromised or jeopardise the interest of the Appellant. Either way however this issue is resolved against the Appellant.
ISSUE 2
Herein, learned counsel for the Appellant submitted that once an alibi is raised timeously by an accused person, such alibi must be investigated by the police but in this case the Appellant raised the defence of Alibi the very first time she was arrested but the police failed to investigate it. He added that going by the evidence of incessant animosity between the PW1 and the Appellant as well as the fact that the PW1 once had a quarrel with one mama Terlumun means either that she wanted to extract her pound of flesh from the Appellant or that it is possible that Mama Terlumun or some else would have been the culprit.
Learned counsel further submitted that if the evidence of PW1 is credible to the effect that she shouted the name of the Appellant as she was running into her room at the time she also shouted fire! fire! and people including PW2 came out, then the PW2 could not have asked her later in the hospital if she knew who was responsible for the attack. Furthermore, he argues, the bowl said to have been used was not recovered from the Appellant’s room neither was it seen in the premises. Therefore, the evidence of the PW1 heavily relied upon by the lower court as fixing the Appellant at the scene of crime is contradictory, unreliable and mischievous and should be reject by this court.
Responding on this issue, learned counsel for the Respondent, while conceding to the fact that the defence of Alibi, when timeously raised, places on the police or prosecution the duty to do some further investigation to affirm or disprove it. The said duty is however removed when the evidence of the prosecution fixes the accused at the scene of crime and also identifies him as the culprit in which case the defence of Alibi will crumble. He cited the case of SALE DAGAYYA V. THE STATE (2005) 134 LRCN 397 at 406.
Learned counsel further submitted that the direct and positive evidence of PW1 taken together with the corroborative effect of the evidence of PW2, PW3 and PW4 as well as Exhibit ‘B’, ‘C’ and ‘D’ clearly identified the Appellant as the culprit.
He added that it is immaterial that the bowl in issue was not recovered even as the issue whether or not PW2 heard the PW1 shout the name of the Appellant as the culprit at the time of the attack as it was not the case of the prosecution that the PW2 heard all that was said by PW1 at that point in time.
The law relating to Alibi is that an accused person who wishes to raise alibi must raise it at the earliest opportunity to enable the police to investigate it. The accused is however expected to offer evidence as to where he was at the time of the crime and with whom he was at that material time. See NSOFOR V. THE STATE (2002) 10 NWLR (PT 775) 274 AND ONYEGBU V. THE STATE (1995) 4 NWLR (PT 391) 510.
The onus is on the prosecution to disprove the alibi and as such, once the defence is raised by an accused person, it must be investigated and failure to so do will be fatal to the prosecution’s case. See NSOFOR V. THE STATE (supra): SOWEMIMO V. THE STATE (2004) 11 NWLR (PT 885) 515.
However, there are instances where an accused person may raise the defence of alibi and it is not investigated but will nonetheless be convicted if there is a stronger and credible evidence before the court. See NWOSISI V. THE STATE (1975) 5 SC 109.
Also, where an accused person is unequivocally pinned to the scene of crime as the one who committed the offence, the defence by the accused person that he was elsewhere at the material time the offense was committed is paralysed by the unequivocal evidence of a witness or witnesses tying him to the scene of the crime as one who committed the offense. See SOWEMIMO V. THE STATE (supra).
The instant case is a quite peculiar however, in the sense that both the victim of the crime PW1 and her husband PW2 as well as the accused (now appellant) and her husband DW2 also live in the same compound and in fact have their rooms opposite each other and they have so lived together and interacted for a number of months.
The alibi as raised by the appellant was that in the night of the incident around 3 a.m. she was inside the room sleeping with her husband when she heard the PW1 who was sleeping outside shout, then she and her husband opened the door and came out. Though there is no specific evidence that the police investigated the appellant’s claim that she was in her room sleeping with her husband at the time of the incident, nonetheless the PW4 who was the I.P.O. visited her room during the course of their investigation wherein he found traces of drops of black substance between her doorstep and the mat where the PW1 laid that night. The PW4 also said that he perceived an odour in her room which is an odour similar to that emanating from the mat (Exhibit B) used to lie down that night by the PW1. Furthermore, the PW1, both in her extra judicial statement and her evidence in court unequivocal stated that she saw the appellant pour the substance in a bowl on her that night and immediately ran inside her room and her door made locking noise which made her know that she had shut herself inside her room.
In this regard, the lower court in its judgment at page 83 of the record made the following findings:-
“The above unchallenged evidence of the PW1 thus in my finding and respectful opinion, fixes accused person at the scene of crime and rendered her plea of alibi worthless, as righty submitted by Mr. Atume, learned Senior State Counsel, in the written reply on behalf of the prosecution. The plea of alibi having crumbled in the face of the positive evidence of the PW1 identifying the accused person as her attacker of the time of the attack, it became superfluous and indeed an academic exercise to expect the prosecution to investigate the purported alibi put forward by accused person in the hackneyed submission of Counsel for accused person on the point in his written address. See AKPAN & ORS V. THE STATE (2002) 5 SCNJ 301 AT 311 where Katsina Alu JSC, held in the lead judgment of the Supreme Court that:-
“The eye witness evidence of PW3 Ben Friday clearly fixed the Appellant at the scene of the crime. His testimony completely broke down the weak defence of alibi put up by the Appellant. See NTAM & ANOR V. THE STATE (1968) NMLR 86: EKPE IBOR V. THE STATE (1983) 3 SC 1″
See also NGOVENS V. THE STATE (1973) 5 SC PAGE 17 AT PAGE 65 – 66”
I entirely agree with the findings of the lower court and the authorities cited in support and further add that the evidence of the PW1 pinning the Appellant down not only to the scene of crime, but seeing her actually perpetrating it and running back to her room remains a strong and deadly weapon that not only paralyzed but extinguished the seeming defence of alibi put up by the Appellant. See SOWEMIMO V. THE STATE (SUPRA).
Accordingly, issue 2 is also resolved against the Appellant
ISSUE 3
Herein the learned Counsel for the Appellant submitted briefly that the learned trial judge relied heavily on the evidence of PW2 to corroborate that of PW1 (his wife) without warning or cautioning himself and if the learned trial judge had done so, he would not have convicted the Appellant, moreso that no other witness present at the scene of crime was called by the prosecution even though evidence showed that a lot of people were there as soon as the incident happened. He relied on EZEKIEL ADEKUNLE V. THE STATE (1989) 123 SCNJ 184 AT 191 and MBENU v. THE STATE (1988) 7 SCNJ 211.
In his reply learned counsel for the Respondent submitted that while conceding that PW2 is the husband to PW1 the lower Court found merit in it and the prosecution also called two other witnesses as PW3 and PW4 as against the Appellant who only called one witness (DW2). Also citing BUHARI V. OBASANJO (2005) 130 LRCN 1925 he submitted that the prosecution does not require to call a fixed number of witnesses to prove its case and besides the learned trial judge found merit, not only in the testimony of the PW2 but also that of PW1, PW3 and PW4 as shown in the record.
Though not so stated clearly, the learned Counsel for the Appellant seem to be complaining that the PW2 is a tainted witness whose testimony ought to be received with a pinch of salt in which case the learned trial judge ought to have warned or cautioned himself in the course of consideration of such testimony.
It has been held that a tainted witness is a witness who has a grudge against the accused person. This may be by way of an old score to settle or an axe to grind or a purpose of his own to serve against the said accused person through the evidence. See MBENU V. THE STATE (1988) 3 NWLR (PT. 84) 615: OKONJI V. THE STATE (1987) 1 NWLR (PT. 52) 652: MOSES V. STATE (2006) 11 NWLR (PT. 992) 458: OGUONZEE V. STATE (1998) 5 NWLR (PT 551) 521 and OKORO V. STATE (1988) 14 NWLR (PT. 584) 181.
In the instant case the PW2 is the husband of the PW1 who is also the victim of the dastardly act of acid bath. They equally live together with the Appellant and her husband in the same premises. The PW2 did state in his evidence that the PW1 used to tell him about her altercations with the Appellant but he had always told her not to bother because he does not want trouble.
In his testimony during cross-examination he stated thus:-
“I did not see the accused pour acid on the PW1. The accused husband’s room had its door locked at the time I came out in response to PW1’s shouts. The window louvers of their room were opened. I also saw the curtain of their window rolled up. I would not know if they were asleep in their room at the material time. It was from the odour that I knew it was acid that was used in the attack on the PW1. I asked my wife at the Royal Hospital Gboko the person that poured the acid on her and she told me it was the accused and when the police come and we entered the room of the accused’s husband we perceived the odour of acid therein. The accused and her husband did not come out of their room at the time the PW1 was shouting. It was later that they came out”.
(See page 28 of the record)
“Further I went straight to the police to report the incident while the PW1 was conveyed to the hospital by my neighbor, one Samuel Okoli. When I reported the incident a policeman went to the hospital where he saw the PW1. We saw her taking treatment for the acid injury at the Royal Hospital Gboko. The policeman took her statement and later visited the scene of the incident. At the Hospital I asked the PW1 the assailant and she told me she saw the accused pour the acid on her; that the accused was dressed in a wrapping cloth at the material time; and that when the accused poured the acid on her she the accused ran back into her room. The PW1 told me that she saw the accused very well at the time she poured the acid on her”
(Underlining for emphasis)
A calm review of the evidence of the PW2 and more particularly the above reproduced portions leads to no other conclusion than the fact that it does not have the element of incredibility or bias. He did not deny the fact that he had gone inside his room with their baby when the incident occurred. He only came out when he heard his wife (PW1) shouting. He equally did not claim that he saw the Appellant pour the substance on PW1 but only repeated what PW1 told him to the effect that it was the Appellant that poured it on her and ran into her room. He was even honest enough to state that the Appellant’s door was locked when he came out in response to the PW1’s shout.
It is agreed that a trial judge must be cautious and indeed warn himself during the consideration of the evidence of a tainted witness but it must me noted that mere relationship with a victim of a crime or even the accused does not automatically create the garb of a tainted witness. See OGUNBAYO V. STATE (2007) 8 NWLR (PT. 1035) 157 and AKALANO V. (STATE) (2000) 2 NWLR (PT.643) 165.
It behoves the trial judge who is in a strategic position to see and observe such witness to assess the evidence before reaching a conclusion whether or not such witness is tainted as to warrant the trial judge warning himself on the danger of relying solely on such evidence.
In the instant case all that the PW2 did was to testify as to what transpired before and after the incident. He clearly stated that he never saw the Appellant commit the offence but rather that PW1 told him that she was the one that did it.
In the circumstance, I really see no basis for accusing the lower Court for relying heavily on the evidence of the PW2 which actually is not the case. Reference was made to the evidence of all the prosecution witness by the trial judge in his judgment without particular emphasis on that of PW2.
As earlier noted, though it is expectant for a trial judge to be on guard and warn himself during consideration of the evidence of a tainted witness especially where there is no corroboration but in this case the fact that it was not so done has no detrimental effect on the case against the Appellant.
On the whole therefore issue 3 is resolved in favour of the Appellant.
ISSUE 4
Dwelling on this issue, learned Counsel for the Appellant submitted that there were lots of material contradictions in the evidence of the prosecution witness and their statements so much so that the lower Court ought to have discharged and acquitted the Appellant.
Reference was made to the statement of the PW2 to the police that the date of the incident was on 23 – 2 – 99 while in his evidence in Court at page 24 of the record he stated that the incident occurred on 22 2 99. The same also applied to the statement of PW1 made on 24 – 2 – 99 at page 15 of the record wherein she stated that the incident took place on 22 – 2 – 99 but in her evidence in Court she said that it was on 22- 2 – 99.
Learned Counsel saw this as material contradiction and urged this Court to reject them relying on NWABUEZE V. THE STATE (1988) 7 SCNJ 248 and ARUWA V. THE STATE (1990) 10 SCNJ 5.
Learned Counsel added that while the PW1 stated that she shouted the name of the Appellant as the assailant when the substance was poured on her, the PW2 stated that he heard only “they have poured fire on me” and that it was later at Royal Hospital that PW1 told him that it was the Appellant who attacked her with the substance.
He also referred to the statement of PW1 at page 3 of the record to the effect that she had no misunderstanding with other tenants in the compound except the Appellant. But the PW2 stated to the contrary at page of the record that PW1 had a quarrel sometimes ago with one Mama Terlumun which led to chopping off of the ear of the said mama Terlumun by the PW1. Learned Counsel contended that these are material contradictions and suppression of evidence and the lower Court ought to reject their testimonies. He placed reliance on the following cases: DANJUMA ALIYU V. THE STATE (2002) 2 NWLR (PT. 644) 178: OREKPEKAN AMADI (1993) 11 SCNJ 68 and ABADU MOHAMMED V. THE STATE (1991) 7 SCNJ 114.
In his reply on this issue, learned Counsel for the Respondent submitted that the prosecution witnesses were substantially and materially consistent in their testimonies and this deserved to be believed. On the issue of conflicting dates of the incident on 22 – 2 – 99 and 23 -2-99, he submitted that it only amounts to a technical exercise because the Appellant was not misled. Moreover the incident occurred in night of 22 – 2 – 99. And the charge read that the incident occurred on or about 23 – 2 – 99 in which case the Appellant was not shown to have been misled. He referred to Section 206 of the Criminal procedure Code and SERVERO DOSSI V. R (xiii) CR APP.R 158 and JUBILEE SAGOE V. THE QUEEN (1963) 1 ALL NLR 290 to contend that mistake in date is immaterial unless the accused or Appellants is misled thereby.
Learned Counsel then concluded that no material conflicts or contradictions exist in the evidence of the prosecution witnesses as contemplated in the case of SALE DAGAYA V. STATE (SUPRA) and AUDU SRUWA cited supra by appellant’s Counsel not applicable herein.
It is trite that where the testimony of a witness in Court contradicts or is inconsistent with the previous extra-judicial statement, the Court should not only regard the sworn testimony as being unreliable but also the previous statement whether sworn or unsworn as not consisting evidence upon which it can act. See OBRI V. STATE (1997) 7 NWLR (PT. 513) 352; DOGO V. THE STATE (2001) 5 NSCQR 307. Equally where there are contradictions in the evidence of prosecution witnesses on material facts, such contradiction ought to be explained by the prosecution, through evidence, failing which the evidence relating thereto will be treated as unreliable by the Court. See AIGBADION V. STATE (1997) 7 NWLR (PT. 612) 641 and AHMED V. STATE (2000) 4 SC (PH 1) 1.
However it is not every contradiction in the testimony of witness that will render their evidence unreliable. The law allows room for minor discrepancies. See AYO GABRIEL V. STATE (1989) 12 SCNJ 33; AKPAN V. STATE (1991) 3 NWLR (PT.182) 646: DAGAYYA V. STATE (2006) ALL FWLR (PT. 212) 1666 and POPOOLA V. STATE (2011) 47 WRN 88 in EKE V. STATE (2011) 10 WRN 1 at 13 the Supreme Court per Fabiyi JSC provides an illuminating analysis as follows:-
“It is basic that testimonies of witnesses can only be contradictory when they give inconsistent account of the same event. For contradictions in the evidence of witnesses to vitiate a decision they must be material and substantial. Such contradictions must be so material to the extent that they cast serious doubts on the case presented as a whole by the party on whose behalf the witnesses testified or as to the reliability of such witnesses. In sum, minor and inconsequential contradictions which do not seriously relate to the ingredients of the offence charged should not vitiate the case of a party”
See also AFOLALU V. THE STATE (2009) 3 NWLR (PT. 1127) 160 and NASIRU V. THE STATE (1999) 2 NWLR (PT, 589) 87.
In the instant case the contention of the learned Counsel for the Appellant is that the difference in the dates the incident was alleged to have occurred constitutes material contradiction, the PW1 and PW2 having stated that it was on 22-2- 99 in their extrajudicial statements but in their sworn testimony said that it was on 23-2-99.
A careful perusal of the extra-judicial statement of the PW1, and PW2 as well as their evidence in chief at pages 42 and 47 respectively gives me the impression that the learned counsel for the Appellant got it all wrong having not taken into cognizance the sequence of events from the 22 -2-99 to 23 -2-99 When the incident occurred. The true picture can be captured in the evidence of PW1 at page 17 of the record – where she stated that:-
“On 22-2-99, I was lying down with my husband and my daughter in front of my door of No. 15 Ayangebee Street Gboko”
In her extra-judicial statement at page 3 of the record which evens explains the scenario better she stated thus:-
“On the 22 -2-99, I was lying on a mat outside our room together with my husband Emmanuel Abana and my daughter Ugochukwu Abana who is about two and half years old. At about 03.00 hours my husband took the child inside our room because it was becoming cold outside.”
What can be gleaned from the above was that the couple and their daughter layed outside on the night of 22 -2- 99 and was there till 3 am which though still termed “night” but now a new day 23 -2-99, it was then that the PW2 took their baby inside because of cold and while inside with the baby he heard the shout of the PW1.
The same goes for the testimony of the PW2 vis-‘E0-vis his own extra-judicial statement. I therefore see no basis for the allegation of contradiction by the learned Counsel for the Appellant. As a matter of fact the evidence of the Appellant as DW1 at page 43 of the record says it all and it reads:
“On the day in question, 22-2 -99, I slept in my room with my husband and around 3.00 am, I heard noise outside. Everybody co me outside”
What is more, DW2 in his testimony at page 47 of the record even provided a clearer picture on the relevance of the two dates in this case. It reads:-
“I remember 22-2-99, on that day, in the night, the accused and myself were inside our room. We locked the door. Then by 3.00 am I heard noise outside the compound”
From the foregoing there is no doubt that the flow of the sequence of events that led to the incident at about 3 am on 23-2-99 (was properly appreciated and detailed by both the prosecution and defence witnesses without contradiction, confusion or anybody being misled. They all slept on the night of 22-2-99 and at 3am of 23- 6-99 an unfortunate incident occurred. That is their story and it stands without much ado. On the aspect that the PW2 testified that he heard only “they have poured fire on me”. But PW1 on the other hand testified that PW2 heard her when she shouted the name of the Appellant at the time of the incident and that PW2 never asked her at the Royal Hospital who was responsible for the attack.
While I agree that this is correct,I quickly add that the inconsistency in this regard is of no moment as it is not material to the substance of the case against the Appellant, moreso that the PW1 and PW2 were not cross-examined on the said inconsistency.
Besides, the fact that PW1 said that PW2 who was inside the room heard her when she (PW1) shouted the name of the Appellant to me it is neither here nor there. It is for the PW2 to have said whether or not he heard her say so and not for the speaker to conclude that every spoken word was heard or comprehended by the intended hearer, particularly when such utterance was not directed at a specific person but rather a spontaneous outcry borne out of the unforeseen or unexpected pain or injury.
On the issue of one mama Terlumun having had a quarrel with the PW1 sometimes before the incident, I entirely agree with the submission of learned Counsel for the Respondent that the issue of any misunderstanding between the PW1 and mama Terlumun is immaterial to the proof of the prosecution case given the fact that the PW1 specifically pinned the Appellant down to the act which constituted the offence for which she was convicted upon the proof of guilt which proof was in no way based on the speculation or circumstantial evidence.
In the circumstance this issue is also resolved against the Appellant.
ISSUE 5
Dwelling on this issue, learned Counsel for the Appellant submitted that the prosecution did not prove its case beyond reasonable doubt and as such the trial Court ought to have discharged and acquitted the Appellant. He added that the PW1 did not see nor identify her attacker on that dry, because if, the appellant was the attacker, the PW2 would have also seen her run into her room, or heard the PW1 when she alleged that she shouted the name of Appellant as her attacker. But she simply accused the Appellant because of a catalogue of quarrels they had previously wherein the Appellant always had her way.
Learned Counsel further submitted that the conviction of the Appellant was based on a circumstantial evidence that was not strong enough to ground a conviction. He then urged this Court to discharge and acquit the Appellant.
Learned Counsel for the Respondent in his conclusion in the Respondent’s brief of argument submitted that the prosecution has the duty to prove a substantial case against the Appellant beyond all reasonable doubts and not beyond all shadow of doubts and that the duty the prosecution has duly discharged. He placed reliance on the cases of OKAROH MICHAEL V. THE STATE supra and BAKARE V. THE STATE supra. He then urged this Court to dismiss the appeal.
In a criminal trial, the burden of proof lies throughout upon the prosecution to establish the guilt of the accused person beyond reasonable doubt and it never shifts. It thus behoves the prosecution to adduce credible, cogent and substantial evidence linking the accused person to the commission of the offence charged. See ANI V. STATE (2003) 11 NWLR (PT. 830) 142: BELLO V. THE STATE (2007) 10 NWLR PT. 1043) 564: IFEJIRIKA V. THE STATE (1999) 3 NWLR (PT. 593) 59. IGABELE V. THE STATE (2006) 6 NWLR (PT. 975) 100, ABDULLAHI V. THE STATE (2008) ALL FWLR (PT. 263) 698 and CHUKWU V. THE STATE (2007) 13 NWLR (PT. 1052) 430.
This legal requirement imposed on the prosecution is made more imperative by the provisions of section 36 (5) of the 1999 Constitution which guarantees any person charged with a criminal offence the right to be presumed innocent until proved guilty. See also section 135 and 138 of the Evidence Act.
It follows therefore that where the evidence led by the prosecution is insufficient to establish the guilt of the accused person or rebut any defence raised by him, the prosecution would have failed in its duty to prove the offence charged and accused person would be entitled to an acquittal. See IFEJIRIKA V. THE STATE (1999) 3 NWLR (PT. 593) 59. In other words, if on the totality of the evidence, a reasonable doubt is created as to the guilt of the accused person the prosecution is deemed to have failed to discharge the onus of proof vested upon it by the law. It is however to be noted that proof beyond reasonable doubt…. does not mean proof beyond every shadow of doubt. Thus if the evidence adduced by the prosecution is so strong against the accused person as to leave nothing but a remote possibility in his favour and it is such that can be explained away with “though possible but not in the least probable”, then the case is proved beyond reasonable doubt. See AGBO V. THE STATE (2006) 6 NWLR (PT. 977) 845.
In the instant case, the Appellant was charged with the offence of voluntarily causing grievous hurt by dangerous means punishable under section 248(2) of the penal code.
In order to secure a conviction under the aforementioned section, the prosecution is required to prove beyond reasonable doubt that:-
(a) “The accused by his act, caused bodily pain, disease or infirmity to the complainant.
(b) He did so intentionally or with knowledge that the act would cause hurt, etc
(c) That the act was unprovoked
(d) That the accused caused the bodily harm by means of any weapon that is likely to cause death or by means of any poison or any substance which itself is deleterious to the human body to inhale, etc.”
The learned trial Judge in the course of reviewing the evidence adduced during the trial made the following findings in the judgment at page 81 of the record.
“The witnesses, PW2, PW4, and DW2 were all agreed that they perceived the odour of acidic substance at the scene of the incident. The same corrosive liquid substance called sulphuric acid found on the wooden stool was traceable to the substance that had peeled off the skin of the PW1 as described in Exhibit D and I so find. Based on the above settled fact, I am satisfied that the prosecution proved beyond reasonable doubt that a corrosion or deleterious liquid substance caused the extensive bodily injuries on the PW1 reflected in Exhibit D and brought the prosecution’s case within the shelter of section 248 of the penal code…”
On the culpability of the appellant with regard to the act that caused the injury on the PW1, the learned trial continued at line 23 to 34 as follows:
“The other key element of the offence left to be proved pertains to the person that caused the grievous hurt. The PW1 testified that she saw the accused person through the electric light of a fluorescent tube at the time she poured a bowl of the acidic substance on her resulting in the bodily injuries mentioned in Exhibit D.
This piece of evidence was not effectively challenged under cross-examination by the defence. In short nothing was asked of the PW1 to suggest that her identification of the accused person was mistaken. Even the quality of light that enabled her to see accused person at the material time was not cross-examined upon.
That the accused person was well known to the PW1 before the incident and, that PW1 used to live opposite her own room inside the some premises for a couple of months before the incident were not in doubt and I so find.”
I have carefully gone through the evidence on record and my conclusion is that I have no choice but to agree with the findings and conclusion of the lower court to the effect that the prosecution duly proved the charge against the appellant beyond reasonable doubt. It was not in dispute that a corrosive substance was poured on the PW1 on the night of the incident and that the said substance caused serious bodily harm to her including loss of sight in her two eyes as well as permanent facial and bodily disfigurement. As to whose dastardly act led to such grievous bodily harm. The evidence of the PW1 as to what transpired on the night of 22/2/99 when she laid outside with her husband (PW2) and their daughter till the early hours of 23/2/99 when the harm was done was straight forward and succinct as to how a little after the PW2 went inside with their daughter the Appellant came out of her room, passed to and from where she the PW1 laid down and then went to her room only to come out again with a plastic bowl in her hand and threw the content on her. She (appellant) then ran inside her room again and locked her door after pouring it. The PW1 then started shouting “fire fire” as a result of the burning effect of the content of the bowl on her body. She also shouted calling the name of the appellant in the process and the shout made other occupants of the premises to come outside.
This piece of evidence which is direct and positive, pinned the appellant down to the act and has nothing to do with whether or not the PW2 heard PW1 shout the appellant’s name or whether the PW2 who was inside their room with their daughter when the incident occurred would have also seen the appellant if she was actually the culprit. The contention of the learned counsel for the appellant in that regard cannot therefore hold water I am quite satisfied that the learned trial judge properly evaluated the evidence adduced by the parties and made a proper finding of fact that the prosecution proved its case beyond reasonable doubt. The said finding is not perverse or erroneous as to prompt the interference of this court.
The duty of evaluation of evidence and ascription of probative value is peculiarly within the province of the trial court and once a trial court has properly evaluated and made correct findings on the evidence led by the parties, an appellate court will be reluctant to interfere or disturb such findings unless such findings are shown to be perverse or erroneous and the onus is on the appellant to show such shortcomings. See RASAKI v. THE STATE (2011) 36 WRN 23 ARIJE v. ARIJE (2011) 11 WRN 146 and EBBA v. OGODO (2000) 10 NWLR (PT. 675) 387.
From the above, I hold that the contention of the learned counsel for the appellant that the prosecution did not prove its case beyond reasonable doubt as lacking in substance. This issue is accordingly resolved against the appellant.
On the whole, I hold that this appeal lacks merit and it is accordingly dismissed. The judgment of the High Court of, Benue State, Gboko Division, delivered by J.S. Ikyegh J.on 28-10-2004 is hereby affirmed.
ADZIRA GANA MSHELIA J.C.A: I have had a preview of the judgment read by my learned brother Oseji, J.C.A. I agree that the appeal lacks merit. For the reasons stated in the said judgment I too will dismiss the appeal and it is hereby dismissed. The decision of the High Court of Benue State, Gboko Division delivered by Ikyegh J, on 28 -10-2004 is hereby affirmed.
MOHAMMED A. DANJUMA, J.C.A: The Appellant was convicted upon the clear evidence of identification that fixed her as the culprit who poured the lethal liquid or substance on the victim – who was unexpectedly lying down on a mat where two families lived together.
The finding of fact fixing the Appellant at the scene of the crime and as the perpetrator was based on the perception of the evidence led from both the prosecution and the Defence. The trial Judge had the benefit of observing the demeanor and listening to the witnesses testify; his findings cannot be jettisoned lightly. See ALHAJI SANI MANI & 2 ORS vs. ALHAJI SHEHU M. SHANONO (2007) ALL FWLR (pt. 345) 303 at 324 par. E. AYORINDE & ORS. v. SOGUNNO & 6 ORS (2012) 4-5 SC 160.
What is more, it is the law that where from the records or evidence led, no defence is available to an Accused or Appellant, the Court or Counsel cannot speculate to make one out, where non-exists on the merit. See STEPHEN v. THE STATE (1986) 5 NWLR (Pt. 46) at 978 ratio 10. The animus was inferable from the nature of the substance used. On the whole, and having had the benefit of a preview of the draft of the Judgment just delivered by my Lord Oseji, JCA with which I agree entirely, I adopt the more detailed reasons therein contained and hold that this appeal has no merit. It fails and is accordingly dismissed.
Appearances
S.O. SIMONFor Appellant
AND
M.I. FIASE Esq. PSC (MOJ) BenueFor Respondent
