CORNELIUS OBASI v. THE STATE (2012)

CORNELIUS OBASI v. THE STATE

(2012)LCN/5364(CA)

In The Court of Appeal of Nigeria

On Friday, the 11th day of May, 2012

CA/E/348C/2009

RATIO

EVIDENCE: WHETHER EVIDENCE GIVEN BY A WITNESS IN A PREVIOUS CASE CAN BE PUT TO USE FOR THE PURPOSE OF CROSS-EXAMINATION

EVIDENCE: EFFECT OF IMPROPER EVALUATION OF EVIDENCE ADDUCED BY THE RESPONDENT

Improper evaluation of evidence adduced by the Respondent is always fatal to the prosecution’s case. See KWAGHSHIR v. STATE [1995] 3 NWLR (PT. 386) 651); SAIDU V, STATE (supra); and USUFU v. STATE [2007] 1 NWLR (Pt.1020) 944. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

CRIMINAL LAW PROCEDURE: LAW ON AN APPLICATION TO PREFER A CHARGE AGAINST AN ACCUSED

“An application for such leave is made pursuant to the provisions of the criminal Procedure code (Application to prefer a charge in the High Court) Rules 1970. Under the said rules, the application must be accompanied by a copy of the charge sought to be preferred, names of witnesses who shall give evidence at the trial, and proof of evidence (written statement) which shall be relied upon at the trial” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

CRIMINAL LAW: INGREDIENTS OF THE OFFENCE OF MURDER

The law reports are replete with authorities concerning the ingredients of the offence of murder and which the prosecution must prove beyond reasonable doubt, to sustain a charge in that regard. The ingredients are:-

(a) that the deceased died;

(b) that the death of the deceased was caused by the accused; and

(c) that the act or omission of the accused which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence.

See NKEBISI & ANOR. V. THE STATE [2010] All FWLR (Pt. 521) 1407; and OLUDAMILOLA v. THE STATE [2010] 15 WRN 1 at pages 16 and 18. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

APPEAL: EFFECT OF FAILURE OF A TRIAL COURT TO MAKE FINDINGS ON IMPORTANT ISSUES OF FACTS

It is also settled law, that where a trial court fails to make findings on material and important issues of facts or approaches the evidence called by the parties wrongly, the appellate court will have no alternative, but to allow the appeal. See OLAGUNJU v. ADESOYE [2012] 33 WRN 1 at 36. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

JUSTICES

ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

CORNELIUS OBASI Appellant(s)

AND

THE STATE Respondent(s)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 15/2/2007 by the High Court of Justice, Ebonyi State, holden at Abakaliki (hereafter simply referred to as “the lower court”), presided over by Obande Ogbuinya, J; (as he then was) and (hereafter simply referred to as “the learned trial Judge”), convicting the Appellant and two others (all of whom were charged and tried together) of the offence of murder and sentencing each of them to death by hanging.
The State (hereafter simply referred to as “the Respondent”) by a one-count Information dated 16/1/1992, charged the Appellant and two others jointly with the offence of murdering one Nathaniel Nwaekwo and which offence as stated in the Information is “contrary to section 319(1) (sic) C, C. Cap.36 Laws of Eastern Nigeria 1963 as applicable to Ebonyi State.” The offence was alleged to have been committed on 25/9/1991 at Ogbala Ishieke. The case was partly heard by two of the Judges of the High Court in the Abakaliki Judicial Division, which has jurisdiction over venue of the commission of the offence, but the trials were never determined on the merit by either of the Judges.
The trial of the Appellant and the two co-accused persons in the instant case on appeal, commenced at the lower court on 1/2/2005 (i.e. 13 clear years after they allegedly committed the offence of murder). The Appellant and each of the two co-accused persons, pleaded not guilty to the charge of murder preferred against them. The Respondent in the proof of its case against the Appellant and the two co-accused persons fielded three witnesses; while the Appellant and each of the two co-accused persons, respectively testified in their own behalf and called no other witness. After a review and evaluation of the evidence adduced before the lower court, and also having had the benefit of the addresses of the respective learned counsel for the Respondent and accused persons, the learned trial Judge found the Respondent to have established the offence of murder against the Appellant and the two co-accused persons, beyond reasonable doubt. Consequently, the Appellant and the two co-accused persons were each found guilty of the offence of murder as charged in the Information and the sentence of death by hanging duly pronounced on each of them by the learned trial Judge.

The Appellant was the 1st accused person in the Information, and being dissatisfied with his conviction and sentence appealed against the same by a Notice of Appeal dated 12/3/2007 and filed on 13/3/2007. The Notice of Appeal contains nine grounds of appeal. On 7/6/2011 the Appellant filed an Amended Notice of Appeal dated 24/5/2011. The Amended Notice of Appeal which contains eleven grounds of appeal was deemed as properly filed and served by the Order of the Court made on 6/7/2011.

In compliance with the Rules of this Court the Appellant and the Respondent filed and exchanged Briefs of Argument and which they also amended. Appellant’s Amended Brief of Argument dated 25/5/2011 and filed on 7/6/2011 but deemed as properly filed and served on 6/7/2011 as well as Appellant’s Reply Brief dated 11/2/2012 and filed on 23/2/2012 and deemed to have been properly filed and served on the same date were settled by Emeka Uwakwe Esq.; while the Respondent’s Amended Brief of Argument dated 12/8/2011 and filed on 15/8/2011 was settled by Dr. Ben O. Igwenyi (M.O.N.) learned Attorney-General of Ebonyi State. The appeal was entertained on 23/2/2012 and Emeka Uwakwe Esq., learned lead counsel for the Appellant and Ikpor-Ofe (learned DDPP) for the Respondent, respectively adopted and relied on the Briefs of Argument filed on behalf of their clients, as hereinbefore identified, in support of their positions in the appeal.

Five Issues are formulated for the determination of the appeal in the Appellant’s Amended Brief of Argument. The Issues read thus:-

1. Whether the learned trial Judge was justified in the circumstances of this case in expunging Exhibit D from the proceedings and discountenancing same for the purpose of discrediting the evidence of PW1?
2. Whether it was illegal, unconstitutional, unfair and prejudicial to the Appellant in the circumstances of this case for the learned trial judge to heavily rely on the evidence of PW2 to convict him when PW2’s name, addresses and statement to the police were not contained in the proof of evidence as required by law and when he did not testify for the prosecution in the two previous proceedings in the case?
3. Whether the evidence of PW1 and PW2 were in the circumstances of this case, credible, cogent consistent and free from reasonable doubt to warrant the conviction of the Appellant for the heinous offence of murder?
4. Whether it is permissible in criminal trial of this nature and in the face of the appellant’s plea of alibi for the prosecution to secure his conviction without tendering his extra judicial statement to the Police and without any evidence from the Investigating Police Officer?
5. Whether the learned trial judge was justified in sifting and using excerpts from the extra-judicial statements of PW1 (Exhibits B and E) which were solely tendered for the purpose of contradicting her oral evidence in court in convicting the Appellant.

The Respondent likewise formulated five Issues for the determination of the appeal in its Amended Brief of Argument. The Issues read thus:-
1. Whether from the totality of evidence adduced by the prosecution, the learned trial judge was right in holding that the prosecution established the ingredients of murder against the Appellant?
2. Whether there were any fundamental or material contradictions in the evidence of the prosecution witnesses to render them unreliable and could the expunged Exhibit “D” have made any difference in the assessment of evidence?
3. Whether the learned trial Judge erred in law to have taken into consideration the evidence of PW2 whose name and statement were not contained in the proof of evidence before the court?
4. Whether the defence of alibi could avail the Appellant and also whether the failure of the prosecution to call a particular witness, in this case an IPO is fatal to its case?
5. Whether the learned trial Judge was not justified in making use of the extra judicial statement of a witness tendered in court in the assessment of the entire evidence before the court?
The appeal will be determined upon the Issues as formulated by the Appellant as they will as of necessity provoke a consideration of the import or essence of the Issues formulated by the Respondent.

APPELLANT’S ISSUE 1
The Appellant married his Issue 1 to grounds 1, 2 and 10 of the grounds of appeal as contained in the amended Notice of Appeal.
Dwelling on the Issue, the Appellant submitted to the effect that it was wrong of the lower court to have excised Exhibit “D” from the proceedings before it, on the ground that the same had no substratum having been struck out by Chukwuma-Eneh J. (as he then was) when he upheld the no-case submission of the Appellant. It is the submission of the Appellant that the error the lower court fell into, stemmed from the fact that the court did not appreciate that the decision of Chukwuma-Eneh J. (as he then was), was set aside by the Court of Appeal on 24/6/1996 and the case re-listed for continuation. It is the further submission of the Appellant that the decision of the Court of Appeal in this regard is reported as The State v. Obasi (1998) 9 NWLR (Pt. 567) 686 and that the lower court which is deemed to have the law in its bosom, not only failed to take judicial notice of the decision, but also failed to avert its mind to the certified copy of the Order of the Court of Appeal reversing the decision of Chukwuma-Eneh J. (as he was) which was in its case file. The cases of UCCN v. Dangote Ind. Ltd (2006) 7 NWLR (Pt.980) 616 at 632; and NNPC v. Tijani (2006) 17 NWLR (Pt.1007) 29 were cited in aid. The Appellant argued that there was no justification for the lower court to have discountenanced Exhibit “D” on the ground that proceedings therein had earlier been struck out before Chukwuma-Eneh J. (as he then was) inasmuch as the charge then, bears the same number as the instant charge under which he (Appellant) was convicted.
Arguing in the alternative, the Appellant said that even if the order striking out the proceedings in Exhibit “D” had not been set aside by the Court of Appeal, it was still wrong of the lower court to have expunged the said proceedings, as Chukwuma-Eneh, J. (as he then was) never vitiated the same but only discontinued it. That the validity of the actions taken in the proceedings before Chukwuma-Eneh J. (as he then was), was therefore not impugned by the order striking the same out. That the lower court ought not to have discountenanced Exhibit “D” as it was tendered pursuant to Section 199 of the Evidence Act for the purpose of contradicting the evidence of PW1 by showing that her earlier testimony in the case was different from her present testimony before the lower court.
Still on Exhibit “D”, the Appellant submitted that it was wrong of the lower court to have raised suo motu the issue of admissibility of the said Exhibit for the first time in its judgment and to have resolved the issue without inviting him (i.e. Appellant) to address it on the issue. This is more so as the Exhibit was tendered without objection. While conceding that Exhibits “D” and “F” are the same in content (being certified copies of proceedings before Chukwuma-Eneh J. (as he then was), it is the stance of the Appellant that the lower court was very wrong to have treated them as one, inasmuch as they were tendered by different parties for different purposes. This is because different considerations apply to admissibility of a document and a lot depended on the purpose for which a document is tendered. That a document could be admissible for one purpose and still be inadmissible for another purpose, in the same proceedings. It is the submission of the Appellant that the conduct of the lower court in expunging Exhibit “D” suo motu without having the benefit of argument from him, derogated from his right to fair hearing and the case of State v. Oladimeji (2003) 14 NWLR (Pt.839) 57 was cited in aid. The Appellant further submitted that the lower court did not take into consideration the material contradictions elicited during the cross-examination of PW1 having wrongly expunged Exhibit “D” and that this has occasioned him a miscarriage of justice as his conviction was predicated on the discredited evidence of PW1. That if Exhibit “D” had been considered by the lower court while evaluating the evidence of PW1, the manifestly discredited and inherent incredibility therein, would have come to the fore and the lower court would not have ascribed any probative value to it. The Appellant urged the Court to resolve this Issue in his favour.
The Respondent submitted that the expunging of Exhibit “D” was not made an issue before the lower court and that it was being raised in this Court for the first time. The Respondent said to the effect that it is settled law that an appellant will not be allowed to argue on appeal a matter not raised at the trial and cited in aid State v. Duke (2003) 5 NWLR (Pt.813) 394 at 421. Aside from these, the Respondent in the main submitted that the learned trial Judge was right in expunging Exhibit “D”. This is because, after Chukwuma-Eneh J. (as he then was), struck out the proceedings before him, it meant that the proceedings never existed and are of no legal consequence. That the proceedings being non-existent, they could not be put to use for any purpose whatsoever including, contradicting the evidence of a witness. The Respondent also submitted to the effect that even if Exhibit “D” was wrongly expunged, the Exhibit still did not avail the Appellant as the trial Judge who personally watched the demeanour of PW1 found her evidence to be true and believed her.
In his Reply Brief, the Appellant submitted that the branding by the Respondent of his attack on the expunging of Exhibit “D’ as a new issue is a display by the Respondent of a palpable misconception of what qualifies as a new issue. That it is settled law that an issue based on an error in the decision of the trial court is not a new issue and the case of Ogunsola v. NICON 1996 1 NWLR PART 423 126, amongst others, was cited in aid.
It is clear from the proceedings of the lower court at pages 11 – 13 of the records that the tendering of the document admitted as Exhibit “D” by the lower court was as a result of the answers elicited from PW1 under cross-examination. I here under set out the relevant proceedings: –

“Qtn. In your evidence before Hon. Justice P. O. Elechi you said during cross-examination, that you went with Edoma Okpoto, a Councilor (now late) to Benjamin Ewa on the night of the incident?
Ans. I did not say so. I went to Edoma Okpoto not Benjamin Ewa.

At this point, Learned Counsel, E. Uwakwe, Esq. seeks to tender the C.T.C. of the previous proceedings before Hon. Justice P. O. Elechi in this case as an exhibit.

C. M. Ikpor-Ofe, Esq. says he is not opposes (sic) to the admission of the said document as an exhibit.

COURT: The C.T.C. of the previous proceedings before Hon. Justice P. O. Elechi in this case is admitted in evidence and marked exhibit C.

Qtn. Under cross-examination before Hon. Justice Chukwuma-Eneh on 01/02/1994, you admitted you went with others to Benjamin Ewa to report the incident?
Ans. I did not go to Benjamin Ewa.
At this stage, C. M. Ikpor-Ofe, Esq. applies for an adjournment of the case. E. U. Uwakwe, Esq. has no objection to the adjournment.
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Cross-examination of P.W.1 continued:

P.W.1. Sworn on Bible and states in Igbo Language. My name is Bridget Nwele. I am a farmer. I live at Ogbala Ishieke. I remember I was being cross-examined on 21/02/2005.
Following the witness’s answer to the last question on 21/02/2005, E. Uwakwe, Esq. seeks to tender a C.T.C. of previous proceedings in this case before Hon. Justice Chukwuma-Eneh. C.M. Ikpor-Ofe, Esq. says he has no objection to the admission of the document in evidence in this case.

COURT: The document, C.T.C. of the previous proceedings in this case before Hon. Justice Chukwuma-Eneh, is hereby admitted in evidence and the said (sic) marked as exhibit D.”

The proceedings in the case before Chukwuma-Eneh, J (as he then was), having been admitted and marked as Exhibit “D”, learned counsel for the Appellant thereafter proceeded to cross-examine PW1 with specific references to portions of the said Exhibit “D”.
At page 95 of the records, the learned trial Judge set out for himself, the task of resolving what he termed ‘the stubborn issue of the propriety or otherwise of Exhibits F, G, G1, H1, H2, J, J1, K and L,” received in evidence in the case through PW3. At the end of the exercise the learned trial Judge embarked upon, he concluded and made an order expunging the aforementioned exhibits from the evidence in the proceedings, as they were inadvertently admitted in the case through PW3. At page 98 of the records, the learned trial Judge proceeded further to state thus:-
“Besides, inadmissibility on account of non-observance of the provision of section 34(1) of the Evidence Act is not the only pitfall that bedevils exhibit F. For neatness and holistic consideration, I must place on record that exhibit F is an exact replica of exhibit D tendered through P.W.1 by the defence. Both are Siamese twins/exhibits being proceedings conducted by Chukwuma-Eneh, J. (now JSC) between 07/05/1992 to 30/03/1995. Each side extensively alluded to exhibit D in a frantic effort to contradict the evidence of the adversary. To that end, both are pivotal in the determination of this case. On that score, this court read both exhibits (F and D) between the lines. In the duo exhibits, the prosecution had closed its case and a no-case submission was made by the defence and argued. On 30/03/1995, at the tail end of those exhibits, Chukwuma-Eneh, J. (now JSC) rules as follows:

“Court: Ruling on no-case submission delivered. The information as originally laid is bad. The proceedings are thereby struck out. The accused person (sic) are remanded in prison custody to await further action from the D.P.P.”
To my mind, since those proceedings were struck out by the Court, it means that they never existed they are of no legal consequence. By law, no rights or power will germinate from those proceedings, nor will they impose any obligations on anybody. Being non-existent, exhibits F and D are not worth the papers they are in terms of the purposes, contradictions, for which they were put in evidence. This stems from the fact that no one puts something on nothing and expects it to stand as the bedrock turn of the contradictions have been knocked off.
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Having regard to the foregoing, this Court will totally turn a blind eye to exhibits F and D even as all the contradictions hinged on them will come to nought for want of substratum. In a word, I hold and declare them invalid and improper before this Court for consideration of this case. And for the avoidance of doubt, with the defunct of exhibits D, F, G, G1, H, H1, H2, J, J1, K and L, the exhibits that will be on hand for the determination of this case drop off to: A, B, C, E and M. The former ones (exhibits) not being before the Court, they cease to be documents or evidence for the determination of this case to be predicated on See IDIOK V. STATE, EBERE v. STATE (supra).

Clearly, the Respondent is not in any way aggrieved with the order of the learned trial Judge expunging the Exhibits it tendered through PW3 and which Exhibits included Exhibit “F”. The learned trial Judge having found both Exhibits “F” and “D” to be the same or identical (and apparently not persuaded with the purpose for which Exhibit “D” was tendered) resolutely decided to expunge Exhibit “D” on the ground that the proceedings from which it emanated never existed. Was the learned trial Judge right in this regard?
I am of the considered view that while the reasoning cum conclusion of the learned trial Judge to the extent that the charge that was struck out by Chukwuma-Eneh, J. (as he then was) could not have given rise to rights and obligations, can be said to be right (in that the striking out of the charge could not entitle the accused persons therein, to raise the pleas of autrefois acquit or autrefois convict at a subsequent trial), it is however stretching the law too much or too far, for the learned trial Judge to have held to the effect that the proceedings in the said charge in which evidence was led by the Respondent (and which obviously was the basis for the no-case submission made before Chukwuma-Eneh, J. (as he then was)) never existed, consequent to the striking out of the charge. The charge and proceedings therein in my considered view remained acts of the court that could not be obliterated from the record of the court, by the order striking out, the charge. Indeed the charge and proceedings in the case before Chukwuma-Eneh, J. (as he then was) are public documents and remained public documents pursuant to the provisions of Section 109(a) of the Evidence Act Cap.112 (now Section 102(a) of the Evidence Act, 2011). The provisions read thus:-
“The following documents are public documents –
(a) documents forming the official acts records of the official acts of –
(i) of the sovereign authority;
(ii) of official bodies and tribunals;
(iii) of public officers, legislative, judicial and executive, whether of Nigeria or elsewhere;”
The charge and proceedings before Chukwuma-Eneh, J. (as he then was) and which were struck out on 30/3/1995, were in the circumstances eminently tenderable as they constituted record of what transpired in the charge at all times. Chukwuma-Eneh, J. (as he then was) was seised of the charge and proceedings therein, and the evidence of PW1 at the trial (which unarguably was part of the proceedings in that charge) undoubtedly could be put to the uses as envisaged by Sections 199 and 209 of the Evidence Act (supra). The learned trial Judge in my considered view was therefore very wrong in expunging Exhibit “D” on the ground that the striking out of the charge before Chukwuma-Eneh, J. (as he then was), rendered the proceedings in the charge that was struck out, non-existent, and therefore lacking in substratum.

It is definitely settled law, that the evidence which a witness has given in a previous case can be put to use for the purpose of cross-examining the witness as to credit. See IKEOYE v. OFUNE [1985] 2 NWLR 1; and ROMAINE v. ROMAINE [1992] 4 NWLR 650 at 669. See also Sections 199 and 209 of the Evidence Act (supra) and SAIDU v. STATE [2009] 29 WRN 86.This was all the Appellant set out to do with the document admitted as Exhibit “D”, and it cannot be said that the learned trial Judge did not appreciate the purpose for which the Appellant tendered the said Exhibit “D”. It is clear from what the learned trial Judge stated at page 105 of the records that he appreciated that the Exhibit was introduced into evidence and was used for the purpose of impeaching the credit of PW1, in order to render the evidence adduced by the Respondent through the said PW1 incapable of belief or unworthy of ascription of any probative value. In this regard I reproduce what the learned trial Judge said:-
“I kick start with the issue of whether there are contradictions in the evidence of prosecution witnesses. To start with, the defence cross-examined P.W.1 in details vis-a-vis exhlbit D and made much fuss on the contradiction arising therefrom. Those alleged contradictions are, in my view, spent as exhibit D had since been discarded from this proceeding…”
(Underlining supplied by me for emphasis).

The Appellant has argued that the jettisoning of Exhibit “D” by the learned trial Judge has occasioned him miscarriage of justice as his conviction was predicated on discredited evidence. That if the learned trial Judge had considered Exhibit “D” while evaluating the evidence of PW1, the evidence of the said witness would have been seen to have been discredited and no probative value would have been attached to it. The Respondent as earlier stated submitted to the effect that questioning the expunging of Exhibit “D” is a new issue. Aside from this, the stance of the Respondent is that Exhibit “D” would not have availed the Appellant in any event because the learned trial Judge who personally observed the demeanour of PW1 found her evidence to be true and believed her. It is however not the submission of the Respondent that the Appellant did not expose inconsistencies in Exhibit “D” vis-a-vis the evidence of PW1.
The submission of the Respondent to the effect that the complaint of the Appellant in relation to expunging of Exhibit “D” is a new issue; is most disturbing. This is because it depicts a serious misapprehension of the judgment of the lower court by the Respondent. How the expunging of Exhibit “D” could ever have been made an issue at trial, is most incomprehensible, when it is appreciated that it was his judgment that the learned trial Judge re-considered the propriety of the admission of the said Exhibit in evidence, and ended up by expunging it. I will dwell no further on this issue, as the response of the Appellant to it, and as earlier highlighted, has more than adequately settled the matter.
As already stated it is glaring that the learned trial Judge never considered whether or not there were any contradictions in the evidence of PW1 vis-a-vis Exhibit “D”, talk less of coming to any conclusion about the materiality of such contradiction or contradictions. It is my considered view that the miscarriage of justice in relying on the evidence of PW1 in convicting the Appellant, is inherent or embedded in the omission of the learned trial Judge to have evaluated the evidence of PW1, in the light of the answers elicited from the witness when confronted with what she had earlier testified to, as shown in Exhibit “D”. Improper evaluation of the evidence of PW1 as in the instant case, in my considered view has conveniently translated to a breach of the Appellant’s right to fair hearing. This is against the backdrop that fair hearing and/or fair trial in a case, amongst others, entails conspicuous and adequate evaluation of the cases of the contending sides as portrayed by the evidence before the court. The learned trial Judge on the face of his judgment clearly failed to carry out an appropriate/adequate evaluation of the evidence of PW1 he relied upon in convicting the Appellant having at the onset of his judgment wrongly held that Exhibit “D” lacked any substratum. This obvious omission on the part of the learned trial Judge cannot be cured by belief of the evidence of PW1 upon her demeanour as argued by the Respondent. Improper evaluation of evidence adduced by the Respondent is always fatal to the prosecution’s case. See KWAGHSHIR v. STATE [1995] 3 NWLR (PT. 386) 651); SAIDU V, STATE (supra); and USUFU v. STATE [2007] 1 NWLR (Pt.1020) 944.
In the light of all that have been said before now, Appellant’s Issue I must be and is resolved in his favour.

APPELLANT’S ISSUE 2
Having disclosed that this Issue relates to grounds 4 and 5 of the grounds of appeal as contained in the amended Notice of Appeal, the Appellant contended that the said Issue calls into consideration the fairness, legality and constitutionality of the fielding of a witness whose particulars and statement to the Police were not contained in the proofs of evidence in the case, by the Respondent.
The Appellant submitted to the effect that pursuant to the provisions of the Ebonyi State Criminal Procedure (Miscellaneous Provisions) Edict No.19 of 1974 (hereafter simply referred to as “the CPL”), trial on Information particularly in respect of capital offences as in the instant case, must be on proofs of evidence prepared and filed by the Attorney-General. It is the stance of the Appellant that it is mandatory that the proofs of evidence should contain the names and addresses of all material witnesses the prosecution intends to call at trial. That compliance in this regard, constitutes a condition precedent to the calling of a witness at the trial. Reference was made to Section 9(2)(c) and (d) of the CPL. The Appellant submitted that the only exception, is where the prosecution decides to call as a witness someone it had earlier disclosed as a non-material witness. That in the circumstances, the CPL did not permit or empower the prosecution to call PW2 whose particulars and statement were not contained in the proofs of evidence as a witness in this case, and that the Court of Appeal decision in Kwagshir v. The State (1994) 2 NWLR (Pt. 328) 592, which the learned trial Judge relied on in allowing the said witness to testify, was inapplicable to this case. The Appellant cited the decision of this Court in Gboko v. The State (2007) 17 NWLR (Pt. 1063) 272, wherein a provision in pari materia with that of Section 9(2)(c) of the CPL was considered, and the evidence at the trial of a witness whose written statement was not contained in the proofs of evidence was expunged, as reinforcing his stance in relation to the evidence of PW2. The Court was urged to similarly expunge the evidence of PW2 in this case.
The Appellant further submitted to the effect that the Respondent in calling PW2 whose statement was not contained in the proofs of evidence, contravened his (Appellant’s) constitutional right to adequate facility for the preparation of his defence as enshrined in Section 35(6)(b) of the 1999 Constitution. This is because the extra-judicial statement of a proposed prosecution witness in the proofs of evidence, is one of the facilities afforded an accused person by law for him to use during the trial. That such a statement where available, is a potent and indispensable weapon for use with a view to discrediting and impeaching the credit of such a witness during cross-examination. In effect that the absence of the extra-judicial statement of PW2 in the proofs of evidence, constituted an unjust deprivation to him (Appellant) of the only and most fruitful means of attacking and discrediting the evidence given against him by the said PW2. It is the submission of the Appellant that the situation in the instant case was more compounded as PW2 never testified in the two previous proceedings before Chukwuma-Eneh J. (as he then was) in Exhibit “D”, and Elechi J, in Exhibit “C”. The Appellant said that the situation left a complete dearth of documentary deposition of PW2 with which to challenge his viva voce evidence in court, thereby making it impossible for him (Appellant) to take advantage of Sections 199 and 209 of the Evidence Act. The Appellant submitted that any criminal prosecution wherein the application of the inconsistency rule is impaired or out rightly excluded, as in the instant case, cannot be said to be fair in law, or to be in accordance with due process, and the case of Usufu v. State (supra) was cited in aid. The Appellant further submitted to the effect that he need not show the miscarriage of justice he has suffered as a result of the non-compliance by the lower court with the law as it relates to the absence of PW2’s statement to the Police in the proofs of evidence, and cited in aid the case of Aighobahi v. Aifuwa 2006 6 NWLR PART 976 PAGE 270 AT 290 – 291, amongst others.
The Respondent dealt with this Issue under its Issue No.3. The stand of the Respondent is to the effect that as PW2 never made a statement to the Police regarding the case, he was not listed as a prosecution witness in the proofs of evidence and that PW2’s non-existent statement could not be contained in the proofs of evidence. The Respondent further submitted that the situation in the case as it relates to PW2 is like the one in Kwagshir v. State (1994) 2 NWLR (pt. 328) 592, where this Court held amongst others, to the effect that failure to attach the proof of evidence of a witness to the application to prefer a charge does not preclude the prosecution from calling such a witness to testify. The Respondent said that the case of Gboko v. State (supra) relied upon by the Appellant, is not applicable having regard to the facts of the instant case. The Respondent submitted to the effect that the provisions of Section 9(2)(c) and (d) did not make it mandatory for the prosecution to field only witnesses whose names are included in the proofs of evidence. That at any rate, if the provisions in question did, then “to that extent it is (sic) against the intent and spirit of section 155 of the Evidence Act” and are null and void as the Evidence Act is a superior legislation to the CPL. Reliance was placed on section 4(5) of the 1999 Constitution. In the circumstances, that PW2 was competent to testify in the case and the learned trial Judge right to have taken his evidence into consideration. The Respondent also submitted that there was no infringement of Section 35(6)(b) of the 1999 Constitution in PW2 testifying, as the Appellant had the opportunity of cross-examining the witness at the conclusion of his evidence-in-chief. That the cross-examination of PW2 in the circumstances, wiped out any trace of miscarriage of justice and is also a clear compliance with section 36(6)(d) of the 1999 Constitution.
In his Reply Brief the Appellant stated that the high premium the Respondent placed on the decision of this Court in the Kwagshir case (supra), was misplaced and completely bereft of legal significance, because the said decision, had been set aside by the Supreme Court, in its decision reported as Kwagshir v. State 1995 3 NWLR PART 386 Page 651.
I have read the decision of the Supreme Court in the case of Kwagshir (supra) and it is incontrovertible that the Supreme Court (and as rightly stated by the Appellant) set aside both the judgment of this Court and that of the lower court (i.e. High Court) in the case, without upholding any part of or any of the reasoning, in the decisions of this Court and that of the High Court. In the circumstances, I am at one with the Appellant that the decision of this Court in the Kwagshir case is now not one that can be properly applied to determine the correctness or otherwise of the decision of the learned trial Judge concerning the evidence adduced by the Respondent through PW2 in this case.
It has not been suggested by the Respondent that the provisions of Section 9(2)(c) and (d) of the CPL pursuant to which the Information preferred against the Appellant and the two co-accused persons tried with him, are not in pari materia with those of the Criminal Procedure Code (Application to prefer a charge in the High Court) Rules, considered in the Gboko case (supra). In interpreting and applying the provisions dealing with application to prefer a charge, in the Gboko case (supra), this Court per Bulkachuwa, JCA; at pages 304 – 305 stated thus:-
“That the provision of the criminal Procedure (application for leave to prefer a charge in the High court) Rules, 1970 made pursuant to section 185 of the Criminal Code requires that the proof of evidence of witnesses who are proposed to be witnesses should be attached. That from the records the statement of PW5 was not included in the proof of evidence. That by the authority of Ohwovoriole v. F.G.N. (2003) 2 NWLR (pt. 803) 176 (2003) FWLR (Pt.141) 2019 the absence of the written statement of PW5 in the proof of evidence clearly makes his entire evidence inadmissible and any decision of the trial High Court based on it is a nullity.

The Supreme Court has stated the law on an application to prefer a charge against an accused person before the High Court in Ohwovoriole v. F.G.N. (2003) 2 NWLR (Pt.803) 176 per Kalgo, JSC at Page 189 where he stated:-
“An application for such leave is made pursuant to the provisions of the criminal Procedure code (Application to prefer a charge in the High Court) Rules 1970. Under the said rules, the application must be accompanied by a copy of the charge sought to be preferred, names of witnesses who shall give evidence at the trial, and proof of evidence (written statement) which shall be relied upon at the trial”
I have looked at the proof of evidence and found it to be a fact that the written statement of PW5 was not contained in the proof of evidence. This is a mandatory requirement failure of which vitiates the testimony of the PW5. I uphold the appellant’s submission on this issue accordingly, and hereby expunge the testimony of the PW5 from the records.”
In the instant case, it is clear from the records that PW2 featured for the first and last time therein, on 14/4/2005, when he was fielded by the Respondent as one of its witnesses. His names are Emmanuel Ogali. (See pages 19 – 22 of the records for his testimony under both examination-in-chief and cross-examination). The Information; Statement of Charge; Statements of PWS 1 – 8; as they pertain to the Appellant and the two others tried with him, can be found at pages 121 – 158 of the records. It is clear therefrom that PW2 was not only never listed as one of the proposed prosecution witnesses in the case, but that he was never treated as a potential witness by the Police in the course of their investigations in respect of the instant case. No wonder he made no statement to the Police and which could have been contained in the proofs of evidence.
The Respondent has stated that the situation in the Gboko case (supra) is different from that in the instant case, as PW5 in the Gboko case (supra) made a statement. That what needed to have been done in the case (i.e. Gboko’s case), in line with practice was for the prosecution to have brought “additional evidence” before the court. It would appear obvious that the Respondent by the distinction it has drawn between the situation in the Gboko case (supra), and that in the instant case, is placing a witness who was never treated as a potential prosecution witness in the course of Police investigation into the case, and therefore never made a statement to the Police; and again was therefore never listed in the proofs of evidence and who suddenly appears in a criminal prosecution without having made a statement to the Police at any time in respect of the case, such as PW2, on a better legal pedestal, than a witness who was listed in the proofs of evidence and who had previously made a statement to the Police in the course of Police investigation but whose statement did not accompany the proofs of evidence.
It is in my considered view, clear as crystal, that the stance taken by this Court in relation to the provisions of the rules governing the preferment of a charge in the Gboko case (supra) was simply informed or based on the application of the decision of the Supreme Court in the Ohwovoriole case (supra). The decision of the Supreme Court in the Ohwovoriole case (supra), is clear that an application to prefer a charge before the High Court in question must contain proofs of evidence (written statements) of proposed prosecution witnesses. Trial in a charge after the procurement of the requisite leave by the prosecution is always based on or governed by the proofs of evidence pursuant to which the leave was in the first place procured. Therefore it would require no complicated thought process to deduce that where the particulars of a witness and statement do not feature in the proofs of evidence or the name of the witness features but his statement is not contained in the proofs of evidence upon which the trial is based or being conducted, the witness in question in either of the situations, cannot give evidence. This evidently was why it was at the appellate stage that the evidence of PW5 in the Gboko case was expunged from the record by this Court.
From the analysis undertaken above, it is therefore my considered view that the distinction the Respondent has endeavoured to draw between the facts of the instant case as they relate to PW2, and those in the Gboko case, does not avail it. I must again say that I cannot fathom why a witness (such as PW2) who never featured during Police investigation into the case, and therefore could not have been contemplated by the prosecution as one of its witnesses as at the time of applying to prefer the charge upon which the Appellant was tried, and who was also never listed as a proposed witness, talk less of having made a statement that could be attached to the proofs of evidence, should be treated better than PWs in the Gboko case (supra).
The Respondent having regard to its discourse as to what the prosecution should have done in the Gboko case, would appear to clearly concede that the prosecution has to “bring additional evidence” before a proposed prosecution witness who made a statement to the Police but whose particulars are not contained in the proofs of evidence, can testify. It is worthy of note that the Respondent in charting out this procedure has not seen anything therein that is inconsistent with Section 155(1) of the Evidence Act. Indeed, it is my considered view that all the CPL has provided for, in relation to the names and particulars of witnesses and their respective statements being contained in the proofs of evidence, cannot be said to attach or relate to the competence of witnesses to testify as provided for in Section 155(1) of the Evidence Act. The provisions of the CPL in question simply provide for the manner by which all and every competent witness the prosecution wishes to make use of in a criminal trial being conducted upon proofs of evidence, should be gathered or presented at trial.
As earlier stated, the Respondent having regard to its discourse as to what the prosecution should have done in the Gboko case, would appear to clearly concede that the prosecution has to “bring additional evidence” before a proposed prosecution witness who made a statement to the Police but whose particulars are not contained in the proofs of evidence, can testify. I believe that the means by which the prosecution is to “bring additional evidence” is by way of making an application to the court to file “additional proof of evidence” containing the statement to the Police of the proposed witness through whom the additional evidence is to be adduced. The Respondent has not suggested in its Brief that it acted in line with the procedure which it knows, is the proper way to go about adducing additional evidence through a witness like PW2 who never featured in the proofs of evidence upon which the Appellant was being prosecuted, at any stage of the proceedings before the lower court.
What was responsible for this? Was this because PW2 was never treated as a potential witness in the case by the Police at the investigation level and so never made a statement to the Police? If this was the reason, was the non-making of the appropriate application in relation to PW2 excusable? Or to put it in another way does the non-making of a statement to the Police by PW2, relieve the prosecution of making an application to bring additional evidence in the proceedings and therefore leave the prosecution as it were to bring a witness from the “blues” to testify against the Appellant? This position needs to be appreciated against the backdrop of the fact that it is from the proofs of evidence that the Appellant is to know the nature of the evidence the prosecution has against him through the witnesses to be fielded and to adequately prepare his case to controvert the case set up by the prosecution through the witnesses as well as how to go about challenging the evidence of the witnesses by meaningful cross-examination. Against the backdrop of these, was the Respondent not duty bound to have made the appropriate application in relation to PW2 and to have exhibited thereto an additional proof of evidence stating the gist or summary of the evidence it intended to adduce through PW2, and disclosing in the application, the reasons for the inability to include any statement made to the Police by the said PW2. Indeed I am of the considered view that it was because the Respondent was of the settled view that any witness can be called to testify on its behalf in a prosecution being conducted on proofs of evidence whether or not such a witness had been listed as a proposed witness in the Information and also whether or not the statement of such a witness is contained in the proofs of evidence, that the Respondent did not see the need for the Police to have taken the statement of PW2 in connection with the case, even at the time he surfaced or was discovered, and to have thereafter included the statement in the “additional proof of evidence” it would have sought the indulgence of the court to adduce. The offence the Appellant is alleged to have committed as disclosed in the Information happened on 25/9/1991. It was on 14/4/2005 (at least 13 clear years thereafter) that PW2 (who was never treated as a potential prosecution witness in the case during Police investigation) came to court from nowhere as it were to testify in the case. lt is my considered view that if the Respondent had been of the conviction that it was duty bound to have placed the particulars and statement of PW2 before the court in compliance with the CPL, before the trial of the Appellant could be said to be upon the proofs of evidence pursuant to which leave to prefer the charge was granted, then the Respondent would have ensured that this was done by applying to “bring additional evidence” through PW2 at the trial. It is by or through an application in that regard, that advance notice of the nature of evidence PW2 is to give, including his statement (in that the Respondent should have ensured that PW2 made a statement to the Police immediately he surfaced), would as of necessity have been disclosed. It is in such statement that PW2 would have disclosed why he was making his statement in the case for the first time so late (i.e. clear 13 years after the
Appellants and his co-accused allegedly committed the offence), and whatever reasons he had for that would have been the subject of Police investigation to determine the veracity of the same.
What happened in the instant case, is that the Respondent instead of acting as stated above, at the tail end of the examination-in-chief of PW2 asked him a question which elicited the following answer:-
“I did not make statement to the police because Chief A. B. Nwele influenced my not making my statement.” (See page 19 of the record).
In his judgment, the learned trial Judge dwelling on “competence” of PW2 to testify “on the ground that he did not make a statement to the Police and his name not stated among the witnesses in the proof of evidence”, aside from relying on the Court of Appeal decision in the Kwagshir case (supra), apparently not only gave serious weight to the reason PW2 advanced for not making a statement, but held the Appellant to have accepted the truthfulness of the reason given by PW2, because the Appellant did not cross-examine PW2 on the matter of Chief A. B. Nwele. In this regard, the learned trial Judge stated at page 101 of the record thus:-
“And to top it all, P.W.2 rounded off his evidence-in-chief by intimating the court why he did not make statement to the Police. He stated that Chief A. B. Nwele, a recurring actor in the prosecution’s case, influenced or prevented him from making his Statement. Curiously, P.W.2 was not cross-examined on that point. The import of the law is that the defence accepts, lock, stock and barrel, the evidence of P.W.2 on the interference of Chief A. B. Nwele vis-a-vis his not making extra-judicial statement to the Police…”
It is my considered view that the learned trial Judge completely missed it, by holding the Appellant as accepting “the interference of Chief A. B. Nwele vis-a-vis PW2’s not making extra-judicial statement to the Police. There can be nothing farther from the truth. The question of PW2 having not made a statement previously because of interference of Chief A. B. Nwele was clearly one between the Police, PW2 and the said Chief Nwele. It was for the Respondent to establish that the reason given by PW2 for having not previously made a statement to the Police is true. The truthfulness of the reason is definitely not proved by simply repeating it. There was no evidence from the Respondent establishing the truthfulness of the excuse given by PW2. I am of the considered view that lack of cross-examination by the Appellant in respect of a fact that is not for him to establish in the first place, cannot properly be taken as an admission by him of that fact. The bottom line of all that has been said so far, is that the Respondent, even at the stage or time PW2 surfaced to give evidence in the case, should have procured his statement and to have included the same in the additional proof of evidence that ought to have been filed to enable the said PW2 testify in the trial of the Appellant which was being conducted upon proofs of evidence, placed before the court by the Respondent itself. It is in my view obvious from all that has been said that the Respondent by the peculiar manner it chose to place the evidence of PW2 before the lower court, clearly did not comply with due process (i.e. the provisions of the CPL applicable to prosecution on proofs of evidence) despite the fact that there was a procedure in law by which it could have complied with the same, if it were so minded. It is my further view that the peculiar manner by which the Respondent chose to place the evidence of PW2 before the lower court, indeed was unfair inasmuch as there was a denial to the Appellant of the statement of PW2 to the Police which glaringly and as rightly stated by the Appellant, is a potent “weapon” for adequate cross-examination. The unfairness of the manner by which the Respondent chose to place the evidence of PW2 before the lower court, in my considered view is not ameliorated by the fact that the Appellant cross-examined PW2. A fortiori the miscarriage of justice that has occasioned the Appellant by the unfair manner the Respondent placed the evidence of PW2 before the lower court, cannot be and has not been wiped off by the cross-examination undertaken by the Appellant. This is against the backdrop that PW2 in the first place had no business giving evidence in the case as he was only not presented before the lower court by due process, but no attempt was even made by the Respondent to have the proof of evidence and statement of the said PW2 (which was procurable but was not procured) placed before the lower court and also made available to the Appellant at any time before he (PW2) testified.
From all that has been said above, and having regard to the facts of this case; and applying the decision of this Court in the Gboko case (supra), to the instant case, I am constrained to and I hereby expunge from the records, the totality of the evidence of PW2. In the circumstances, Appellant’s Issue 2 is accordingly resolved in his favour.

APPELLANT’S ISSUE 3.

Having disclosed that this Issue relates to grounds 3, 6 and 9 of the grounds of appeal contained in the amended Notice of Appeal, the Appellant submitted that the lower court seriously erred in law by convicting him upon the evidence of PWS 1 and 2 having regard to the patent unreasonableness, incredibility and irreconcilable conflict in the evidence of the said witnesses. The Appellant highlighted the instances of inconsistencies, contradictions, and/or incredibility, in the evidence of PWS 1 and 2 his Brief of Argument. The Appellant submitted to the effect that a court is enjoined to act on credible evidence only and that a witness who is capable of deliberate falsehood is not deserving of any iota of credibility and cited in aid the cases of Omozeghian v. Adjrho 2006 4 NWLR PART 969 PAGE 33; and Agbo v. State 2006 6 NWLR PART 977 PAGE 545 AT 572-573 amongst others.
Dwelling on this Issue, the Respondent submitted to the effect that there were no contradictions in the evidence of its witnesses and that even if there were; such contradictions were not material ones. Cases considered to be relevant on the question of “material contradiction” were cited in the Brief of Argument of the Respondent.
In my considered view, the appropriate approach to this Issue, in the light of the earlier resolution of Appellant’s Issues 1 and 2 in his favour, actually is not to embark on the exercise of determining whether or not there are irreconcilable differences in the evidence of PWS 1 and 2 (the evidence of PW2 having been expunged from the record), but whether or not the evidence of PW1 (which as earlier stated was not properly evaluated by the learned trial Judge having wrongly expunged Exhibit “D” at the onset of his judgment), established the offence of murder against the Appellant beyond reasonable doubt. I have not mentioned PW3 because it is clear from the proceedings that he was only called for the purpose of tendering some document and which documents after their initial admission as Exhibits, were later expunged by the learned trial Judge in his judgment. Again and as hereinbefore stated in this judgment, the Respondent is not in any way aggrieved by the expunging of the Exhibits it tendered through PW3, by the learned trial Judge.
The law reports are replete with authorities concerning the ingredients of the offence of murder and which the prosecution must prove beyond reasonable doubt, to sustain a charge in that regard. The ingredients are:-
(a) that the deceased died;
(b) that the death of the deceased was caused by the accused; and
(c) that the act or omission of the accused which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
See NKEBISI & ANOR. V. THE STATE [2010] All FWLR (Pt. 521) 1407; and OLUDAMILOLA v. THE STATE [2010] 15 WRN 1 at pages 16 and 18.
It is also settled law, that where a trial court fails to make findings on material and important issues of facts or approaches the evidence called by the parties wrongly, the appellate court will have no alternative, but to allow the appeal. See OLAGUNJU v. ADESOYE [2012] 33 WRN 1 at 36.
I am of the considered view that in the light of the positions of law as stated above, and also in the light of the earlier resolution of Appellant’s Issue 1 in his favour (the issue relates to the improper evaluation of the evidence adduced by the Respondent through PW1), it is more than obvious that the Respondent cannot be said to have established all the three ingredients of the offence of murder against the Appellant beyond reasonable doubt. This is particularly so as the improper evaluation of the evidence of PW1 by the learned trial Judge having wrongfully expunged Exhibit “D” robbed whatever evidence the Respondent led through the said PW1 linking the Appellant as a participant in the event that resulted in the death of the deceased, without any basis.
In the light of the above, Appellant’s Issue 3 is resolved in his favour.
I do not see the need for the consideration of the remaining two Issues formulated by the Appellant for the determination of the appeal, especially, having found the Respondent not to have established the offence of murder the Appellant was convicted of and sentenced to death for, whilst considering Appellant’s Issue 3.
In the final analysis, the appeal is meritorious and it succeeds. Accordingly, appeal is allowed. The decision of the lower court in the judgment delivered on 15/2/2007 convicting the Appellant for the offence of murder and sentencing him to death by hanging, is set aside. In its place a judgment finding the Appellant not guilty of the offence of murder is entered and the Appellant – Cornelius Obasi is hereby discharged and acquitted.

ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I was privileged to read in draft the judgment of my learned brother, Lokulo-Sodipe – JCA, just delivered. My learned brother has considered and satisfactorily resolved the three main issues that constitute the core of this appeal.
I agree with his reasoning and conclusion that this appeal is meritorious and ought to succeed and I adopt same as mine. Accordingly the appeal is allowed. The decision of the lower court in the judgment delivered on 15/2/2007 convicting the Appellant of the offence of murder and sentencing him to death by hanging is set aside. In its place a judgment finding the Appellant not guilty of the offence of murder is entered. The Appellant Cornelius Obasi is hereby discharged and acquitted.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have the opportunity of reading before now the judgment just delivered by my learned Brother LOKULO-SODIPE JCA. He has so carefully dealt with the law as well as the facts. I find it expedient to associate myself wholly with his reasoning and conclusions reached thereto.
I too find that the appeal is meritorious and it is hereby allowed. I equally abide by the consequential orders as made in the lead judgment.

Appearances

Emeka Uwakwe leading P. C. OgbojiFor Appellant

AND

C. M. Ikpor-Ofe (DDPP, MOJ, Ebonyi State)For Respondent