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EHIGIEGBA v. STATE (2020)

EHIGIEGBA v. STATE

(2020)LCN/14322(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Thursday, June 04, 2020

CA/B/245CB/2009

Before Our Lordships:

Samuel Chukwudumebi Oseji Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

OZIENGBE EHIGIEGBA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER  OR NOT WHERE THERE ARE CONTRADICTIONS IN THE EVIDENCE OF THE PROSECUTION AND THE CONTRADICTIONS GO MATERIALLY TO THE CHARGE WHICH CREATES DOUBT, THESE DOUBTS SHOULD BE RESOLVED IN FAVOUR OF THE ACCUSED PERSON

Firstly, it must be pointedly stated that it is long settled by a plethora of authorities that once there are material contradictions and gaps in the case of the prosecution and there is doubt as to whether or not the evidence against the accused may or may not be planted, these doubts should be resolved in favour of the accused and the prosecution’s case will be regarded as not proved beyond reasonable doubt. See MILLA VS. THE STATE (1985) 3 NWLR (PT. 11) 1070 and ALBERT IKEM VS. THE STATE (1985) 1 NWLR (PT. 2) 378. In STATE VS. EREYITOMI (2017) LPELR – 43573 (CA) at pages 48 – 49 this Court held thus:
“The law is that if there are contradictions in the evidence of the prosecution and the contradictions go materially to the charge, doubt will be created and the benefit of it must be given to the accused person in which case he will be discharged. In other words, where there are inconsistencies in the prosecution’s evidence such as cast reasonable doubt on the guilt of the accused person, such accused person should be given benefit of doubt.”
See also ARCHIBONG VS. THE STATE (2006) 5 SCNJ 202 wherein it was held that, if there is any doubt as to the guilt of an accused person arising from the contradictions in the prosecution evidence, it must be resolved in favor of the accused. But the contradictions and inconsistencies must relate to the fundamental and core issues. PER OSEJI, J.C.A.

WHETHER OR NOT IT IS EVERY CONTRADICTION IN THE TESTIMONY OF WITNESSES THAT WILL RENDER THEIR EVIDENCE UNRELIABLE

Thus it is not every contradiction in the testimony of witnesses that will render their evidence unreliable. The law allows room for minor discrepancies. See AKPAN VS. THE STATE (1991) 3 NWLR (PT. 182) 641; DAGAYYA VS. THE STATE (2006) All FWLR (PT. 212) 1666; POPOOLA VS. THE STATE (2011) 47 WRN 88. In EKE VS. THE STATE (2011) 10 WRN at page 13, the Apex Court per Fabiyi JSC elucidated on the issue 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 testifies or as to the reliability of such witnesses. In such 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 VS. THE STATE (2009) 3 NWLR (PT. 1127) 160; NASIRU VS. THE STATE (1999) 2 NWLR (PT. 589) 87. PER OSEJI, J.C.A.

WHETHER OR NOT IT IS EVERY DISCREPANCY IN THE EVIDENCE OF THE PROSECUTION WITNESS THAT AMOUNTS TO A CONTRADICTION

It is indeed not any and every discrepancy or inaccuracy in the evidence of prosecution witnesses that amounts to contradiction, especially where the witnesses are substantially saying the same thing. It is only material contradictions or fundamental inconsistencies that are relevant. See DIBIE & ORS. VS. THE STATE (2007) 9 NWLR (PT. 1038) 30; GALADIMA VS. THE STATE (2017) LPELR – 43469 (SC); KALU VS. THE STATE (1988) 4 NWLR PT.90 503; ISAH VS. THE STATE (2017) LPELR 43472 (SC). PER OSEJI, J.C.A.

WHETHER OR NOT IT IS THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND MAKE PRIMARY FINDINGS OF FACT

​It is now an established principle of procedural law that it is the duty of the trial Court to evaluate evidence and make primary findings of fact. This duty, unless it is shown not to have been done according to laid down principle of law, an appellate Court cannot interfere with such findings. See IBANGA VS. USANGA (1982) 5 SC 103; WOLUCHEM VS. GUDI (1981) 5 SC 291; IGAGO VS. THE STATE (1999) 14 NWLR (PT. 637) page 1; ONUOHA VS. THE STATE (1998) 5 NWLR (PT. 548) 118; AKINLOYE VS. EYIYOLA (1968) NMLR 92. PER OSEJI, J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF FACT BY THE TRIAL COURT
The attitude of the appellate Court to evaluation of evidence by the trial Court is that where a trial Court unquestionably evaluates adduced evidence and appraises the facts, it is not the business of the appellate Court to substitute its own view with those of the trial Court. What the Appellate Court is required to do is to find out from the records whether there is evidence on which the trial Court could have acted and on which the findings are based. In this regard, ascription of probative value to the evidence of witnesses is pre-eminently within the purview of the trial Court which saw and heard witnesses and which an appellate Court will not highly interfere with, unless for compelling reasons. See AROWOLO VS. OLOWOKERE (2011) 11 – 12 SC (PT. 11) 98; BFI GROUP CORPORATION VS. BUREAU OF PUBLIC ENTERPRISES (2012) 7 SC (PT. III) page 1. PER OSEJI, J.C.A.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Edo State, sitting in Benin City and delivered on the 31st day of March, 2009 wherein the appellant and six other accused persons was convicted and sentenced to five years imprisonment having been found guilty on a two count charge of conspiracy and attempted murder under Section 320 (2) of the Criminal Code Cap 48, Vol. 11 laws of the Bendel State of Nigeria, 1976 as applicable in Edo State.

​The facts of the case as presented by the Respondent is that on the 26th day of June 2002, one Chief Imade Isherhiehien left his house at No. 19 Osaretin Street, Benin City to Ugbor Village, to pick up three other fellow members of the Ugbor community land inspectors and they left in his car to inspect a particular boundary of land between Ugbor community and lyayi. As they were going along Miller road, Ugbor they sighted a group of people pursuing them from behind. At a stage under a mango tree, Chief Imade stopped and parked the car and they all came down. As soon as they parked the car, one Friday Osadolor (1st accused person) leading

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the other suspects got to them and attacked Onaiwu Idurobo (PW1), 1st accused later sent his sister Kate Osadolor (7th accused person) to bring him a machete, which she immediately complied with and gave the machete to 1st accused person. 1st accused on receiving the machete tried to cut PW1 on the neck, but PW1 used his left hand to block the machete which led to his left hand being cut off, immediately after, all the suspects ran away from the scene. The said Chief Imade Isherhiehien with two other members of the Ugbor land inspectors reported the case immediately at Ugbor police station and later rushed the victim to the hospital for treatment.

At the trial, the prosecution called five witnesses and tendered nine exhibits to prove its case. The Appellant who was the 3rd accused along with the 2nd, 4th, and 5th accused persons at the trial denied the charge against them. At the conclusion of trial and adoption of written address by counsel for both parties, the Appellant along with others were convicted for attempted murder and sentenced to 5 years in imprisonment.

​The Appellant herein was not satisfied with the said judgment and consequently filed a

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notice of appeal on the 11/5/2009. The Appellant brief of argument was filed on 15/9/2009.
The Respondent herein filed its brief of argument on 05/5/2020.
The parties adopted and relied on their respective brief of argument at the hearing of the appeal on the 5/05/2020.

From the three grounds in the notice of appeal, the appellant in his brief of argument formulated three issues for determination. To wit:
1. Whether the evidence led by the prosecution as to the role of the Appellant in the alleged offence for which he was convicted is not materially contradictory and ought to be rejected.
2. Whether the evaluation of the evidence before the trial Court in convicting the Appellant for attempted murder under Section 7(b) of the Criminal Code is proper and did not occasion a miscarriage of justice.
3. Whether the evidence led by the prosecution can ground a conviction for attempted murder.

The Respondent herein adopted the issues for determination as raised in the Appellant’s brief of argument.

​I shall adopt the three issues as formulated in the Appellant’s brief of argument in the consideration of this

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appeal.

APPELLANT’S SUBMISSION:
ISSUE ONE
Herein, Learned counsel to the appellant submitted that a piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated. He added that it is materially contradictory when the evidence are by itself inconsistent such that it would be apparent that some of the witnesses told a lie, which will make it unsafe to convict an accused person on such evidence. On this he cited the case of OLAYINKA V. STATE (2007) NWLR (PT 1040) 561 and UWAEKWEGHINYA V. STATE (2005) 4 ACLR 5 AT PARAGRAPHS 30-35.

It was further submitted that PW1 and PW3 including the 6th Accused statement Exhibit A and Exhibit G (statement of PW1 through his lawyer to the police) are materially contradictory as to specific role allegedly played by the Appellant which formed the basis of the trial Court’s conviction and that the trial Court ought not to rely on them or preferred anyone to the other. He added that the material contradictions in the evidence of the prosecution are such that ought to make the Court reject them.

​It was contended that the Appellant did nothing to aid the 1st

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Accused, never laid in wait in the bush, never surrounded the PW1 and there is no credible shred of evidence linking Appellant to the offence. He added that there was no evidence of any activity carried out by the Appellant in aid of the commission of the offence.

It was further contended that the pieces of evidence are different and opposite which cannot be correct and unbelievable. He added that they are materially contradictory, unreliable and ought to be rejected by the trial Court for being unsafe to convict on such. He relied on the case of ANEKWE V. STATE (1998)1 ACLR 426 AT 434 PARAGRAPH 40 45.

He argued that the conviction of the Appellant on the evidence of the PW1 in this case ought to be rejected and not to be allowed to stand and the rejection of the pieces of contradictory evidence leaves nothing in aid of the prosecution and knocks them off their case against the Appellant.

​Arguing on issue 2, learned counsel submitted that the evidence led by the PW1 on the issue of the involvement of the Appellant in the crisis that led to his injury is totally inconsistent with the evidence led by the PW3 who was said to witness the same event

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and also Exhibit A the statement of the Accused Person in the charge who also witnessed the same event as shown from the Summary of facts above.

It was further submitted that the trial Court owe a duty to properly evaluate these pieces of evidence rather than placing undue reliance on the evidence of PW1 with the version that the Appellant. He added that where the trial Court fails to carry out a proper evaluation of the evidence, which failure occasioned a miscarriage of justice to the Appellant, the Appellate Court will intervene to do justice to the Appellant. On this, he cited ANEKWE V. STATE (1998)1ACLR 426 AT 434.

It was posited that the prosecution has failed to established the positive activities or omission of the Appellant that encouraged or aided the 1st Accused to inflict injury on the PW1 and that the Appellant was not there when PW1’s hand was cut. He added that the Appellant was not and could not have been caught under Section 7(b) of the Criminal Code or any other Section at all for liability for the crime of attempted murder.

​On issue 3, learned counsel submitted that to succeed in a charge of attempted murder, the prosecution

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must establish that the accused had an intention to commit the offence of murder and has put that intention into execution by means adapted to its fulfilment and has manifested that intention by some overt act but has not executed the intention to the extent of committing the offence.

It was further submitted that there was no evidence as to the foreknowledge of the Accused Persons that PW1, PW3 & 6th Accused Person will be coming to Miller Road Junction as to give an indication to the 1st Accused or the Appellant to adapt any means of waylaying the PW1 at Miller Road Junction as alleged, so as to fulfil that intention. He added that the evidence of PW1 showed that he never even planned for the trip to Miller Road, he was in his house clearing, when spontaneously a message came from the elders to go and see to the boundary lines of the Community in Ugbor. On this he relied on DIM V. ENEMUO (2009) 10 NWLR (PT 1149) PAGE 393 AT 396 PARAGRAPH G.

He contended that from the evidence of the alleged singular cut on the hand and act of running away thereafter, it is deducible that 1st Accused never intended to kill because if he had the intention to

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kill, he would not have spared further cuts, since he was unhindered, he would have fulfilled his intention or perhaps strived to fulfil it unless prevented by some intervening factors, which was not the case.

With particular reference to the case of AMAYO V STATE (2008) 6 ACLR PAGE 416 AT 434, it was posited that in a case of attempted murder, nothing less than an intention to kill will do and it must be established that there was a specific intention to kill by reason of the circumstances. He added that if there is no evidence to prove the offence charged, there will be no basis to hold the Appellant under Section 7(b) guilty of having aided the commission of an offence that was not proved.
It was urged on this Court to allow this appeal and set aside the conviction and sentence of the Appellant.

RESPONDENT’S SUBMISSION:
ISSUE ONE
Herein, Learned counsel to the Respondent submitted that there are no contradictions as to the facts, which led to the conviction of the Appellants as persons who aided the 1st accused person towards the commission of the offence of Attempted murder and that the trial Court was right in convicting

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the Appellants for the key roles they played in the attempted murder of the PW1 by the 1st accused person in light of the totality of the evidence adduced before the trial Court under Section 7 (b) as principal offenders who aided the 1st accused person to carry out the offence that was committed, as justice was served and there was no miscarriage of justice occasioned by their conviction.

It was further submitted that the evidence alleged to be in contradiction are not even the core, fundamental issues that are sufficient to warrant a reversal of the judgment as sought by the Appellants, nor can they lead to a miscarriage of justice on their conviction, as to their roles played in the event that lead to the attempted murder of the PW1.

It was argued that the accused persons were in agreement to attempt to kill PW1 and their presence at the scene of the crime as persons who held him down endangered and indeed threatened the life of the PW1.

​On issue two, learned counsel submitted that it is the duty of the trial Court to evaluate evidence by placing them on imaginary scale and see which side the evidence tilts to, they are best suited to determine

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and properly evaluate the evidence before it because they are able to see the demeanor of witnesses who testified before it. On this he cited the case of OLANREWAJU AYAN V. STATE NWLR (2013) 15 (Pt. 1376) 34.

It was further submitted that from the evidence adduced at the trial Court, the evidence of the PW1 was credible, consistent, direct, and was not impeached during the process of cross-examination, as to the presence and roles of the Appellants for his attempted murder which led to the cutting off of his left hand by the 1st accused person. Adding further he stated there was evidence corroborating the identification of the Appellants by PW3 as the persons who attacked the PW1.

He contended that the Court evaluated the evidence of the prosecution and placed them alongside that of the accused persons which were inconsistent and unreliable. He added that in line with the evidence adduced by the prosecution witnesses, PW1, and PW3 which are credible, direct and not materially contradictory neither is there any substantial disparagement of evidence of the particulars.

​It was further submitted that the trial Court had the opportunity of playing its

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primary role of accessing the evidence of the prosecution and coming to a conclusion of finding them guilty for the offence of attempted murder and there after convicting and sentencing of the Appellants in line with Section 7(b) of the Criminal Code did not occasioned any miscarriage of justice as they were principal offenders to the offence of attempted murder.

On issue 3, learned counsel submitted that it has been established in various authorities that to prove the offence of attempted murder, the prosecution has to prove the deliberate or reckless behavior with extreme disregard for human life.

It was also submitted that the pieces of evidence reveals the clear intention of the accused and appellants for the PW1 be killed on that day from when he was dragged down to their assurance of telling him that that was his last day, to when he was been held down and surrounded and finally to when the final blow of attempting to kill him by the 1st accused person. He added that it was clear and can be inferred that there was credible evidence that proved that the 1st accused intention was to murder PW1 and Appellant aided the commission of the offence by

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its actions and inactions and that proving beyond reasonable doubt is not proof to a hilt or proof beyond all iota of doubt. In support of this stance, he cited the case of NASIRU V. THE STATE (1999) 1 NWLR (Pt.589) 87 at 98 SC and BAZIL AKALEZI V. STATE (1993) 2 NWLR (Pt. 273. Pg.

It was therefore urged on this Court to uphold the trial Court’s conviction of the Appellant and dismiss this appeal in its entirety as same is frivolous and lacking in merit.

RESOLUTION OF ISSUES:
I have read the record of appeal, the judgment of the trial Court and the briefs of argument filed by the parties. I shall address issues one and two together. That is (a) whether the evidence led by the prosecution as to the role of the Appellant in the alleged offence for which he was convicted is not materially contradictory and ought to be rejected; and (b) whether the evaluation of the evidence before the trial Court in convicting the Appellant for attempted murder under Section 7(b) of the Criminal Code is proper and did not occasion a miscarriage of justice.

​Now the Appellant’s grouse is that the learned trial Judge placed undue reliance on the evidence of

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PW1 and PW3 when they are materially contradictory with each other and with Exhibit A (extra judicial statement of the 6th accused person) and Exhibit (G) (the petition written to the police by the PW1 through his lawyer). Secondly that the learned trial Judge did not properly evaluate the evidence placed before the Court and in the circumstance cause a miscarriage of justice on the Appellant.

Firstly, it must be pointedly stated that it is long settled by a plethora of authorities that once there are material contradictions and gaps in the case of the prosecution and there is doubt as to whether or not the evidence against the accused may or may not be planted, these doubts should be resolved in favour of the accused and the prosecution’s case will be regarded as not proved beyond reasonable doubt. See MILLA VS. THE STATE (1985) 3 NWLR (PT. 11) 1070 and ALBERT IKEM VS. THE STATE (1985) 1 NWLR (PT. 2) 378. In STATE VS. EREYITOMI (2017) LPELR – 43573 (CA) at pages 48 – 49 this Court held thus:
“The law is that if there are contradictions in the evidence of the prosecution and the contradictions go materially to the charge,

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doubt will be created and the benefit of it must be given to the accused person in which case he will be discharged. In other words, where there are inconsistencies in the prosecution’s evidence such as cast reasonable doubt on the guilt of the accused person such accused person should be given benefit of doubt.” See also ARCHIBONG VS. THE STATE (2006) 5 SCNJ 202 wherein it was held that, if there is any doubt as to the guilt of an accused person arising from the contradictions in the prosecution evidence, it must be resolved in favour of the accused. But the contradictions and inconsistencies must relate to the fundamental and core issues.
Thus it is not every contradiction in the testimony of witnesses that will render their evidence unreliable. The law allows room for minor discrepancies. See AKPAN VS. THE STATE (1991) 3 NWLR (PT. 182) 641; DAGAYYA VS. THE STATE (2006) All FWLR (PT. 212) 1666; POPOOLA VS. THE STATE (2011) 47 WRN 88. In EKE VS. THE STATE (2011) 10 WRN at page 13, the Apex Court per Fabiyi JSC elucidated on the issue as follows:
“It is basic that testimonies of witnesses can only be contradictory when they

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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 testifies or as to the reliability of such witnesses. In such 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 VS. THE STATE (2009) 3 NWLR (PT. 1127) 160; NASIRU VS. THE STATE (1999) 2 NWLR (PT. 589) 87.

​In the light of the above set out position of the law, I have compared the evidence of the PW1 and PW3 with a view to ascertain if there are material contradictions. I will however agree with the finding of the trial Court to the effect that there is no material contradictions or fundamental discrepancies in the evidence of the two prosecution witnesses. The only discrepancies noticed relates to the fact that while the PW1 testified that when they got to Miller road, some boys came out of their hiding place and

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surrounded their vehicle and he (PW1) was dragged out of the vehicle by the boys and when they held him, they said to him, “today is your last day.”
On the other hand, the PW3 testified to the effect that on that 26/6/2002 as they got to a point where there was a mango tree the driver of the vehicle, Mr. Imade Isermienrhien (6th accused) stopped the car and they all came down and when they came down, some people started fighting with PW1, (Onaiwu Idurobo).
​The point of divergence, which relates to whether PW1 was dragged down by the men who surrounded the car and told him that today is his last day as against PW3’s story that when the car stopped they all came down and some people started fighting PW1 does not constitute fundamental inconsistency or contradiction in their evidence. The fact remains immutable that when they stopped the car some people came out and started fighting the PW1. It is not in dispute that PW1 was the target of the attack and his personal experience on that day may be more detailed from what PW3 saw or heard. The fact remains that on that fateful 26/6/2002 when the car conveying the PW1, PW3 and one other

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stopped near a mango tree along Miller road, a group of people emerged towards them in an unfriendly manner which eventually ended in chopping off one of the hands of PW1. There is no material contradiction or inconsistency in the evidence of PW1 and PW3 with regard to this important aspect of the incident that occurred on 26/6/2002, which is the subject matter of the charge against the Appellant.
As per Exhibit “A” (statement of the 6th Accused person). The 6th Accused person did not go through the whole trial. Rather he was discharged and acquitted on a no case submission. He was not at any time made a witness for the prosecution so his extra-judicial statement can only be used to compare and contrast his evidence in Court and cannot be used to assess whether the prosecution witnesses gave evidence that is inconsistent with or contradict the content of the extra-judicial statement of the 6th accused person. In other words in determining whether there are material contradictions in the evidence of the prosecution witnesses, Exhibit “A”, the extra judicial statement of an accused person is totally out of the picture.

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With regard to Exhibit “G”, (petition written on behalf of the PW1 to the police). Learned counsel for the Appellant had also urged this Court to hold that the said Exhibit “G” constitutes material contradiction with the evidence of PW1 and PW3 with regard to the specific role allegedly played by the Appellant which formed the basis of his conviction by the trial Court and as such should not be relied upon.
​Firstly, it must be pointed out that Exhibit “G” is not the extra-judicial statement of PW1 but rather a petition to the police requesting for a proper investigation into a case of attempted murder for which the PW1 was the victim. The said petition was dated 20/7/2002. In response to the said petition, Exhibit G, police investigation team was set up and this resulted in the PW1 making a statement on 30/7/2002. The same goes for the PW3. It is therefore rather strange that the Appellant’s counsel now relies on a petition to raise the issue of material contradiction rather than the extra judicial statement of the prosecution witnesses made subsequent to the petition and rightly during the course of police

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investigation leading to the charge against the Appellant.
The Court therefore finds the submission of learned counsel to be out of place and consequently of no moment. Therefore having examined the testimonies of the PW1 and PW3 as well as the contents of Exhibits ‘A’ and ‘G’, my humble view is that evidence of the prosecution witnesses and if anything there are only minor discrepancies which are not fatal to the prosecution’s case, given that the manner of speech and presentation of fact varies with individuals and it is not expected that the evidence of witnesses must flow seamlessly in the same direction to the extent that questions will be asked if there are no previous rehearsals on the mode of presentation of their evidence in Court.
It is indeed not any and every discrepancy or inaccuracy in the evidence of prosecution witnesses that amounts to contradiction, especially where the witnesses are substantially saying the same thing. It is only material contradictions or fundamental inconsistencies that are relevant. See DIBIE & ORS. VS. THE STATE (2007) 9 NWLR (PT. 1038) 30; GALADIMA VS. THE STATE (2017) LPELR

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– 43469 (SC); KALU VS. THE STATE (1988) 4 NWLR PT.90 503; ISAH VS. THE STATE (2017) LPELR 43472 (SC).

On the issue whether the trial Court properly evaluated the evidence presented to it before convicting the Appellant for attempted murder under Section 7(b) of the Criminal Code.
It is now an established principle of procedural law that it is the duty of the trial Court to evaluate evidence and make primary findings of fact. This duty, unless it is shown not to have been done according to laid down principle of law, an appellate Court cannot interfere with such findings. See IBANGA VS. USANGA (1982) 5 SC 103; WOLUCHEM VS. GUDI (1981) 5 SC 291; IGAGO VS. THE STATE (1999) 14 NWLR (PT. 637) page 1; ONUOHA VS. THE STATE (1998) 5 NWLR (PT. 548) 118; AKINLOYE VS. EYIYOLA (1968) NMLR 92.
The attitude of the appellate Court to evaluation of evidence by the trial Court is that where a trial Court unquestionably evaluates adduced evidence and appraises the facts, it is not the business of the appellate Court to substitute its own view with those of the trial Court. What the Appellate Court is required to do is to find out from the records whether

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there is evidence on which the trial Court could have acted and on which the findings are based. In this regard, ascription of probative value to the evidence of witnesses is preeminently within the purview of the trial Court which saw and heard witnesses and which an appellate Court will not highly interfere with, unless for compelling reasons. See AROWOLO VS. OLOWOKERE (2011) 11 – 12 SC (PT. 11) 98; BFI GROUP CORPORATION VS. BUREAU OF PUBLIC ENTERPRISES (2012) 7 SC (PT. III) page 1.
I have read the judgment of the learned trial Judge as contained in pages 81 to 97 of the record of appeal and I seem to observe no perverseness in his reasoning and conclusions. His Lordship duly appraised the facts of the case and applied the relevant laws in reaching the requisite conclusions. Of particular interest is the finding that the criminal liability of the Appellant falls under Section 7(b) of the Criminal Code and after an evaluation of the evidence adduced by the prosecution vis-a-vis that of the Appellant, it was found that the prosecution proved the charge of attempted murder against the Appellant.
​Learned counsel for the Appellant had also argued

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that the learned trial Judge placed undue reliance on the evidence of PW1 and PW3 without taking cognisance of Exhibits A and G. I have earlier on in this judgment addressed the issue exhaustively wherein I came to the conclusion that the argument by learned counsel is of no moment as there are no material contradictions or inconsistencies in the evidence of PW1 and PW3 placed side by side Exhibits A and G.
On the efficacy of Section 7(b) of the Criminal Code which was relied on in convicting the Appellant, the said Section 7(a – d) provides thus:
“Section 7. Where an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it, that is to say:
(a) Every person who actually does the act or makes the omission which constitutes the offence.
(b) Every person who does or omits to do any act for the purpose of enabling or aiding another to commit the offence.
(c) Every person who aids another in committing the offence.
(d) Any person who counsels or procures any other person to commit the offence…”

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Section 7(b) relates to doing or omitting to do something for the purpose of making it possible or easier for another person to commit the offence. See STATE V. EDEDEY (1972) 1 SC 140.
The above set out provisions of Section 7 of the Criminal Code makes it clear that in the commission of an offence, not only the principle actor that will be liable but includes anyone who does or omits to do any act for the purpose of making it easier to commit the substantive offence by another person. In other words, a person who encourages the principle offender to commit an offence by action, omission or counseling and procuring is also liable for the offence as the principal offender. See ALAO VS. STATE (2011) LPELR 3700 (CA); ASHIMIYU VS. STATE (1982) 10 SC page 1.
From the evidence on record as adduced by PW1 (victim of the near death experience) and PW3 with specific reference to how the group of men including the Appellant rushed to the car immediately they stopped near a mango tree along Miller Road, Ugbor and engaged in a fight with the PW1 and how the 1st accused obtained a cutlass from 7th accused to attack PW1 leading to the severance

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of his hand and which unfortunate incident happen in the process of their fight with the PW1.
The learned trial Judge adequately analysed the scenario and made the necessary finding of fact as shown in the judgment at pages 94 to 95 as follows:
“The other accused persons have the required mens rea as their surrounding PW1 and 1st accused after knowing that 1st accused sent for a cutlass can be taken to be. Assuming they did not hear 1st accused send for the cutlass when the cutlass was brought by 7th accused they must have seen it and their staying clear and surrounding them is suggestive of approval and encouragement. It has been proved beyond reasonable doubt that 7th accused assisted 1st accused by getting the cutlass for his use on the PW1. The other accused persons are also proved beyond reasonable to have actively encouraged 1st accused. 1st accused use of a sharp object on PW1 must be shown to be an intention to kill PW1 for the offence of attempted murder to be proved. PW1 stated that some of the boys (i.e 2nd, 3rd, and 5th accused) that dragged him out from the vehicle said “today was his last day”. This means that they

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thought he would die. 1st accused sent 7th accused for a cutlass. 1st accused was about cutting PW1 neck but he used his hand to defend and 1st accused cut his hand. PW2 the doctor who treated PW1 described vividly what he found on examining PW1. That there was severe laceration/cut that went through the whole of the forearm, both soft tissues and bones i.e the radius and ulna bones. That the hand was only connected with the rest of the forearm by about a centimeter of skin. It was his opinion that if PW1 was not treated he would have died. PW3 testified that 1st accused who wanted to use the cutlass to cut PW1’s head but PW1 used his hand to shield his head and the cutlass chopped off his hand. This cut was severe to have cut through tissues and bones as described by the doctor. I believe that the strike with the cutlass by 1st accused was aimed at PW1’s head region and it was his using his hand to shield his head that saved his life. It is evidence then that the intention of 1st accused was to kill PW1. The charge for attempted murder is therefore proper and proved. There was an outright display of recklessness on the part of 1st accused, it was

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not a question of preparation, but of actus reus, the only saving grace being the use of PW1’s hand to protect his head. The near severance of the left hand but for a small skin of about a centimetre is a clear indication of an intention to kill. The 1st accused person by virtue of Section 7(a) of the Criminal Code is a principal offender in the charge for attempted murder while the other accused persons by virtue of Section 7(b) of the Criminal Code are also principal offenders for attempted murder.”
I agree with the reasoning and conclusion of the learned trial Judge as above set out having found that there was proper evaluation of evidence and adequate finding of facts.

The learned counsel for the Appellant had also argued that the learned trial Judge failed to consider Exhibit “B” (statement of 1st Accused) which supports the evidence of the Appellant wherein he raised an Alibi that he was not present at the scene of crime.
​This argument to my mind is rather strange. The law relating to Alibi is that an accused person who wishes to raise the defence of Alibi must do so at the earliest opportunity while making his

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extra-judicial statement. This is to enable the police investigate the Alibi.
An Alibi raised by an accused person in the course of his testimony in Court is one raised too late in the day and does not deserve any valuable consideration. See NSOFOR VS. THE STATE (2002) 10 NWLR (PT. 775) 274. Furthermore our criminal jurisprudence is yet to expand to the extent of a co-accused entering a defence of Alibi on behalf of another accused person. It therefore, to all intents and purposes behoves an accused person to raise the defence at the earliest opportunity by telling the investigating police officer that he was somewhere else when the crime alleged was committed. He is also 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 VS. THE STATE (supra) and ONYEGBU VS. THE STATE (1995) 4 NWLR (PT. 391) 510.
The Appellant in his extra judicial statement to the police (Exhibit D) stated that on 26/6/2002 at about 6.20am he left home for his farm along Edebo road, Ugbor and returned to the house about 1.30pm. Immediately he came back from the farm he was arrested by one Sunday Idurobo

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and taken to the house of the youth’s chairman. The police later came there to arrest him, to the police station, Ugbo.
This supposed Alibi as suggested by the Appellant’s counsel did not provide any particulars necessary for the police to conduct further investigation to ascertain his Alibi. To merely state that he was at home without more does not suffice. What is more, a defence of alibi is demolished if the prosecution adduces sufficient evidence to fix the accused person at the scene of crime at the material time. See NJOVENS VS. THE STATE (1973) 5 SC 17; MUSTAPHA VS. STATE (2016) LPELR – 40081 (CA).
In the instant case, I entirely agree with the finding of the trial Court as earlier set out in this judgment and I must further state that the evidence of the PW1 pinning the Appellant down to the scene of crime remains a strong weapon to extinguish the seeming defence of Alibi put up by the Appellant. The PW1 in his testimony stated at page 56 of the record as follows:
“At the Miller Road, the boys I saw that came from the bush are 2nd Accused, 5th Accused, 4th accused, 3rd Accused. They surrounded me. 6th Accused folded his

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hand looking at them. 1st Accused then called 7th accused to go and get a cutlass. 7th Accused went home to get a cutlass. 7th Accused gave the cutlass to 1st accused and the other accused person stayed clear surrounding us. 1st accused now used the cutlass on me. As he was about removing or cutting my neck, I defended myself with my left hand and he cut my hand and ran away.”
Also the PW3 in his testimony at page 60 of the record stated thus:
“As we got to a point where there was a mango tree and Imade Isarhrenhien stopped the car and we all came down. When we came down some people started fighting with Onaiwu Idurobo. The person I saw are Aimunaosa, Monday, Kate. It was Kate who sent (sic) to bring cutlass. I cannot remember the names of the others who were fighting.”
From the set out portion of the evidence of PW1 and PW3 it is clear that the Appellant was mentioned as one of those who came to fight with the PW1 on 26/6/2002 and they were with the 1st accused when he called for a cutlass with which he cut off the hand of the PW1. The Appellant was tied down to the scene of crime.

​On this premise, I hold that issues one

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and two are resolved against the Appellant.

On issue 3, that is whether the evidence led by the prosecution can ground a conviction for attempted murder. Now Section 320 of the Criminal Code, Laws of Bendel State Cap 48 vol. II as applicable to Edo State defined attempted murder thus:
“Any person who:
(1) Attempts unlawful to kill another.
(2) With intent unlawfully to kill another does any act or omits to do any act which is his duty to do, such act or omission being of such a nature as to be likely to endanger human life is guilty of a felony and is liable to imprisonment for life.”
The essential ingredient of attempted murder is the intention to kill unlawfully. See EZEUGO VS. STATE (2013) 9 NWLR (PT. 1360) 508.
An attempt to commit murder can also rightly be inferred from such circumstances as the nature of a wound inflicted on the victim by an accused person. See R. VS. ONORO (1961) 1 All NLR 33.

​The PW1 in the case at the trial Court narrated the whole story leading to his hand being severed by the 1st accused. For clarity purposes the relevant portion of his testimony as contained in page 56 of the record

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of appeal is herein below set out:
“I was dragged out of the vehicle by the boys. When they held me, they said today is my last day. I then kept quiet and 1st accused tried to use a shovel to hit my neck. I dragged the shovel with him and took it from him. The other people joined him to take the shovel from me. At the Miller Road, the boys I saw that came from the bush are 2nd accused, 5th accused, 4th accused, 3rd accused. They surrounded me. 6th accused folded his hand looking at them. 1st accused then called 7th accused to go and get a cutlass. 7th accused went home to get a cutlass. 7th accused gave the cutlass to 1st accused and the other accused persons stayed clear surrounding us. 1st accused now used the cutlass on me. As he was about removing or cutting my neck, I defended myself with my left hand and he cut my hand and ran away (witness shows his amputated left hand).”

The PW1’s story about the nature of attack on him is corroborated by the PW3 at pages 60 – 61 of the record of appeal as follows:
“As we were going we got to a point where there was a mango tree and Imade Iserhienrhien stopped the car and we

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all came down. When we came down some people started fighting with Onaiwu Idurobo. The persons I saw are Aimunaosa, Monday, Kate. It was Kate who sent to bring cutlass. I cannot remember the names of the others who were fighting. It was Osadolor Friday who asked Kate to go and get the cutlass. When Kate brought the cutlass, she gave the cutlass to Friday Osadolor who wanted to use it to cut Onaiwu Idurobo’s head but Onaiwu Idurobo used his hand to shield his head and the cutlass chopped off his left hand. When Onaiwu Idurobo’s hand was cut off, he fell down and myself, Imade Iserhienhien 6th accused carried him and put in the car. We took him to the Central Hospital, Benin. They were later referred to a hospital in G.R.A, Benin City. We took Onaiwu Idurobo to the hospital. I made statement to the police.”

The evidence of PW1 and PW3 which were not in any way discredited during cross-examination points to no other fact than that the 1st accused had the intention to cut the PW1 on the neck or head and the force and impact of the cutlass used was so heavy that for the hand of the PW1 to be virtually severed from his body when he used it to

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protect himself speaks volumes about the intention of the 1st accused on the life of the PW1.

The nature and details of the wound inflicted by the act of the 1st accused is well described in the testimony of the PW2, the consultant orthopaedic surgeon who treated the PW1. It reads thus:
“I know PW1. I remember the 26/6/02, the PW1 was brought to my hospital, Ajayi Oriafo Memorial Hospital in Benin City. He had a severe injury on the left fore arm covered with bandage. We opened the bandage and found a severed laceration/cut that both soft tissues and bones i.e. the radius and ulna bones. The hand was only connected with the rest of the foreharm by about a centimetre of skin. On the palmer surface (palm) of the forearm the hand was cold and was turning black due to loss of blood supply. We started the initial treatment by checking the amount of blood left in PW1. We set up a drip to build the blood volume. We started antibiotherapy and analyestics. PW1 was admitted. The following day he was taken to the theatre under general anaesthetic done on the hand which was found to be non-viable (dead). The little skin left was severed, the stump was

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refashioned by reducing it. The bones had been sticking out over it. PW1 was taken to the word and treatment was continued from the injury which was still bleeding if PW1 was not attended to by us he would have died.”

From the graphic detail of the horrendous attack on the PW1 by the 1st accused and resultant amputation of his hand failing which he would have died according to the evidence of the PW2, it is not out of place to conclude as did the learned trial Judge that there was an intent on the part of the 1st accused person to cause the death of the PW1. Thus on the authority of R. VS. ONORO, it can conveniently be inferred from the grievous wound inflicted on the PW1 with the resultant amputation of his arm that the 1st accused person attempted to unlawfully cause his death.

In the circumstance I hold that the prosecution proved the case of attempted murder beyond reasonable doubt.
This issue is hereby resolved against the Appellant.
Accordingly this appeal is found to be lacking in merit and it is hereby dismissed.
The judgment of the High Court of Edo State delivered on the 31st day of March 2009 is herby affirmed.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Warrant for the Apprehension of the Appellant as in Form 10 of the 2nd Schedule of the Court of Appeal Rules 2016 is hereby ordered to be issued and be served on the commissioner of Police, Edo State for immediate necessary action to ensure that the Appellant proceeds to serve his term of imprisonment.

FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment just delivered by my learned Brother, SAMUEL CHUKWUDUMEBI OSEJI, JCA and I am in agreement with the reasoning and conclusions reached in dismissing the Appeal as totally lacking in merit. I would however, only for point of emphasis make a few comments of my own as it relates to the issue plea of Alibi raised by the Appellant.
​In raising the plea of alibi in this case, the Appellant had strangely alleged through his Counsel, that the learned trial Judge failed to consider Exhibit “B”, which the statement of the 1st Accused person, which he claimed supports the evidence of the Appellant, who had raised a plea of alibi that he was not present at the scene of crime. I am in total agreement with my learned Brother that the law relating to alibi is that an accused person who wishes

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to raise the defence of alibi must do so at the earliest opportunity while making his extra-judicial statement. This is to enable the police investigate the defence and furthermore that there is no such thing under our criminal jurisprudence where is a co-accused person could enter a plea of alibi on behalf of another accused person.
The Appellant in his extra judicial statement to the police admitted into evidence as Exhibit ‘D’ stated that on 26-6-2002 at about 6.20am he left home for his farm along Edebo road, Ugbor and returned to the house about 1.30pm. Immediately he came back from the farm he was arrested by one Sunday Idurobo and taken to the house of the youths’ chairman. The police later came there to arrest him, to the police station, Ugbo. That was all.
​Upon a careful and calm consideration of the defense of alibi raised by the Appellant at the lower Court, I am unable to fault the learned trial Court’s appraisal of the evidence and findings on the issue as contained in the printed records. What learned defense Counsel had termed a defense of alibi, in the instant case, is the Appellant’s apparent

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summersault and change of the original story line. While in the witness box, for the first time he denied that he ever had anything to do with the offences charged and used the opportunity to put up an alibi. The point to be noted however, with this defense is that even though it was stated in the extra-judicial statement of the Appellant, it must contain sufficient particulars necessary for the Police to conduct further investigation to ascertain whether the alibi is true or not. The defence or plea of Alibi, it is to be noted is an evidential point which the prosecution must investigate to disprove. But it is not a phenomenon placing an unnecessary burden on the prosecution. The burden on the prosecution is simply not to ignore it as some steps must be taken to verify it however incredible it is. Where the alibi is clearly without foundation as in the instant case, the prosecution is not duty bound to bring in the witnesses to disprove it especially where there are stronger facts in evidence pointing to the presence of the accused person in the Locus Criminis as to make the alibi unreliable.
​Where an accused person who never indicated that he had

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an alibi but puts up the defense for the first time in Court, he could hardly be said to have given the Police an opportunity to investigate the alibi. Consequently, his alibi may not be of assistance to his case, as in the instant case. See the cases of IKEMSON vs. THE STATE (1989) NWLR (PT. 110) 455; UKWUNNENYI vs. THE STATE (1989) 4 NWLR (PT. 114) 131. In the instant case, I simply have no cause whatsoever to disagree with the findings of the learned trial Court, more so when the evidence of the PW1 clearly and strongly pointed at the presence of the Appellant at the Locus Criminis. In the printed record of Court, the PW1 in his testimony stated at page 56 of the record as follows:
“At the Miller Road, the boys I saw that came from the bush are 2nd Accused, 5th Accused, 4th accused, 3rd Accused. They surrounded me. 6th Accused folded his hand looking at them. 1st Accused then called 7th accused to go and get a cutlass. 7th Accused went home to get a cutlass. 7th Accused gave the cutlass to 1st accused and the other accused person stayed clear surrounding us. 1st accused now used the cutlass on me. As he was about removing or cutting my neck, I

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defended myself with my left hand and he cut my hand and ran away.”
As if this was enough, the evidence of the PW3 at page 60 of the record stated thus:
“As we got to a point where there was a mango tree and Imade Isarhrenhien stopped the car and we all came down. When we came down some people started fighting with Oniwu Idurobo. The person I saw are Aimunaosa, Monday, Kate. It was Kate who sent (sic) to bring cutlass. I cannot remember the names of the others who were fighting.”
​Arising from the foregoing, there is absolutely no doubt going by the testimonies of the PW1 and PW3 at the trial, that there were stronger pieces of evidence at the trial to support the prosecution’s contention that the Appellant was not only at the scene of crime, but indeed played a role in the commission of the crime. Going by the overwhelming evidence before the Court, he was indeed one of those who came to fight with the PW1 on 26-6-2002 and they were with the 1st accused when he called for a cutlass with which he cut off the hand of the PW1. In the face of the overwhelming evidence against the Appellant as one of the Participes Criminis

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and his failure to call evidence in support of his alibi, coupled with having to raise the issue, without giving sufficient particulars, I am unable to disagree with the learned trial Judge on the issue who rightly rejected the alibi. Against this position, this Appeal fails and it is accordingly dismissed. I abide by the consequential orders made by my Learned Brother in the lead Judgment.

BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead judgment of my learned brother SAMUEL CHUKWUDUMEBI OSEJI, and I am in agreement with him that the appeal lacks merit. I also dismiss it.

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Appearances:

O.M. OBAYUWANA with him, EGBADON and G.O. OKELEKE, Esq. For Appellant(s)

ITOHAN OKUNGBOWA (MRS) (CSC), Ministry of Justice, Edo State For Respondent(s)