EMEKA MBACHU V. THE STATE (2013)

EMEKA MBACHU V. THE STATE

(2013)LCN/6208(CA)

In The Court of Appeal of Nigeria

On Friday, the 17th day of May, 2013

CA/PH/243/2004

JUSTICES

EJEMBI EKO Justice of The Court of Appeal of Nigeria

C. E. NWOSU-IHEME Justice of The Court of Appeal of Nigeria

STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria

Between

EMEKA MBACHU Appellant(s)

AND

THE STATE Respondent(s)

RATIO

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES

This burden of proof beyond reasonable doubt in criminal prosecution is, as acknowledged by the Supreme Court in EMEKA MBENU v. THE STATE (1988) 3 N.W.L.R. (Pt. 84) 615, not Synonymous with proof beyond any shadow of doubt. See also NWABUEZE v. THE STATE (1988) 7 S.C. (Pt. ii) 157; OTEKI v. A.G. BENDEL STATE (1986) 2 N.W.L.R. (Pt.24) 648. Once it is demonstrably evident that the guilt of the accused has been established, and the truth of the matter has been brought out or ascertained from the disputed facts from the evidence produced by the prosecution the burden of proof beyond reasonable doubt is thus discharged. In OTEKI’S case (supra), Oputa JSC but this:
In other words, when a court is satisfied that the charge has been proved, then that case has been proved beyond reasonable doubt. Now the question arises how is the charge proved? The answer is simple: by calling evidence. The sole object and end of evidence is therefore to ascertain the truth of a disputed fact or several disputed facts, or in ornate legal phraseology to resolve the points in issue. Proof is logically sufficient reason for assenting to the truth of a proposition advanced. In juridical sense, proof will include and comprehend everything that may be adduced at the trial, within legal rules, for the purpose of producing conviction in the mind of the judge or jury. The witness who is believed will carry more conviction than ten witnesses who are disbelieved or whose testimonies do not induce belief. Although belief is subjective, yet still the judge before believing will subject the evidence to the objective test of probability, where the facts deposed to by the witness look probable when considered in relation to all the surrounding circumstances of the case, they induce belief. Probability is always a safe guide to the sanctuary where truth resides. PER EKO, J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN DISTURB THE FINDINGS OF FACT BY THE TRIAL COURT

WHETHER OR NOT IT IS EVERY INCONSISTENCY TAT IS FATAL TO A PROSECUTIONS CASE

It is not every trifling inconsistency in the evidence of the prosecution witnesses that is fatal to the prosecution’s case. As the learned judge stated at page 50 of the Record, relying on THEOPHILUS v. THE STATE (1996) 1 N.W.L.R. (Pt. 423) 139 at 155B, it is only such contradictions and/or inconsistencies which are substantial and fundamental to the main issue before the Court, such as could create reasonable doubt in the mind of the trial court, that are fatal to the prosecution’s case. PER EKO, J.C.A.

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): On 15th July, 1999 the Appellant was convicted for murder and sentenced to death by the High Court of Rivers State in the charge No. PHC/3c/96. The appeal is against the said conviction.
The appeal is predicated on only one issue, to wit:
Having regard to the intrinsic and divergent evidence produced by the prosecution on the immediate facts of this case, was the charge of murder proved against the Appellant beyond reasonable doubt as required by law?
In the preamble it is submitted by the Appellant’s counsel in the amended brief of argument filed on 1st February, 2011, but deemed filed and served on 25th June, 2012, that the onus is, at all times, on the prosecution to prove the guilt of the accused person beyond reasonable doubt. This burden of proof beyond reasonable doubt in criminal prosecution is, as acknowledged by the Supreme Court in EMEKA MBENU v. THE STATE (1988) 3 N.W.L.R. (Pt. 84) 615, not Synonymous with proof beyond any shadow of doubt. See also NWABUEZE v. THE STATE (1988) 7 S.C. (Pt. ii) 157; OTEKI v. A.G. BENDEL STATE (1986) 2 N.W.L.R. (Pt.24) 648. Once it is demonstrably evident that the guilt of the accused has been established, and the truth of the matter has been brought out or ascertained from the disputed facts from the evidence produced by the prosecution the burden of proof beyond reasonable doubt is thus discharged. In OTEKI’S case (supra), Oputa JSC but this:
In other words, when a court is satisfied that the charge has been proved, then that case has been proved beyond reasonable doubt. Now the question arises how is the charge proved? The answer is simple: by calling evidence. The sole object and end of evidence is therefore to ascertain the truth of a disputed fact or several disputed facts, or in ornate legal phraseology to resolve the points in issue. Proof is logically sufficient reason for assenting to the truth of a proposition advanced. In juridical sense, proof will include and comprehend everything that may be adduced at the trial, within legal rules, for the purpose of producing conviction in the mind of the judge or jury. The witness who is believed will carry more conviction than ten witnesses who are disbelieved or whose testimonies do not induce belief. Although belief is subjective, yet still the judge before believing will subject the evidence to the objective test of probability, where the facts deposed to by the witness look probable when considered in relation to all the surrounding circumstances of the case, they induce belief. Probability is always a safe guide to the sanctuary where truth resides.

To find or ascertain the truth from competing facts the trial judge is enjoined to undertake proper evaluation of the totality of the facts of the case. If on proper evaluation, the trial judge is satisfied and makes a finding of fact, the appellate court will not normally disturb such conviction or finding, unless the finding of facts is either perverse or is not supported by the evidence before him. See QUEEEN v. OGODO (1961) 2 SCNLR 366; THE STATE v. EMINE (1992) N.W.L.R. (Pt.256) 658. Let me restate, briefly, the facts of the case before proceeding to the consideration of the only issue in the appeal. On 3rd November, 1995 at about 6.45 pm at the 1st Artillery Junction, along Aba/Port Harcourt Highway, Port Harcourt, one Clifford Azubuike (hereinafter called “the deceased”) was on a routine traffic control duty. The deceased was checking vehicles and controlling the busy traffic along with other fellow Special Road Marshalls. The duty was a purely voluntary civic one. The Appellant drove his blue bus from Obigbo (Aba) end of the highway to where the Special Road Marshalls were. The Pw.1, also a Special Road Marshall, who was directing the traffic at the road junction; noticed that the vehicle, driven by the Appellant, had only one headlamp. He directed the deceased to book the appellant, who had been stopped. The deceased drew the attention of the Appellant to the defective head lamp. As the deceased was examining the head lamp the Appellant went behind the steering and moved the vehicle. He knocked down the deceased who was screaming for help. The Appellant sped off and dragged the deceased on the road for some distance. He eventually ran over the deceased in the process. The deceased died.
The pw.4, a medical doctor testified upon his examination of the body of the deceased. The medical report, Exhibit “C”, was made by pw.4. The testimony of pw.4 shows the deceased’s body had “a long irregular wound behind the left ear and there were many deep scratches on the left side of the forehead and face” and that there were many wide opened scratches or abrasions on the side of the right of the upper and lower parts of the hand”. Pw.4 also found several fractures of the ribs, “a tearing and collapse of the whole right lung”, massive bleeding inside the chest on the right side. He concluded by stating that the cause of death was a result of the foregoing facts. The findings of the pw.4 and Exhibit “E” are consistent with the alleged fact that the body of the deceased was harshly dragged on the road.
At the trial the Appellant testified that he was at a hold up at Rumuodara Junction before the 1st Artillery Junction and that-
When the hold-up ceased, I moved, then someone came out of the Rumuodara Junction – the person from Rumuodara Junction – (ran) towards my vehicle – I applied my brake because there is no way to avoid him as my brake failed. My vehicle fender in front near the head light knocked down the person that was coming down from Rumuodara Road. I tried to stop and did stop to come and help the person I knocked down. As soon as I opened my door to go and help, I saw another (vehicle) smarched (sic-smashed) him.
The Appellant made two statements to the police. They were admitted in evidence as Exhibits A & B. In one of these previous statements, Exhibit A, reproduced in the proofs of evidence (at page 5 of the Record) the Appellant had averred that on the fateful day he was coming from Obigbo with his vehicle and that on:
Reaching First Artillery, one Special Marshall stopped my line and as I was waiting for my line to move, the Special Marshall ordered our line to move and I was moving the deceased came to the front motor I was driving also looking at the side mirror to avoid hitting another vehicle. At that juncture my vehicle was (has) already carried the deceased person. It was one of the passengers, a woman, who hit my leg informing me that I have hit a person then I was about to stop there, the passengers told me to run to a nearby police station to report there. I refused to stop and I ran to Airforce Market to stop.
In substance Exhibit B, though very brief, is not too different from Exhibit A. In both statements Appellant admitted hitting the deceased and not stopping immediately. He drove as far as Airforce Base before stopping.
I have read the arguments of the Appellant in the amended brief of argument. The submissions are predicated on two (2) contentions, namely.
I. That since the testimony of the Appellant was unshaken and not materially challenged during the cross-examination the trial court was not right to disbelieve such evidence.
II. That there were material contradictions in the evidence of pw.1 and pw.2, who were the only eye witnesses.
The Appellant has made so much fuss about the details the pw.1 and pw.2, each, gave as their eye witness account of the incident. The learned trial Judge was criticized for explaining why there were minor discrepancies between the accounts of the incident given by pw.1 and pw.2, and for holding that the witness gave the account of what he saw and heard. It is submitted for the Appellant that such explanation ought not to come from the learned trial Judge, but the prosecutor.
This criticism of the learned trial Judge is completely unfair. The duty of properly evaluating the totality of the evidence devolves on him, the trial Judge, before he comes to conclusion as to which evidence he believes, and which evidence he does not believe. It is clear from the printed evidence that the pw.1’s account of what he saw and heard is that he (pw.2) was the person controlling the traffic at the material time, and that he came down from the control point when the traffic was light. He beckoned the deceased to check the vehicle operated by the Appellant. He testified in chief that the deceased bent down in front of the Appellant’s vehicle to examine the headlight and that by then the Appellant “was still behind the steering and the engine was still steaming”. He said the Appellant suddenly speed off while the deceased was still checking the fault. Almost spontaneously he “suddenly heard Azubuike (the deceased) shout at the top of his voice that people should help beg the driver before he kills him”. He explained under cross-examination, that it was the deceased’s shouting that drew attention or aroused his curiosity, and that he was then facing Rumuodara as he was controlling the traffic from Aba. He did not say, as the pw.2 did, that he heard the Appellant mutter words of threat to the deceased. The important thing in his evidence is that the Appellant was at the material time behind the steering and was operating the blue bus that the deceased was checking. There is no dispute that the Appellant operated the bus, the vehicle No. RV 1863 PC. The Appellant admitted that he operated that bus at the material time and that he infact knocked down the deceased with the said vehicle. While he pleaded mere accident, the prosecution, through the pw.2, insisted that he did so intentionally to kill the deceased.
The evidence of pw.2, produced to prove the requisite mens rea is to the effect that while the deceased was in the front of the bus checking the headlight and booking the Appellant for driving with only one headlight, the Appellant jumped out of his vehicle with anger and said-
Your Special Marshalls, you don come again? Nor na make me loose my former vehicle wey my master take away from me o. if you no leave this vehicle alone, I will kill you.
And that upon these words the Appellant rushed back to the drivers seat, suddenly moved the vehicle and hit the deceased right in front of the vehicle as he was making the booking. The pw.2 added that the deceased shouted for help. Both pw.1 and pw.2 heard the shout of the deceased to people to prevail on the Appellant not to kill him.
Inspite of the heavy weather made of the pw.1 and pw.2 in the details of what each of them heard and saw at the material time I have not been able to see any material contradiction between the two witnesses. The pw.2 was not discredited on the damaging evidence of mens rea given by him (pw.2) against the Appellant. The much flaunted discrepancy is all about the actus reus. Even on this, the most important fact which is; whether the vehicle operated by the Appellant hit and dragged the deceased on the road for some distance, there was no contradiction between pw.1 and pw.2. Exhibits A and B tend to corroborate this fact. The Appellant at page 23 of the Record also confirm that his “vehicle fender in front near the headlight knocked down the person”.
It is not every trifling inconsistency in the evidence of the prosecution witnesses that is fatal to the prosecution’s case. As the learned judge stated at page 50 of the Record, relying on THEOPHILUS v. THE STATE (1996) 1 N.W.L.R. (Pt. 423) 139 at 155B, it is only such contradictions and/or inconsistencies which are substantial and fundamental to the main issue before the Court, such as could create reasonable doubt in the mind of the trial court, that are fatal to the prosecution’s case
The learned trial Judge held at page 50 of the Record, and I agree, that what the Appellant calls contradictions in the prosecution’s case are totally irrelevant to the main issue: whether the Appellant intentionally caused the death of the deceased by running over the deceased with his bus on the day in question.
It is very correct, as submitted for the Appellant, that where evidence of a witness is not shaken or materially unchallenged during cross-examination such witness is entitled, prima facie, to some credibility. However, in the peculiar circumstance of this case the Appellant’s testimony before the trial court, at pages 23 and 24 of Record, cannot enjoy such credibility. This testimony is completely at variance with, or a renunciation of, his previous statements in writing in Exhibits A and B. The testimony at pages 23 and 24 of the Record was rendered on 10th February 1999. Exhibits A and B were admitted in evidence, unopposed, on 14th July, 1998 – 8 months earlier. The testimony of the Appellant in open court on 10th February, 1999 was, as rightly found and held by the learned trial Judge, inconsistent with Exhibits A and B on all material issues or points. The learned trial Judge, at page 46 of the Record, concluded thus, and I agree, that-
The statements were in direct conflict with the evidence on oath and therefore substantially thereby discrediting the accused person’s entire testimony. See the case of PIUS JIZURUMBA v. THE STATE (1976) 1 All NLR (Pt.1) page 219 at page 230.
The learned trial Judge had found that the Appellant was not a credible witness. This finding and/or conclusion, though adverse to the Appellant, has neither been appealed nor effectively challenged. The Appellant is deemed either not to be averse to it, or to accept it.
On the whole, there is no substance in the appeal. In my candid view, the appeal deserves to be, and it is hereby, dismissed in its entirety. The conviction and sentence of the Appellant in the charge No. PHC/3C/96 for murder punishable with death on 15th July, 1999 are hereby affirmed.

NWOSU-IHEME, J.C.A.: I have had a preview of the lead Judgment just delivered by my learned brother, EJEMBI EKO, JCA.
I am in full agreement with the reasoning and conclusions reached therein, particularly based on the Principle of Stare decisis.
The Notice of Appeal was filed after the three months prescribed by Section 24(2) of the Court of Appeal Act for filing of an appeal against a final Judgment.
This appeal being incompetent, there is no reason or justification not to strike it out. It is accordingly struck out.

STEPHEN JONAH ADAM, J.C.A.: I have had the privilege of reading in draft the Ruling just delivered by my learned brother Ejembi Eko, JCA and I am in full agreement with his reasoning and the conclusion.
This motion has brought to fore again the issue of inadequate payment of filing fees for originating processes. Order 12, Rule 1 read with the 3rd schedule in part II of the Court of Appeal Rules, 2011 is very clear on payment of filing fees. The language of the Rules is very clear, simple and tidy. One needs not engage in any disambiguation to understand the intendment of the provisions of the Rules.
The Order 12 rule 1 says:
“Save as hereinafter provided, the fees prescribed in the third Schedule hereto shall be charged in respect of the matters which they are respectively assigned and shall be paid to the Registry of the Court below or of the Court as the case may be.” (Underlining mine for emphasis).
The first thing to note is that under the 2011 Rules of this Court fees are prescribed. The word prescribed from the Oxford Advanced Learner’s Dictionary means “to say what should be done or how something should be done”. The word assigns means “to allocate”, “to allot” or “to designate” or “to give out”. Then the word “charge” means “to record the cost of something as an amount that somebody has to pay.” When these words are put together they give a straight forward view of the intendment of this Rule. What it means in short is that the Rules have already prescribed the fees that is to say it has already specified or said what should be paid in respect of the processes that are to be filed before the Court. Then it conveys the responsibility to the registry to charge what has been prescribed and for the litigants to pay what has been prescribed and charged. There is no element of discretion on the part of the Registry and on the part of the litigants as to what to pay as a filing fee.
In the face of this straight forward provision it beats me hollow to hear the practitioners propounding the theory of paying what the Registrar assessed for them to pay. Assessment has to with the process of evaluation, estimation, appraisal, rating, analysis or gathering information about something, This is where individual discretion and judgment comes in.
Order 12 rule 1 read with 3rd Schedule in Part II of the Court of Appeal Rules 2011 does not give the Registrar any right or duty of assessment of what fee to pay for filing of processes. The Rules have already prescribed the requisite fees and the duty of the Registrar is to charge what has been prescribed by the Rules and for the Litigants or Suitors to pay exactly what the Rules prescribed. There is therefore nothing orchestrating the excuse that the under payment is as a result of what they were assessed by the Registrar of the court to pay.
I always believe and I maintain it here that the rules of Court are meant to be obeyed and that there must never be an occasion or an open route created for the Registry or the litigants to ride roughshod over the Rules of Court particularly Rules dealing with prominent issues such as initiation of proceedings before the Court.
For this reason and the fuller reasons given by my learned brother Eko JCA, I find no merit in this motion. I Order it dismissed and I abide by all the orders made by my brother in Ruling. I also want to put on record our appreciation to the timely and valuable contributions of Mr. Ukala, SAN, amicus curiae.

Appearances

Ayodeji Adedipe with Akinola Akinyanju and Miss I. BriggsFor Appellant

AND

For Respondent