EMEKA MBACHU v. THE STATE
In the Supreme Court of Nigeria
Wednesday, June 13, 2018
Case Number: SC.471/2013
IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria
AMINA ADAMU AUGIE Justice of The Supreme Court of Nigeria
PAUL ADAMU GALINJE Justice of The Supreme Court of Nigeria
EMEKA MBACHU Appellant(s)
THE STATE Respondent(s)
“For a contradiction to be regarded material, it must go to the root of the charge before the court. It must be one that touches an important element of what the prosecution needs to prove in the case.
INGREDIENTS THAT MUST BE PROVED IN THE OFFENCE OF MURDER
“In a criminal case such as this, all that the law requires from the prosecution is for it to establish: i.that death of the deceased has occurred ii.that it was the act or omission of the accused which caused the death and iii.that the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence, See: Ogba v. State (1992) 2 NWLR (Pt.222) 164 at 198; Aighuoreghian v. State (2004) 3 NWLR (Pt.860) 367 at 422 – 423; Edoho v. State (2010) 14 NWLR (Pt.1214) 651 at 678-679.”
CONVICTION ON A LESSER OFFENCE
“The purport of Section 179(2) of the said Criminal Procedure Law is that when a person is charged with an offence and facts are proved which reduce it to a lesser offence, the accused may be convicted of a lesser offence although he was not charged with it. For instance, in a murder case such as the one on hand, a trial court and indeed even the appeal court can, in an appropriate case, reduce the charge of murder to the lesser offence of manslaughter, and impose the appropriate sentence for the lesser offence. The provision is however tenable only where the evidence available before the trial court does not support the offence charged but is sufficient to sustain a conviction for a lesser offence even though the accused was not specifically charged with the lesser offence. See: Nwachukwu v. state (supra) Odeh v. FRN (2008) 13 NWLR (Pt.1103) 1 at 23.”
IBRAHIM TANKO MUHAMMAD, J.S.C. (Delivering the Leading Judgment): The appellant herein, who was the accused at the trial High Court (Rivers State High Court) was the driver of a bus with Registration No. RV 1863 PC. At about 6:45pm along the Port-Harcourt – Aba expressway, by a place known as Artillary Junction, he was stopped by the members of the Road Marshall, known as Special Marshall, on the alleged offence of driving with only one headlight. The deceased a member of the Road Marshall, was assigned to book him for the alleged infraction. While the deceased was in front of the bus to examine the headlight, the appellant, allegedly drove over him, crushed him and drove away. The deceased was taken to a private clinic where he died shortly thereafter. After taking and evaluating the evidence from the parties, the learned trial judge found the appellant guilty of the offence as charged, convicted and sentenced him to death.
On appeal to the Court of Appeal, Port-Harcourt Division (Court below), the Court dismissed the appeal and affirmed the trial Court’s decision.
Dissatisfied further, the appellant appealed to this Court on two grounds of appeal.
After settling briefs of argument in the Court, the parties made their written submissions in their said respective briefs. In his brief of argument, learned counsel for the appellant formulated the following issues for the determination of the appeal:-
1. “Whether having regard to the divergent evidence produced by the prosecution on the immediate facts of this case, the Court of Appeal was right in affirming the judgment of the trial Court that charge of murder was proved against the appellant beyond reasonable doubt as required by law.
2. Having regard to the facts established before the learned trial judge, was the Court of Appeal correct in law, in refusing to invoke the provisions of Section 179(2) of the Criminal Procedure Law of Eastern Nigeria.”
Learned counsel for the respondent adopted same issues for the determination of the appeal:-
1. “Whether having regard to the divergent evidence produced by the prosecution on the immediate facts of this case, the Court of Appeal was right in affirming the
judgment of the trial Court that (the) charge of murder was proved against the appellant beyond reasonable doubt as required by law
2. Whether having regard to the facts established before the learned trial judge, was the Court of Appeal correct in law, in refusing to invoke the provisions of Section 179(2) of the Criminal Procedure Law of Eastern Nigeria.”
My Lords, the allegation in the first issue or issue (1) from both sides is on proof of the offence of murder against the appellant beyond reasonable doubt as required by law. So many literature abounds from time immemorial on the definition of the legal jargon “Proof beyond reasonable doubt.” It has now become certain that proof beyond reasonable doubt is not proof beyond “all shadow of doubt.” See: Woolmington v. DPP (1935) A-C 462; Oteki v. A-G Bendel State (1986) 6 NWLR (Pt. 24) 648. In our adversarial legal system, it is the duty of the prosecution in a criminal trial such as this, to prove beyond reasonable doubt, the guilt of a person accused or charged with a criminal offence. It is proof beyond reasonable doubt where the prosecution has adduced sufficient, credible and
admissible evidence to establish the ingredients of the offence charged. It has never been the duty of the person charged with an offence to prove his innocence. See: Mbenu v. The State (1988) 3 NWLR (Pt. 84); Woolmington v. DPP (1935) AC 462.
Learned counsel for the appellant submitted that the contradiction in the testimonies of Pw1 and Pw2, which the Court of Appeal acknowledged, is a material one that creates doubt as to the intention (mens rea) of the appellant to kill the deceased. He argued that it will be unsafe, in such a situation to convict the appellant for the offence of murder. Learned counsel urged this Court to hold that the charge of murder against the appellant was not proved.
In his submission on issue 1, learned counsel for the respondent stated that the substance of the appellant’s perceived “contradictions” consists in the mere fact that where as the Pw1 testified that the appellant did not come down from the vehicle at the scene of crime. It was the shout of the deceased that attracted his attention. Pw2, on the other hand, testified that the appellant came out of his bus in anger.
Pw2 went on to say that the appellant was observed driving his bus with one headlight on the day in question and under cross-examination, Pw2 insisted that the appellant came down out of his bus. The point in dispute is whether the appellant came down from his vehicle at the time of the accident. Learned counsel for the respondent submitted that the lower Court on the issue of contradiction came to unassailable conclusion which re-affirms the age-long principle of law that for a contradiction to be regarded material, it must to go the root of the charge before the Court, though there is bound to be minor discrepancies in evidence. Learned counsel relied on the case of Agbor v. State (2006) 6 NWLR (Pt. 997) 545 at p.564. The respondent, he said, duly discharged its duty of proving the guilt of the appellant beyond reasonable doubt with respect to murder of the deceased. Learned counsel for the respondent urged this Court to resolve this issue in favour of the respondent.
I think, from the outset, one would need to know what is the point of, or what are the points/areas of contradiction, difference or disagreement between the evidence of Pw1 and Pw2
According to the learned counsel for the appellant, the major difference is the key to this appeal:
“That difference is whether the alleged threat by the appellant, before the fatal driving took place, or not. Put differently, it is humbly submitted that if the unfortunate death of the deceased happened in the particular circumstances, as described by the Pw2, then of course, the judgment of the learned trial judge, based largely on that testimony will be difficult to fault.
However, if it happened, in the way and manner described by the Pw1, it is humbly submitted, that a conviction for murder, will be difficult to sustain. It is submitted that the account of the Pw1 will in law, be a valid basis for conviction for manslaughter.”
Learned counsel for the respondent contended that the substance of the appellant’s perceived “contradictions” consist in the mere fact that whereas the Pw1 testified that the appellant did not come down from the vehicle at the scene of crime, the Pw2, on the other hand, testified that the appellant come out of his bus in anger.
At the trial Court, the issue of contradiction was resolved by that Court in the following manner:
“The third leg of the submission of learned counsel for the accused person was based on contradiction of the evidence of Pw1 and Pw2 as to whether or not the accused person came out or did not come out of his vehicle on the one hand and contradiction in the evidence of Pw1, Pw2 and Pw3 as regards venue of death of the deceased. As to contradictions alleged in so far as the venue of death of the deceased as concerned, it is clear that it was at Sophia Clinic and I have dealt copiously with that in my findings on the first leg of the submission of the learned counsel to the accused person and I do not intend to repeat myself except to say that there was no contradiction.”
With regard to whether or not the appellant came out from his vehicle, the learned trial judge, after evaluating the evidence before him found and held as follows:
“That there is no material contradiction in that the two witnesses gave evidence of which each knew and saw at the respective positions each was but what was common to them was that the accused person moved his bus ran over the deceased, dragged him on the road some 100 meters as a result of which the deceased died at Sophia Clinic…
I have given extensive consideration to alleged contradictions in the evidence of the prosecution witnesses and come to the conclusion that they were totally irrelevant to the main issue before me, i.e. whether the accused intentionally ran over the deceased with his bus on the day of the incident and whether the act of the accused caused the death of the deceased Azubike.”
In affirming the decision of the trial Court on the matter of contradiction in the evidence of Pws 1 and 2, the Court below held, inter alia, as follows:
“Inspite of the heavy whether made of the Pw1 and Pw2 in the details of what each of them heard or saw at the material time, I have not been able to see any material contradiction between the two witnesses. The Pw2 was not discredited on the damaging evidence of mens rea given by him (Pw2) against the appellant. The much flaunted and 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 Pw1 and Pw2.
Exhibits A and B tendered corroborate this fact. The appellant at P. 23 of the record also confirm(ed) 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 witness that is fatal to the prosecution’s case… it is only such contradictions and/or inconsistencies which are substantial and fundamental to the main issue before the Court, such as would 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.”
Learned counsel for the appellant submitted that a major difference exists between the evidence of Pw1 and Pw2 account on what actually happened. He submitted that the major difference will make a difference in the ultimate outcome of the appeal by changing the charge against the appellant from murder to a lesser offence.
That major difference, he said, is key to this appeal. The major difference learned counsel cited in his briefs of argument are (i) whether the alleged threat by the appellant, before the fatal driving, took place or not. Learned counsel put it differently that: if the unfortunate death of the deceased happened in the particular circumstance as described by Pw2, then of course, the judgment of the learned trial judge based largely on that testimony will be difficulty to fault (p.8 of appellant’s brief of argument). However, if it (death) happened in the way and manner described by Pw1, a conviction for murder will be difficult to sustain and the account of Pw1 will in law, be a valid basis for a conviction of manslaughter. (p.8 of appellant’s brief). Learned counsel submitted that where there is any doubt as to the guilt of an accused person arising from the contradictions in the evidence adduced by the prosecution on material issues, such a doubt must be resolved in favour of the accused person. He cited the case of State v. Emine (1992) paragraph B.7 NWLR (Pt. 256) SC 658 at page 674
Thus, it is clear that there is a concurrent finding of fact on the issue of contradiction in the evidence of Pw1 and Pw2. It is the practice of this Court not to tamper with concurrent findings of the two Courts below except where such a decision manifestly harbours some miscarriage of justice. See: Olaiya v. State (2010) 3 NWLR (Pt. 1181) 423 at 438; Attah v. State (2010) 10 NWLR (Pt. 1201) 190 at p. 226 and Archibong v. The State (2006) 14 NWLR (Pt. 1000) 349.
The point needs be re-stated that it is not every trifling inconsistency in the evidence of the prosecution witnesses that is fatal to the prosecution’s case. It is only such contradictions and or inconsistencies which are substantial and fundamental to the main issue before the Court such as would create reasonable doubt in the mind of the trial Court that are fatal to the prosecution’s case. In this case, the issue of the appellant coming down from his vehicle or not after the offence had been committed, has, in my view, very little or no relevance. The fact that the deceased was knocked down by the vehicle driven by the appellant is no more in doubt as confessed also by the appellant himself (pages 23 of the Record of Appeal).
For a contradiction to be regarded material, it must go to the root of the charge before the Court. It must be one that touches an important element of what the prosecution needs to prove in the case. In a criminal case such as this, all that the law requires from the prosecution is for it to establish:
i. That death of the deceased has occurred.
ii. That it was the act or omission of the accused which caused the death and;
iii. That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.
See: Ogba v. State (1992) 2 NWLR (Pt. 222) 164 at 198; Aiguoreghian v. State (2004) 3 NWLR (Pt. 860) 367 at 422 – 423; Edoho v. State (2010) 14 NWLR (Pt. 1214) 651 at 678 – 679.
The Court below, has thus, in my view, conducted all that was required of it by affirming the trial Court’s decision.
The second issue (issue No. 2) is on the Court below’s refusal to invoke the provision of Section 179 (2) of the Criminal Procedure Law of the Eastern Nigeria. That Section made provisions for the reduction of offence of murder to manslaughter if certain conditions are fulfilled.
Learned counsel for the appellant submitted that although at the trial Court and the Court of Appeal, the issue of conviction for a lesser offence was never addressed. However, because of the facts of this case, the offence ought to be considered as an alternative to the offence of murder. This, learned counsel submitted, is because the appellant’s conduct would appear to have evidenced a reckless or gross negligence towards the deceased. He cited in support Section 317 of the Criminal Code and case of House of Lords in R. V. Adomako (1995) 1 AC 171.
Learned counsel submits further that the test applicable in the case is the Ordinary principles of the law of negligence so as to determine whether the accused was in breach of duty of care towards the victim.
The appellant owed the deceased a duty of care which was breached by the appellant. Such a breach, it is further argued, is a far cry from the offence of murder as found and affirmed by the two Courts below. Learned counsel argued further that both the trial Court and Court of Appeal ought to have invoked the provisions of Section 179 (2) of the Criminal Procedure Law and Section 15 of the Court of
Appeal Act, respectively. Learned counsel finally argued that both the trial Court and the Court of Appeal were in serious error of law to have refused to reduce the offence charged in accordance with the provisions of the Criminal Procedure Law. He urged this Court to avail the appellant the benefit of Section 179 (2) of the Criminal Procedure Law. Learned counsel urges this Court to allow the appeal and set aside the conviction of the appellant.
Learned counsel for the respondent, after setting out the provision of Section 179 (2) of the Criminal Procedure Law, concedes that by virtue of the statutory provision (i.e. Section 179 (2) of the aforesaid law), a trial Court and the appellate Court can, in an appropriate case, reduce the charge of murder to the lesser offence of manslaughter, and impose the appropriate sentence for the lesser offence. He argued further that the provision is tenable only where the available evidence does not support the offence charged, but is sufficient to sustain a conviction for a lesser offence even though the accused was not specifically charged with the lesser offence.
He cited in support of his submission the cases of Nwachukwu v. State (1986) 2 NWLR (Pt. 25) 765 at 777 – 778; Odeh v. FRN (2008) 13 NWLR (Pt. 1103) 1 at 23. Learned counsel submits that in the instant case, there is an overwhelming evidence beyond reasonable doubt as to the culpability of the accused person in the offence charged, and there are no extenuating circumstances to reduce the charge to a lesser offence. It will be inappropriate to rely on the statutory provision of Section 179 (2) of the aforesaid law to convict and sentence the accused upon a lesser charge. He cited the case of Ejeka v. State (2003) 7 NWLR (Pt. 819) 408 at 423. He urged this Court to resolve this issue in the affirmative by holding that the Court of Appeal was right in refusing to invoke the provisions of Section 179 (2) of the Criminal Procedure Law to reduce the proven offence of murder with which the appellant was charged to the lesser offence of manslaughter, with the corresponding reduction in the sentence. Learned counsel finally urged this Court not to interfere with the concurrent judgment of both the trial Court and the Court below.
Be it noted my Lords, from the outset, that the provision for reduction of an offence and sentence have been provided in the Criminal Procedure Laws of the defunct Eastern Nigeria, i.e. Section 179(2) of the said law under which the procedures in respect of this appeal were conducted. It made a provision for the reduction of offence of murder to manslaughter, where certain conditions are fulfilled. The purport of Section 179 (2) of the said Criminal Procedure Law is that when a person is charged with an offence and facts are proved which reduce it to a lesser offence, the accused may be convicted of a lesser offence although he was not charged with it. For instance, in a murder case such as the one on hand, a trial Court and indeed even the appeal Court can, in an appropriate case, reduce the charge of murder to the lesser offence of manslaughter, and impose the appropriate sentence for the lesser offence. The provision is however tenable only where the evidence available before the trial Court does not support the offence charged but is sufficient to sustain a conviction for a lesser offence even though the accused was not specifically charged with the lesser offence. See: Nwachukwu v. State (supra) Odeh v. FRN (2008) 13 NWLR (Pt. 1103) 1 at 23.
The finding of the learned trial judge on the evidence placed before him reads as follows:
“I hold therefore that the prosecution has proved its case of murder against the accused person beyond all reasonable doubt and has discharged the onus placed on it according to law…. I have come to the irresistible conclusion that the charge of murder has been proved beyond reasonable doubt against the accused person, Emeka Mbachu as laid in the information and he is accordingly found guilty of the charge.”
Amplifying on the issue of proof, the Court below remarked:
“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 v. A-G Bendel State (1986) 2 NWLR (Pt. 24) 648, Oputa, JSC, put the matter of proof succinctly as follows:
“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 ordinary 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.”
Thus, as it has been found by the trial Court and affirmed by the Court below that there was an overwhelming evidence beyond reasonable doubt as to the culpability of the appellant in the offence with which he was charged, tried, convicted and sentenced, and there appear no extenuating circumstances to reduce the charge or sentence to a lesser offence or sentence, it will be inappropriate to rely on the provision of Section 179 (2) of the aforestated law to convict and sentence the appellant upon a lesser charge. Ejeka v. State (2003) 7 NWLR (Pt. 819) 408 at p. 423.
It was thus, not open for the Court below, not even for this Court to allow its reasoning and holding to go contrary to the known norms of adjudication i.e. reliance on validly admitted evidence, adequate enough to fetch conviction and the relevant law(s), in arriving at its decision in a matter.
For these reasons, I find it difficult to disagree with the concurrent findings and decisions of the two Courts below which I affirm. The appeal lacks merit and it is hereby dismissed
KUMAI BAYANG AKA’AHS, J.S.C.: I was privileged to read before now the leading judgment of my learned brother, I. T. Muhammad JSC in which he found the
appeal to be lacking in merit and accordingly dismissed it. I entirely agree with his reasoning and conclusion.
I wish to say that this is not a simple case of causing death by dangerous driving as the charge was laid under Section 319 (1) Criminal Laws of Eastern Nigeria applicable to Rivers State which reads thus:-
STATEMENT OF OFFENCE
Murder: Contrary to Section 319 (1) of the Criminal Code Laws of Eastern Nigeria as applicable in Rivers State.
PARTICULARS OF OFFENCE
Emeka Mbachu on or 3 November, 1995 at Artillery Junction along the Port Harcourt/Aba Expressway murdered Clifford Azubuike.
The prosecution called four witnesses to testify in proof of the charge. The appeal to this Court is centred on the evidence of PW1 and PW2 which the appellant alleged contained material contradictions which should have been resolved in favour of the appellant. Learned counsel for the appellant also argued that the evidence adduced did not warrant the conviction of the appellant for murder but the trial Court and the Court below ought to have invoked Section 179 (2) Criminal Procedure Code Law of Eastern Nigeria to reduce the offence to manslaughter.
PW1, Samuel Orinotu, who works with Elf Petroleum Nigeria Limited, testified that he is a special marshal. He could recall 3 November, 1995 at about 6.45 pm he was at the Artillery Junction on the Port Harcourt/Aba Expressway performing the function of a special marshal of directing traffic, clearing the road and checking vehicles that are dilapidated. Mr. Clifford Azubuike, Mrs. Blessing Ibonjin and Mr. Williams Kenenagha were also performing the same function of special marshals at the Artillery Junction. In the course of his duty of controlling traffic, he noticed a Blue Urban Nissan Bus with registration No. RV 1863 PC which had one head light. At that time the traffic was light and he came down from the control stand and stopped the driver. He then beckoned to Mr. Azubuike to check the vehicle. He, Azubuike went to the bus and drew the driver’s attention to the fact that he had one head light on. As Mr. Azubuike bent down in front of the bus to examine the head light, the driver was still behind the steering and the engine was still on. While Mr. Azubuike was checking the fault in the head light, the driver sped off.
He heard when Azubuike shouted asking the people to help him beg the driver before he killed him. Instead of stopping, the driver engaged the accelerator and eventually ran over Azubuike. He dragged Azubuike for about 100 metres before running over him. On seeing what had happened the other marshals rushed the injured Azubuike to the nearby Sophia Clinic at the Old Aba Road before reporting the incident to the Mini-Okoro Police Station. After reporting the case at the Police Station they returned to Sophia Clinic to find that Azubuike had died from the injuries he sustained from the bus.
On being cross-examined, PW1 said that the accused did not come down from the vehicle. He said he did not know what argument ensued between the accused and the deceased when he handed over the accused to the deceased and that what aroused his curiosity was the cry for help which the deceased uttered.
PW2, Williams Kenanagha, an Elf Plant Safety Superintendent, also a special marshal who was on road safety duties with others when the incident occurred gave his own account about what happened. He stated that the accused was driving the bus with one
headlight on when PW1 directed the driver to pack by the pavement and he did. PW1 then asked the late Azubuike to charge or book the driver/accused for driving with one head light only. Azubuike moved to the side of the bus and asked the driver to come down for his booking. The accused then jumped out of the bus in anger and uttered the following sentence:-
“You special marshals, you no done come again. Nor na make me lose my former vehicle wey my master take away from me o, if you no leave this vehicle alone, I go kill you” Late Azubuike then replied I did not apprehend you, will you come and see it yourself.”
The accused refused and went back to the driver’s seat. As Azubuike was making the booking, the accused suddenly moved the vehicle and hit the late Azubuike who shouted loudly ‘please tell the driver to stop, he wants to kill me’. But instead of stopping, the accused increased his speed. He said that late Azubuike fell with his face on the ground and the vehicle ran over him after dragging him for about 100 metres.
Under cross-examination, PW1 disagreed with the suggestion that what happened on the day of the incident
was a road accident because the deceased was not running about on the road. PW2 was also rigorously cross-examined and he maintained his stand that the accused was ordered to pack his vehicle on the pavement and he came out from the vehicle with anger and made the threatening statement to the deceased. He said it was not the shout of the deceased that attracted his attention and as the unit commander of the Road Marshals, he monitored the whole proceedings from when the accused was asked to stop, how he stopped and up to when he shouted at the deceased and the subsequent dragging of the deceased. He too denied the suggestion that it was the deceased that ran into the accused’s moving vehicle.
In his oral testimony in Court, the accused gave his own version of the incident as follows:-
“On 3/11/95 at about 6.45 pm I was driving from Obigbo to Port Harcourt Motor Park. On my way, before the 1st Artillery junction, there was some hold-up. When the hold-up ceased, I moved, then someone came out from the Rumuodara junction. As he was coming another motor overtook me on the right. The person coming from Rumuodara side saw his vehicle and what he did was to run towards my
vehicle RV 1863 PC. I applied my break 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 from Rumuodara Road. I tried to stop and did stop to come and help the person I knocked down. As soon as I opened the door to go and help, I saw another vehicle smashed him.”
He denied driving his vehicle on that day with one head lamp and also said he did not drag the man for 100 metres.
During cross-examination he admitted making Exhibits A and B to the Police but denied the suggestion that he intentionally moved his vehicle, knocked the special marshal down and dragged him for some distance.
The evidence given by PW1 and PW2 is eye witness account of what they saw on the date of the incident. Learned counsel for the accused/appellant in his submission both at the trial Court and on appeal dealt on the contradictions between the evidence of PW1, PW2 and PW3. He said that PW1 both in his evidence in-chief and under cross-examination maintained positively that while the deceased bent down in front of the bus to examine the head lamp, the driver was still behind the steering and the
engine was still steaming but PW2 contradicted this by saying the accused person jumped out from the vehicle with anger and said ”you special marshal, if you no leave this vehicle I go kill you” but PW1 said the accused did not come out from the vehicle. He drew attention to PW2’s answer under cross-examination that if anybody said anything to the contrary, the person is a liar and the person must not have been there and he also submitted that there was contradiction between PW1 and PW2 on the one hand, and PW3 on the other hand as regards to the venue where the deceased died.
Dealing with the issue of contradiction, the learned trial Judge found that in Exhibits A and B the accused person stated that his vehicle hit the deceased person, a safety marshal while he was looking at his side mirror. These statements which were made when the matter was fresher in his memory are directly at variance with the evidence he gave on oath in Court. He found that the accused as the only witness for the defence did not have any explanation for the inconsistency in Exhibits A and B on the one hand and his evidence on oath on the other.
He held that since the statements were in direct conflict with his oral evidence on oath, they are substantial thereby discrediting the accused person’s entire testimony placing reliance on State v. Okolo & Ors (1974) 2 SC 73 at 81 which followed the decision in Queen v. Joshua (1964) 1 All NLR 1 at 3-4 that if a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the correct approach in law is that the Court should not merely be directed that the evidence given at the trial should be regarded as unreliable but should also be directed that the previous statements, whether sworn or unsworn do not constitute evidence on which it could act. See: Pius Jizurumba v. The State (1976) 1 All NLR (Pt. 1) 219 at 230.
As regards the contradiction in the evidence of PW1, PW2 and PW3 on whether it was the corpse of the deceased that was examined by PW4 at UPTH was the same as the victim who was said to have died in Sophia Clinic, the learned trial Judge found that there was no contradiction in the evidence of these witnesses with regard to this point. The evidence adduced by PW1 was that after the incident, he and other
marshals rushed the injured Azubuike to the nearby Sophia Clinic before they went to report the matter to the police after which they went to Sophia Clinic to find out that the victim had died from the injuries he sustained from the accused person’s bus. They, all of them from Elf, then called their company Doctor to make arrangements to convey the corpse from Sophia Clinic to the mortuary. PW2 supported this evidence in toto. PW3 a Police Inspector who investigated the case said that as a result of what PW2 reported to him, he went to Sophia Clinic from where the victim of the accident had been taken to UPTH. PW3 served Dr. Gogo Abite PW4 of the UPTH with papers for autopsy and added that PW4 performed post mortem examination on the victim of the accident and in PW4’s evidence, it was the police and a relation who identified the body to him before he carried out the post – mortem examination. Thus the learned trial Judge did not find any contradiction in the evidence of PW1, PW2 and PW3 on the identity of Azubuike’s corpse as the one which was taken from Sophia Clinic to UPTH for post-mortem examination by PW4.
The evidence which learned counsel harped upon as being contradictory is that of PW1 who said the accused did not come out of the vehicle and PW2 who maintained otherwise. The learned trial Judge made the following findings at page 49 of the records:-
“With regards to whether or not the accused person came out from his vehicle, it was PW1 who arrested the accused person and stopped him for the deceased to charge him for driving with one head light on his vehicle. After the accused person stopped, he remained behind the steering and the engine of his car was still steaming. It became clear under his cross-examination that the evidence of PW1 was that of one whose attention and curiosity was attracted only by the shout of the deceased that people should help him beg the accused person not to kill him. But the evidence of the PW2 was that of the Unit Commander of the Road Marshals on duty on the day in question who monitored the whole proceedings from when the accused person was asked to stop, to when he stopped and up to the time he shouted on the deceased and subsequent drag of the deceased some 100 metres on the road. PW2 said accused person jumped out from his vehicle in anger and said in
pidgin English to the deceased:
“You Special Marshal, you nor done come again. Nor na you make me loose my former vehicle wey my master take away from me o; I go kill you”
PW2 added it was thereafter the accused person went back to his driver’s seat while the deceased was making the “booking” right in front of the bus of the accused who later carried out his intention by running over the deceased to his death.”
The learned trial Judge held that on the evidence, there was no material contradiction in that the two witnesses gave evidence of what each knew and saw at the respective positions each was but what was common to them was that the accused person moved his bus, ran over the deceased, dragged him on the road some 100 metres as a result of which the deceased died at Sophia Clinic. He therefore agreed with the submission of the learned Principal State Counsel citing Theophilus v. State (1996) 1 NWLR (Pt. 423) 139 that it is not every trifling inconsistency in the evidence of the prosecution witnesses that is fatal to its case but it is when such inconsistencies or contradictions are substantial and fundamental to the main issue in
question that will make the Court to hold that they create some doubt in the mind of the trial Court thereby entitling the accused to the benefit of a discharge from the offence. See: Okonji v. State (1987) 1 NWLR (Pt. 52) 659; The State v. Aibangbee (1988) 3 NWLR (Pt. 84) 548; Wankey v. State (1993) 5 NWLR (Pt. 295) 542; Azu v. State (1993) 6 NWLR (Pt. 299) 303. These findings were not challenged in the appellant’s appeal at the Court below.
At the Court of Appeal, only the appellant filed a brief of argument and the appeal was argued on that brief alone.
Since the conviction of the appellant involved the death penalty, the arguments in the appeal transcended the grounds of appeal and the Court of Appeal considered the appeal based on whether the prosecution was able to prove the offence of murder beyond any reasonable doubt. Learned counsel for the appellant argued that it is not the duty of the Court to explain why there was a difference in the account given by PW1 and PW2. He pointed at the fact that neither the PW1 nor PW2 gave the explanation furnished by the learned trial judge and secondly, the prosecution whose function it is to proffer explanation by
way of re-examination did not do so and submitted that the trial Judge does not, in law, enjoy the luxury of furnishing explanation on his own, where explanation is called for. He said the consequence of this is to render the case against the appellant doubtful and that when a trial Court acts on speculation rather than on the evidence, then it has abandoned its proper role of hearing evidence, evaluating same, believe or disbelieve witnesses and make findings of fact based on the credibility of the witnesses who testified and decided the merits of the case based on the findings. He urged the Court below to resolve the doubt created as a result of this identified difference in favour of the appellant.
In considering the appeal, the Court below went into the evidence adduced at the trial to find out if the charge was proved since the sole object and end of evidence is to ascertain the truth of a disputed fact.
The lower Court found that the criticism which the learned counsel for the appellant levelled against the trial Judge for explaining why there were minor discrepancies between the accounts of the incident by PW1 and PW2 was completely unfair.
He emphasized that the duty of properly evaluating the totality of the evidence devolved on the trial Judge before coming to the conclusion which evidence he believes and which evidence he does not believe.
The lower Court per Eko JCA (as he then was) reviewed the evidence and found that the evidence of PW2 proved the requisite mens rea namely that while the deceased was in front of the bus checking the head light and booking the appellant for driving with only one headlight the appellant jumped out of his vehicle with anger and said –
“Your Special Marshal 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.”
The appellant then rushed back to the driver’s seat, suddenly moved the vehicle and hit the deceased right in front of the vehicle as he was making the booking. The shout by the deceased asking the people to prevail on the appellant not to kill him was heard by PW1 and PW2. The Court below could not see any material contradiction between the two witnesses.
The lower Court also found that PW2 was not discredited on the damaging evidence of mens rea given by him against the appellant.
The learned trial Judge believed the account given by PW2 and that is why he stated that PW2, as the Unit Commander of the Road Marshals was the one who monitored the whole proceedings from when the accused person was asked to stop to when he stopped and up to the time he shouted on the deceased and subsequent drag of the deceased some 100 metres along the road.
The lower Court did not find nor did counsel for the appellant allege that the findings made by the trial Judge was perverse. The lower Court could interfere with the findings of the trial Court if such findings are perverse and not borne out by the evidence.
The actus reus was the driving of the bus and knocking down the deceased while the mens rea was expressed in the appellant uttering the threat “If you no leave this vehicle alone I will kill you”. Not only did he issue the threat but he followed it up by driving off the bus and in the process knocked the deceased down and dragged him on the ground for 100 metres. It was not surprising that the deceased sustained serious internal injuries which resulted in his death shortly after the incident.
Before this Court, learned counsel for the appellant has dwelt extensively on the contradiction existing between the evidence of PW1 and PW2 and submitted that the difference is capable of changing the charge against the appellant from murder to a lesser offence. He also harped on the evidence of the appellant which he said was not shaken under cross- examination. He urged this Court to accept the appellant’s evidence as unchallenged, uncontroverted and uncontradicted in contrast to the evidence adduced by the prosecution where a doubt has been created and thus should be resolved in favour of the appellant.
The appellant never mounted any challenge to the finding by the learned trial Judge that the statements he made in Exhibits A and B were in direct conflict with his oral evidence on oath thereby discrediting his entire testimony. The evidence which the appellant gave in Court is unreliable and the Court cannot act on Exhibits A and B. What is left is for the prosecution to prove its case against the appellant.
I had stated earlier that the appellant did not challenge the findings of the trial Court and so the Court below accepted the said findings since they were not perverse or not borne out by the evidence. They are therefore concurrent findings of fact. It has been stated times without number that this Court does not make a practice of setting aside concurrent findings of facts by the lower Courts except where such findings are not supported by the evidence on record or are perverse. See: Ezigbo v. State (2012) 16 NWLR (Pt. 1326) 318.
The appellant has laboured to impress on this Court through counsel that this is a case of causing death by dangerous driving but PW1 and especially PW2 disproved this line of thinking and thus gave a lie to the claim by the appellant that it was the deceased that ran into his vehicle and in an effort to avoid the accident, he encountered a mechanical failure when he tried to apply the brakes which failed coupled with an on rushing vehicle which smashed the deceased. It became obvious that the appellant gave a different version when he made Exhibits A and B. PW2 sealed the appellant’s fate when he told the Court the threats that the appellant issued to the deceased shortly before he sat
in the bus and knocked down the deceased who was in his front and dragged him for about 100 metres.
There is completely no merit in the appeal and it is hereby dismissed. The conviction of the appellant for the offence of murder and the sentence of death passed on him by the learned trial Judge which was affirmed by the Court of Appeal, Port Harcourt Division on 17 May, 2013 is further affirmed by me. Appeal dismissed.
CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of reading the draft of the leading judgment which my Lord, I. T. Muhammad, JSC, just delivered. I endorse the conclusion that this appeal is unmeritorious and should be dismissed. This contribution is limited only to the resolution of the divergent submissions on the issue of the so-called contradictions in the Prosecution’s case.
Counsel for the appellant dissipated so much energy on the existence of the so-called difference between the evidence of PW1 and PW2 on what actually happened, page 8 of the appellant’s brief of argument. Expectedly, the respondent’s counsel argued per contra.
My Lords, quite apart from the concurrent findings of fact on the issue of the contradiction in the testimonies of PW1 and Pw2, there is also the question of the nature of the so-called ontradiction. I will deal with both issues here, first, counsel’s invitation to this Court to interfere with the concurrent findings. Counsel for the appellant, most vociferously, entreated this Court to interfere with the concurrent findings of facts by the lower Courts on the issue of the said contradiction.
With profound respect, it would seem obvious that this entreaty was prompted by a misconception of the rationale of the decisions of this Court on this point. Let me explain.
It has long been established that an appellate Court, generally speaking, should not interfere with findings of fact of trial Courts. The reason is simple. The latter Courts, that is, trial Courts had the unique opportunity of seeing and hearing the witnesses give evidence. They not only see the witnesses, they equally observe all their habits and mannerisms. These include their demeanour and idiosyncrasies.
As a corollary to these peculiar advantages, the Law anticipates that they should utilize all their judicial competence: competence or skill rooted or anchored on law and commonsense to evaluate the evidence by eliminating the chaff from the grain of probative evidence. Proper conclusions which a reasonable Court ought to arrive at, expectedly or ideally, should eventuate from that rigorous exercise.
That is why the law takes the view that a failure in this regard would warrant the interference of the appellate Court, Adeye and Ors v. Adesanya and Ors  6 NWLR (pt. 708) 1; Olatunde v. Abidogun  18 NWLR (pt. 746) 712; Adeleke v. Iyanda  12 NWLR (pt. 729) 1; Udo v. CRSNC  14 NWLR (pt. 732) 116; Enilolobo v. Adegbesan  2 NWLR (pt. 698) 611.
This then is the foundation for the number of exceptions to this general rule against non-interference. For example, one major exception to the said general rule is that, where such findings are in fact inferences from findings properly made, the appellate Court is in as good a position as the trial Court to come to a decision,Ebba v. Ogodo  1 SCNLR 372;  4 SC 84, 98-100; Fabunmi v. Agbe  1 NWLR (pt. 2) 299, 314; Fatoyinbo v. Williams 
SCNLR 274; (1955) 1 FSC 87; Ukatta v. Ndinaeze  4 NWLR (pt. 499) 251, 263.
This explains the prescription that an appellate Court will also interfere with findings of fact where such findings are perverse, that is, persistent in error, different from what is reasonable or required, against weight of evidence; put differently, where the trial Judge took into account, matters which he ought not to have taken into account or where he shut his eyes to the obvious, Atolagbe v Shorun (1985) LPELR -592 (SC) 31; C-D. Such a perverse finding is a finding of facts which is merely speculative and is not based on any evidence before the Court. It is an unreasonable and unacceptable finding because it is wrong and completely outside the evidence before the trial judge, Iwuoha and Anor v NIPOST and Anon (2003) LPELR -1569 (SC) 39 – 40; Overseas Construction Company Nig. Ltd. v. Creek Enterprises (Nig.) Ltd.  3 NWLR (pt. 13) 407.
In all then, a decision is said to be perverse: (a) When it runs counter to the evidence; or (b) Where it has been shown that the trial Court took into account matters which it ought not to have taken into account or shut its
eyes to the obvious; or (c) When it has occasioned a miscarriage of justice, Messrs Misr(Nig) ltd v. Ibrahim  5 SC 55; Incar Ltd. v. Adegboye  2 NWLR (pt. 8) 453; Atolagbe v. Shorun  4 SC (pt. 1) 250, 282.
Counsel for the appellant failed to show how the concurrent findings of the lower Courts on the issue of the said contradiction could be pitch-forked into the above categories! Accordingly, I fail to see how this Court could justifiably interfere with the said concurrent findings of the lower Courts.
Then, the issue of contradiction. The word “contradiction”, traces its lexical roots to two Latin words, namely, “contra” and “dictum”, meaning “to say the opposite”, see; Ikemson v State  3 NWLR (pt. 110) 455, 479. Hence, testimonies of witnesses can only be said to be contradictory when they give inconsistent accounts of the same event. That explains why the law takes the view that for contradictions in the testimonies of witnesses to vitiate a decision, they must be material and substantial.
That is, 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 testify, or as to the reliability of such witnesses, Enahoro v Queen (1965) NMLR 265, endorsed inOgun v Akinyelu  18 NWLR (pt. 905) 362, 392; Emiator v State  9-10 SC 112; Afolalu v State  3 NWLR (pt. 1127) 160.
This is so because it would be miraculous to find two persons who witnessed an incident giving identical accounts of it when they are called upon to do so at a future date. If that were to happen, such accounts would be treated with suspicion, as it is likely that the witnesses compared notes. In effect, minor variations in testimonies seem to be badges of truth, Okoiziebu v State  11 NWLR (pt. 831) 327, 341; Nasaru v State 6- 9 SC 153; Ikemson v State (supra).
In any event, Courts have even taken the view that witnesses may not always speak of the same facts or events with equal and regimented accuracy, Ogun v Akinyelu 18 NWLR (pt. 905) 362, 392.
In all, for contradictions in the evidence of prosecution witnesses to affect a conviction, particularly, in a capital offence, they must raise doubts as to the guilt of the accused, Nwosisi v State  6 SC 109;
Ejigbadero v State  9- 10 SC 81; Kalu v State  4 NWLR (pt. 90) 503; Igbi v State  FWLR (pt. 3) 358;  3 NWLR (pt. 648) 169.
It is for these, and the more elaborate reasons in the leading judgment that I too hold that this appeal has no redeemable merit in it. I accordingly enter an order dismissing it. I abide by the consequential orders in the leading judgment.
AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment delivered by my learned brother, Ibrahim Tanko Muhammad, JSC, and I agree with his reasoning and conclusion that this appeal is devoid of merit. I also find it difficult to disagree with the concurrent findings and decisions of the two Courts below which I affirm. Appeal dismissed.
PAUL ADAMU GALINJE, J.S.C.: I have had the privilege of reading in draft the judgment just delivered by my learned brother I. T Muhammad, JSC and I agree with the reasoning contained therein and the conclusion arrived thereat.
The Appellant a driver of a commercial bus, drove his bus to a spot where the deceased and other Road Marshals were controlling traffic.
He was stopped because the bus he was driving had only one head light. The deceased who was directed to book him went to the front of the bus to inspect the head lights. He invited the Appellant to come down from the vehicle to answer some questions. Instead of doing just that, the Appellant moved the bus at high speed and hit the deceased whom he dragged for one hundred (100) meters, despite the plea by the deceased that people should beg the appellant to spare his life. Appellant crushed the deceased to death and drove off.
There is clear evidence before the trial Court that shortly before the deceased was crushed to death, the Appellant had told him that he would kill him if he (the deceased) did not allow his vehicle to go. From the facts as enumerated above, the Appellant intended to kill the deceased and proceeded to accomplish his intention. Discrepancies in the evidence of PW1 and PW2 who were eye witnesses with respect to whether the appellant alighted from the bus, as highlighted by learned counsel for the Appellant, are not so material to the charge against the Appellant. It is only a contradiction in respect of a material fact that would make
a Court doubt the evidence before it that is material. Indeed what will constitute material contradiction will depend on the facts of the case. In the instant case, the contradictions highlighted in the evidence of PW1 and PW2 are not material to the prosecution’s case. See Ikemson vs State (1989) 1, NWLR (Pt. 110) 455; Nasamu vs State (1979) 6 – 9 SC 153.
For these few words and the more detailed reasoning in the judgment of my learned brother I. T Muhammad, JSC. I find no merit in this appeal. Accordingly, same shall be and it is hereby dismissed. The judgment of the lower Court is hereby affirmed.
Ayodeji Adedipe with him, E. Oguntuase and Faith Edward For Appellant(s)
R.N. Godwins, Esq. with him, E.P. Ajudua, Esq. For Respondent(s)
Ayodeji Adedipe with him, E. Oguntuase and Faith Edward For Appellant
R.N. Godwins, Esq. with him, E.P. Ajudua, Esq. For Respondent