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SOLOMON KUHA v. THE STATE (2019)

SOLOMON KUHA v. THE STATE

(2019)LCN/13746(CA)

 

In The Court of Appeal of Nigeria

On Wednesday, the 7th day of August, 2019

CA/MK/142C/2017

 

JUSTICE

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria

 

Between

SOLOMON KUHA Appellant(s)

AND

THE STATE Respondent(s)

RATIO

WHETHER OR NOT TWO PIECES OF EVIDENCE CONTRADICT EACH OTHER WHEN THEY ARE BY THEMSELVES INCONSISTENT

In actual point of fact and law, a piece of evidence is said to contradict another when it affirms the opposite of what that evidence has stated; and not when there is just a minor discrepancy. Two pieces of evidence contradict each other when they are by themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short or contains a little more than what another piece of evidence says or contains; some minor differences in detail. See Ogidi V State (2003) LPELR-10152(CA) 27-28, A-B. PER SANKEY, J.C.A.

WHETHER OR NOT FOR A CONTRADICTION TO RESULT IN THE REJECTION OF THE EVIDENCE OF A WITNESS, IT MUST BE MATERIAL AND FUNDAMENTAL TO THE MAIN ISSUE IN QUESTION

It is the law that for a contradict8ion to result in the rejection of the evidence of a witness, it must be material, substantial and fundamental to the main issue in question such that it creates doubt in the mind of the Court. Trivial, minor and inconsequential contradictions which do not seriously relate to the ingredients of the offence charged cannot vitiate a trial. See: Okashetu V State (2016) LPELR-40611(SC) 30-31; Friday V State (2016) LPELR-40638(SC) 22; Okanlawon V State (2015) LPELR-24838(SC) 58; Edeki Minister V COP (2016) LPELR-40495(CA) 20;Afolalu V State (2010) All FWLR (Pt. 538) 812, 820. I am satisfied that there is no such contradiction in the case under consideration.
Indeed, if the evidence of the eyewitnesses were to be identical in every way, it would only suggest that they were schooled or had rehearsed what to say in Court. It is only human that no two people will give an account of the same event/incident which they witnessed in exactly the same way. There would inevitably be some differences in the way and manner each eyewitness perceived the incident. Where however the substance of the evidence is the same, notwithstanding minor discrepancies, the Court is entitled to act on same.
This position of the law was well stated by Oputa, JSC in Ikemson V St (1989) LPELR-1473(SC) 44, D-F as follows:
Two witnesses who saw the same incident are not bound to describe it in the same way. There is bound to be slight differences in their accounts of what happened. When their stories appear to be very similar, the chances are that those were tutored and tailored witnesses. Minor variations in testimony seems to be a badge of truth. But when the evidence of the witnesses violently contradict each other, then that is the danger signal. A trial Court should not believe contradictory evidence. PER SANKEY, J.C.A.

WHETHER OR NOT THE IDENTITY OF AN ACCUSED PERSON WILL NOT BE IN DOUBT IF THERE IS EVIDENCE BEFORE THE COURT SHOWING THE OPPORTUNITY THE WITNESS HAD TO IDENTIFY THE ACCUSED PERSON

It is settled law that the identity of an accused person will not be in doubt if there is evidence before the Court showing the opportunity the witness had to identify the accused person. Nonetheless, identity evidence should be received with caution and weighed against other available evidence. This was manifestly done by the learned trial Judge in the instant case. See Aliyu V State (2014) LPELR-23253(CA) 59; Archibong V State (2006) 14 NWLR (Pt. 1000) 349; Olalekan V State (2001) 18 NWLR (Pt. 746) 793.
In Archibong V State (2006) LPELR-537(SC) 14, C-F, Musdapher, JSC (as he then was) stated thus:
It is submitted that the law is settled that the identity of an accused will not be in doubt if there is evidence before the Court showing the opportunity the witnesses had to identify the accused as the assailant vide Olalekan V State (2001) 18 NWLR (Pt. 746) 793; Ajibade V State (1987) 1 NWLR (Pt. 48) 205. But such evidence should be received with caution and it must be weighed against other available evidence. See Abudu V State (1985) 1 NWLR (Pt. 1) 55. PER SANKEY, J.C.A.

THE DEFENCE OF ALIBI

Alibi is a radical defence and it simply means that the accused person was somewhere else at the time of the commission of the offence and could not have possibly been at the scene of crime to partake of it. See: Afolalu V State (2007) LPELR-8692(CA); Akpan V State (2002) 5SCNJ 301; Nwabueze V State (1988) 4 NWLR (Pt. 86) 16; Ozaki V State (1990).
The law as to alibi is clear as crystal and long since settled. The facts of the alibi are peculiarly within the Appellants knowledge and such witnesses as may be available. He therefore has the onus to disclose such facts with necessary details and particulars at the earliest opportunity so as to transfer the burden to the Police to check them out and deal with them with some finality. See Sowemimo V State (2004) 4 SCNJ 146; Eyisi V State (2000) 12 SCNJ 104. PER SANKEY, J.C.A. 

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the Benue State High Court sitting at Makurdi delivered on 25th June, 2016 by Onum, J. The trial Court convicted the Appellant for the offences of conspiracy and culpable homicide punishable with death.

The allegation against the Appellant was that he conspired with others to kill and actually killed one Lawrence Omanchi on 8th August, 2013. Therefore, the Appellant and others were charged before the trial Court for the offences of criminal conspiracy and culpable homicide punishable with death contrary to Sections 97 and 222 of the Penal Code Law, Cap 124, Laws of Benue State (Revised Edition) 2004.

At the trial, the Respondent called a total of six witnesses and tendered four exhibits marked Exhibits A, A1, A2 and B. The substance of the prosecution’s case was that the Appellant conspired with others and killed one Lawrence Omanchi on 8th August 2013. This act was done in the presence of eye witnesses, PW1, PW2, and PW4. On his part, the Appellant who initially was the 3rd accused person and later 2nd accused person, (after the

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name of one of the accused persons who had filed an interlocutory appeal was removed and his trial separated from that of the other accused persons), denied the charge and pleaded not guilty. The Appellant testified for himself and called two other witnesses. At the close of trial, the trial Court found him guilty of the charge and sentenced him to death. Dissatisfied, the Appellant filed an Appeal to this Court on 6th December, 2016 vide his Notice of Appeal, wherein he complained on four grounds.

At the hearing of the Appeal on 21-05-19, T.T. Ahua Esq. adopted the Appellants Brief of argument filed on 21-03-18 in urging the Court to allow the Appeal and set aside the Judgment of the lower Court. Also, E.T.C. Akula Esq., Principal State Counsel 1, Benue State Ministry of Justice, adopted the Respondents Brief of argument filed on 20-05-19, but deemed filed on 21-05-19, in urging the Court to dismiss the Appeal and uphold the Judgment of the lower Court.

The Appellant, in his Brief of argument, formulated two issues for the determination of the Appeal from the four Grounds of Appeal as follows:
1. Whether the Prosecution

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has proved her case beyond reasonable doubt. (Grounds 1 and 2)
2. Whether the Judgment of the Court below is sustainable in law having regards to the apparent contradiction of the evidence of the witnesses. (Grounds 3 and 4)

The Respondent, on its part, distilled one issue for determination from the four Grounds of Appeal as follows:
Whether the trial Court was right when it found the Appellant guilty of Criminal Conspiracy and Culpable Homicide punishable with death and sentenced him to death?

It is my view that the substance of the complaint in the four Grounds of Appeal can be completely addressed by the sole issue framed for determination by the Respondent. It is therefore adopted as the issue upon which to resolve this Appeal.

ARGUMENTS
Whether the trial Court was right when it found the Appellant guilty of Criminal Conspiracy and Culpable Homicide punishable with death and sentenced him to death?

In arguing the Appeal, learned Counsel for the Appellant submits that the prosecution woefully failed to discharge the burden of proof to the standard required by law, which is proof beyond reasonable

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doubt, in an offence of culpable homicide. He contends that in order to prove that the Appellant conspired with the co-accused, it had to link the Appellant to the co-accused and their supposed plan to kill the victim, as well as the act of killing of the deceased. He contends that the proofs of evidence before the lower Court did not disclose any common interest between the Appellant and his co-accused. Instead, that from the evidence of DW5, the Appellant was not at the scene of crime on the date in question because he was at Vandeikya with him. He contended that after the Appellant completed his SSCE, he stayed with him; and as the Appellant was married, he could not have been around to participate in the killing of the deceased. He contends that this piece of evidence was corroborated by DW6 (Appellants father) and the Appellant himself, DW3. Counsel submits that even though the prosecution led evidence to establish that the Appellant was among the killers of the deceased, the evidence was contradicted by witnesses for the prosecution and so no weight should have been attached to it.

Counsel further submits that the evidence of the prosecution

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witnesses was tainted because it was given out of malice. He contends that the testimony of PW5, the victims father, showed that he harboured grudges against the Appellant because the Appellant fought with his son over wheat at the premises of the Muslim Pilgrims Board Makurdi. According to PW1, he stated that when he was going to the market, he saw the boys whom he had seen on the day the deceased was attacked. He therefore called the victims father but before he arrived, the boys had left. Yet the father claimed to have arrested the boys in PW1s absence. It is therefore doubtful how the father of the deceased who was not at the scene got to know and identify the two boys arrested.

Counsel further submits that the Appellant and his co-accused (who was subsequently discharged) were seen at the scene of crime by the prosecution witnesses and were also seen together at the Appellant’s house. The 1st accused who was identified by the prosecution witnesses was found to be absent at the scene of the crime and for that reason, was discharged by the lower Court. Counsel therefore submits that the prosecution witnesses were not credible

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witnesses.

Counsel refers to some instances of contradictions in the evidence of the prosecution witnesses and submits that the lower Court should therefore not have relied on such evidence to convict him. He contends that two boys were said to be with the Appellant at his house where they were arrested. Yet, only PW2 and PW5 said the Appellant ran away. None of the other witnesses testified to this. Under cross-examination, PW1 testified that their house is fenced and has three gates. PW1 used the small door of the gate to get to the scene of the crime. PW4 testified there was no gate as at the date of the commission of the crime. PW1 testified that he did not deliver the threat message, but PW2 claimed that she was given the threat message. She claimed that she had followed her late son outside the compound before she came back to the compound and received the threat message. The PW2 testified that all the assailants ran away but left the 3rd accused alone who used a big stone to kill the deceased. This was not a part of the evidence of any of the other witnesses.

Again, Counsel submits that there is a contradiction in the evidence of PW2

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vis-??-vis the evidence of PW1, PW3 to PW5 as to the place where the victim died. He contends that the evidence of PW2 is at variance with that of the other witnesses on this. No evidence was given of how the Appellant smashed the deceaseds head or the head injury as there was no evidence of any wound as only blood was said to have streamed out of his nose and ears. Thus, he contends that there was no evidence linking the act of stoning and the consequent the death of the deceased. Also that since the PW2 did not know the difference between a knife and a cutlass, the veracity of her testimony is questionable.

Counsel also submits that prosecution witnesses testified that the father of the victim was told about the crime and the killers by his family members who claim they saw the assailants. However, the father contradicted this when he testified that he was told by the sympathizers who mentioned the names of the killers. Therefore, that the claim of PW1, PW2 and PW3 that they saw the assailants was not true. None of the sympathizers referred to by PW5 testified. Thus, the evidence constitutes hearsay and should not be relied upon. He submits

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that this, in addition to the contradictions in the evidence, has cast reasonable doubt on the guilt of the Appellant. Ekaidem V State (2012) All FWLR (Pt. 631) 1614, C-D;Osung V State (2012) All FWLR (Pt. 650) 1241 are relied on.

In addition, Counsel submits that PW1 did not mention the Appellant whom he knew very well in the neighborhood. Also, PW4 did not testify that his mother was pushed to the ground. PW2 testified that she was present when the Appellant was arrested by the Police; but upon cross-examination, denied this. Yet, the learned trial Judge held that the PW2 identified the Appellant. He therefore submits that these witnesses were not credible witnesses.

Counsel further submits that from the totality of the evidence, it is doubtful whether any person was murdered on the date in question as the evidence on this was contradictory. The PW6 testified that the victim died at the Federal Medical Centre Makurdi; the PW2 testified the victim died at Madonna Hospital Makurdi. The Police, through the PW6, testified that he saw the boys who ran away as he took the corpse to the Federal Medical Centre Makurdi mortuary. PW4 did not mention the

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presence of the Police that night at the scene of crime, but stated that he took the victim to the hospital. These pieces of evidence should have cast doubt on the mind of the lower Court as to the veracity of the testimonies of the prosecution witnesses and the contradictions, which go to the substance of this case and so is fatal. Archibong V State (2006) All FWLR (Pt. 323) 1787, G-A is relied on.

Counsel contends that the Appellant was accused of killing the deceased simply because of the conflict he had with that family previously, and the malice and hatred harboured by the father of the deceased over the issue of the wheat. PW4, who refers to the Appellant as Daddy and knows him well, did not identify him as one of the neighbours at the scene of the crime. He contends that since PW1, PW2 and PW4 knew the Appellant, whom they referred to as Daddy, they would not have waited for so long to arrest him if he was indeed amongst the boys They also did not mention his name at the Police station. He relies on Ekaidem V State (2012) All FWLR (Pt. 631) 1614, A-B to submit that where a witness fails to mention the name of an accused

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person and by, extension narrate a significant incident involving the accused person whom he knew before the commission of a crime to the Police at the earliest opportunity, that would detract from whatever credibility the trial Court may wish to ascribe to his evidence.

Counsel submits also that while PW1 testified that he switched off the generator, PW2 testified that the light was on throughout the incident. PW4 testified that there were reflections of light. He urged the Court to discountenance the evidence of these witnesses for lack of credibility. The Court is therefore urged to discharge and acquit the Appellant as the prosecution failed to prove her case as against him due to the contradictions in the evidence of the prosecution witnesses and the doubt as to whether the victim actually died at the instance of the Appellant and at the time stated by the prosecution witnesses.

In response, learned Counsel for the Respondent submits that the trial Court was right when it found the Appellant guilty of the charge of Criminal Conspiracy and Culpable Homicide punishable with death and sentenced him to death. He relies on Adava V State (2006) Vol. 5

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LRCNCC 66, 73, P-Z per Kutigi, JSC (as he then was); & Musa V State (2012) 10 LRCNCC 81; Oludamilola V State (2011) 9 LRCNCC20 for the ingredients to be proved by the prosecution in a charge of culpable homicide.

Counsel submits that the prosecution proved all the ingredients of the offence of culpable homicide punishable with death against Appellant beyond reasonable doubt. By the testimonies of PW1, PW2 and PW4 as well Exhibits A, A1, A2 and B, the prosecution proved that the Appellant, in conjunction with others at large, killed the deceased Lawrence Oche Omanchi, by hitting him with sticks, stones and axes, with the intention of causing his death and/or with the knowledge that death would be the probable consequence of their acts. He refers to the testimony in part of the PW2 (at page 97, lines 19 & 33 of the Record).

Counsel submits that all the prosecution witnesses were witnesses of truth and credibility. He contends that it was agreed by both the prosecution and the defence that one Lawrence Oche Omanche died on the 08-08-13. The only question that was left was: who caused the death of the deceased Lawrence Oche Omanche? The answer

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to that question was provided by the testimonies of PW1, PW2, PW4 and PW6, as well as Exhibits A, A1, A2 and B to the effect that it was the 1st, 2nd and 3rd accused persons before the lower Court that caused the death of the deceased, Lawrence Oche Omanchi.

Counsel further submits that there was no contradiction in the evidence of the prosecution witnesses. However, even if there were, the contradictions were not so material as to affect the case of the prosecution. He submits that the expression “beyond reasonable doubt does not mean “beyond every shadow of doubt” and relies on Abeke V State (2008) 6 LRCNCC 110, 124, K-P, per Tobi, JSC. In the instant case, Counsel submits that the Respondent proved her case against the Appellant beyond reasonable doubt via the unchallenged and un-discredited testimonies of PW1, PW2 and PW4, as well as Exhibits A, A1, A2 B respectively; and that contradictions in their evidence, if any, were not material and therefore not fatal to the case. On the issue of contradictions, reliance is placed onIgabele State (2006) 5 LRCNCC 30 at 57U per Onnoghen, JSC (as he then was). Counsel submits that in the instant case,

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there was no contradiction in the testimonies of the prosecution witnesses relating to the ingredients of the offence for which the accused persons were charged before the lower Court.

In respect of the defence of alibi, Counsel submits that it is not available to the Appellant as he did not raise any such defence in his statement to the Police. Instead, he raised alibi for the first time while testifying before the lower Court. He contends that the defence cannot avail him as he did not properly raise it at the earliest opportunity in order to give the prosecution the opportunity to investigate it. He relies on Udoebere V State (2005) 4 LRCNCC 212, 223, F-AN. Counsel submits that for the accused person to raise the defence while testifying in the dock is to deliberately deny the prosecution the right and duty to investigate the defence and such a ploy cannot avail the accused. Reliance is placed on Sowemimo V State (2004) 4 SCNJ 146 where it was held that the alibi raised by Appellant was belated and that such a defence, no matter how beautifully crafted and corroborated by witnesses, if not raised at the earliest opportunity, is to be treated as an

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afterthought and must be disregarded.

Counsel also relies on Dagayya V State (2006) 7 NWLR (Pt. 980) 637, 668, to submit that the defence of alibi crumbles once there is superior evidence from the prosecution. He submits that in the instant case, the prosecution’s superior evidence via the testimonies of PW1, PW2 and PW4, as well as Exhibits A, A1, A2 and B, have caused the improperly raised defence of alibi of the Appellant to crumble.

Counsel therefore submits that from the evidence on record, the Respondent proved beyond reasonable doubt that the Appellant committed the offences of criminal conspiracy and culpable homicide punishable with death contrary to Sections 97 and 222 of the Penal Code Law, Cap 124, Laws of Benue State (Revised Edition) 2004; and that neither the defence of alibi or any other defence known to law, avails the Appellant. Therefore, that the trial Court was right to have found him guilty and sentenced him as it did. The Court is urged to dismiss the Appeal.

Findings –
This Appeal is hinged on the contention of the Appellant that the Respondent failed to prove the charge of conspiracy and culpable homicide

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punishable with death contrary to Sections 22 and 22 of the Penal Code Law, Cap 124, Laws of Benue State (Revised Edition) 2004 against the Appellant, due to the alleged inadequate evidence of identification of the Appellant offered, the alleged contradictions in the evidence of the prosecution witnesses and the defence of alibi raised by the Appellant.

The facts leading to the demise of the deceased, Lawrence Omanchi, also referred to as Lawrence Oche Omanchi, as disclosed in the evidence of eyewitnesses to the tragic incident are clear-cut and uncomplicated. For whatever reason, the deceased had a spat with some young boys, which then led to his taking and withholding the telephone handset of one of the boys, Iorlumun Amah. Thereafter, PW4, the elder brother of the deceased, met the deceased and Iorlumun Amah on the road wrangling over the telephone handset in the possession of the deceased. PW4 tried to persuade the deceased to return the handset to Iorlumun to no avail, because the deceased alleged that Iorlumun had used the phone to call some boys for him; and so he would not give him back the handset until he named the boys he had

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called. As a result of this stalemate, PW4 asked Iorlumun to come along with them to their family house and he obliged. There, PW4 informed their mother, PW2, of the dispute and asked her to persuade the deceased to hand back the handset to its owner. PW2 also tried to prevail on the deceased to give back the handset, to no avail.

At a point in time, some of the assailants came into the compound of the family house of the deceased and told the PW1, a younger brother of the deceased, to call him out. Innocently and without having any inkling of their evil intentions, PW1 proceeded into the house to call out the deceased. Over and above the pleas of his mother, the deceased came out of the house to confront his assailants. Closely following on his heels was his distraught mother, PW2 as well as his brother, PW1. There was a fracas as the assailants attacked the deceased with sticks, stones, knives, cutlasses and axes. The deceaseds older brother, PW4, who was having a bath at this time, heard the commotion outside and on coming out, also witnessed the assailants attacking the deceased with these weapons. This vicious attack took place in the

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presence of the deceaseds mother and brothers, i.e. PW1, PW2 and PW4.

From the graphic account of the incident given by these eyewitnesses (as contained in the Record of Appeal), it was the Appellant who finally smashed the deceaseds head with a mighty stone. After the dastardly deed, the assailants took to their heels and ran away. It was left for the deceaseds family members, the PW4 in particular, who took the deceased to the hospital where he died. His mother, PW2, had at the same time, rushed to lodge a report at the Police Station and arrived with the Police at the hospital; while the father of the deceased, PW5, who was alerted by the family, also rushed to the hospital only to be confronted with the corpse of his son. These are the stark and basic facts of the case as disclosed in the evidence of the prosecution witnesses.

The evidence elicited through the PW1, PW2 and PW4, the mother and brothers of the deceased, who were eyewitnesses to the brutal murder of their son and brother, remained largely consistent, unshaken and uncontroverted even under the crucible of cross-examination. The minor

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contradictions, if any, referred to by Counsel for the Appellant in the evidence of these witnesses, are not only minuscule, but insubstantial to the overall cogent, coherent and convincing evidence marshalled before the trial Court. In actual point of fact and law, a piece of evidence is said to contradict another when it affirms the opposite of what that evidence has stated; and not when there is just a minor discrepancy. Two pieces of evidence contradict each other when they are by themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short or contains a little more than what another piece of evidence says or contains; some minor differences in detail. See Ogidi V State (2003) LPELR-10152(CA) 27-28, A-B.

Some of the alleged contradictions referred to by the Appellants Counsel were: whether the gate of the deceaseds house had three doors or not; who between the PW2, PW4 or PW6 took the deceased to hospital after the attack; whether the deceased was taken to Federal Medical Centre Makurdi first or to Madonna Hospital Makurdi where he was pronounced dead, and the like. Counsel also raised a query

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as to why the deceased, after being hit on the head with a mighty stone did not have any external injury, but only bled from his nose, mouth and ears. Notwithstanding the few discrepancies that may be in the evidence of the witnesses as highlighted by Counsel, the fact remains that on the date in question, 08-08-16, a group of young men, including the Appellant, who was well known to the PW1, PW2 and PW4 prior to the incident, viciously attacked the deceased with lethal weapons and inflicted grievous injuries on him which proved fatal and ultimately led to his demise very shortly thereafter in hospital. The eyewitness testimonies of these witnesses were chilling and graphic, and were not controverted in any material particulars under cross-examination. A sample of the evidence is set out hereunder:

PW1, the younger brother of the deceased and a 14 year old JSS1 student, stated under cross-examination (at page 93 of the printed Record of Appeal) as follows:
I stood and watching when my brother was being killed Our neighbour has his light on and the reflection was on our compound. This was how I was able to see the 2nd

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accused. There were about 8 assailants in all. It was the 3rd accused (now Appellant) who finally hit my brother on the head with a stone.

PW2, the deceaseds mother, testified inter alia as follows (at page 97 of the Record):
When I got into the compound the PW1 informed me that some boys were outside of our gate asking for my deceased son to meet them and that his cup had become full and that they were going to show him today. I ran after my deceased son. By the time I came out the boys were already attacking my son. Some other boys from the direction of the house Solomon (otherwise known as Daddy) and joined in the attack. My deceased son was in the middle of them. He fell to the ground. He stood up and tried to run. I tried to intervene but the assailants pushed me to the ground As my son was trying to run into my house the boy who had introduced himself to me as a welder slide him and he fell down on his face. The boys started attacking my deceased son with knives, stick, stones. I was pleading with them. They did not listen. The one called Daddy or Solomon finally used on (sic) mighty stone to hit the

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deceased on the head I went to my deceased son and he was still panting with blood coming out of from his nose and ears. My other son took the deceased to the hospital while I went to the police. A policeman was assigned to me and we followed to the hospital. Not quite long after our arrival in the hospital he died we used to know 3rd [accused] as Daddy; he was born in our presence and is the name we always call him After some weeks I was going to the market I sighted “Daddy at a place where people were repairing generators. I informed my husband that I had seen Daddy who escaped when he and the police went to his house to arrest him. My husband came with the police to the place. When the police identified himself to him he started running away; he was pushed and eventually arrested.

Under cross-examination by Counsel for the Appellant, PW2 was unshaken and instead, firmly reiterated her evidence relating to the ignoble role played by the Appellant in the death of her son in her presence.

Finally, the older brother of the deceased, PW4, testified thus (at pages 103-104 of the Record):
I

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went to have my bath I then started hearing noise outside. I rushed outside and I saw groups of boys beating my brother. Some had axes; others had sticks; stones and matchetes, which they were using on him. I tried to intervene and my brother was running back into the house. They brought him down and continued to hit him with the weapons they had. When [he] became still they ran away. He was breeding (sic) from his nose, mouth and everywhere on his body. I tried to rush him to the hospital. He died by the time I reached the hospital I can still recognize some of the boys who attacked and killed my brother. All three persons now in the dock were among those that attacked my brother and killed him.

Under cross-examination by the Appellants Counsel, PW4 stated thus:
Only the 3rd accused lives in our neighbour (sic) he lives two streets away from our house. I had seen him before. On several occasions he used to come and sit and drink in the shop in front of our house.

It is the law that for a contradiction to result in the rejection of the evidence of a witness, it must be material, substantial and

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fundamental to the main issue in question such that it creates doubt in the mind of the Court. Trivial, minor and inconsequential contradictions which do not seriously relate to the ingredients of the offence charged cannot vitiate a trial. See: Okashetu V State (2016) LPELR-40611(SC) 30-31; Friday V State (2016) LPELR-40638(SC) 22; Okanlawon V State (2015) LPELR-24838(SC) 58; Edeki Minister V COP (2016) LPELR-40495(CA) 20;Afolalu V State (2010) All FWLR (Pt. 538) 812, 820. I am satisfied that there is no such contradiction in the case under consideration.
Indeed, if the evidence of the eyewitnesses were to be identical in every way, it would only suggest that they were schooled or had rehearsed what to say in Court. It is only human that no two people will give an account of the same event/incident which they witnessed in exactly the same way. There would inevitably be some differences in the way and manner each eyewitness perceived the incident. Where however the substance of the evidence is the same, notwithstanding minor discrepancies, the Court is entitled to act on same.
This position of the law was well stated by Oputa, JSC in Ikemson V State

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(1989) LPELR-1473(SC) 44, D-F as follows:
Two witnesses who saw the same incident are not bound to describe it in the same way. There is bound to be slight differences in their accounts of what happened. When their stories appear to be very similar, the chances are that those were tutored and tailored witnesses. Minor variations in testimony seems to be a badge of truth. But when the evidence of the witnesses violently contradict each other, then that is the danger signal. A trial Court should not believe contradictory evidence.
Thus, whether the gate to the deceaseds house had one door or three doors; or whether it was PW2 or PW4 or PW6 who conveyed the deceased to hospital; or whether the hospital was Federal Medical Centre or Madonna hospital; are all immaterial to the substance of the case. What is material in the charge of conspiracy and culpable homicide against the Appellant is that the Appellant, in a group of other assailants, brutally attacked the deceased on the date in question with axes, cutlasses, knives/machetes, sticks and stones and hacked and beat him to death. The need for further explanations of

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contradictions in evidence, as postulated in Onubogu V State (1998) 1 ACLR 67, arises only when the contradictions are material or substantial. The evidence of the prosecution witnesses in this case did not violently contradict each other. Instead, the few discrepancies in the evidence of the prosecution witnesses pointed out by the Appellants Counsel are neither material nor substantial to the facts in issue before the trial Court, such as to create doubt in the mind of the Court with regard to the evidence before it. It therefore dispenses with the need for any explanation. As aforesaid, minor discrepancies in the evidence of the prosecution witnesses is natural, especially when there is a time lag between the time of the occurrence of the event and the date when the witnesses testified. The need for explanations arises only when there are material contradictions. I see no such contradictions in this case. See: Agboola V State (2016) LPELR-40294(CA) 23-24; Omotola V State (2009) ACLR 29; Ikemson V State (1989) 3 NWLR (Pt. 110) 455, 476.

In respect of the identity of the Appellant, his positive identification by the PW1, PW2 and PW4 was

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categorical, unqualified and conclusive as the witnesses knew him for a long time as a neighbour, in the case of PW2 even from childhood, and even knew the nick-name by which he was called in the neighbourhood, i.e. Daddy. These eyewitnesses were therefore able to recognise him, positively identify and even name him as the person who smashed a stone on the head of the deceased in their family house compound. Again, it was the PW2 (the mother of the deceased), who subsequently identified him when she saw him on her way to the market, and she was present when he was pursued and finally arrested. It is settled law that the identity of an accused person will not be in doubt if there is evidence before the Court showing the opportunity the witness had to identify the accused person. Nonetheless, identity evidence should be received with caution and weighed against other available evidence. This was manifestly done by the learned trial Judge in the instant case. See Aliyu V State (2014) LPELR-23253(CA) 59; Archibong V State (2006) 14 NWLR (Pt. 1000) 349; Olalekan V State (2001) 18 NWLR (Pt. 746) 793.
In Archibong V State (2006) LPELR-537(SC) 14,

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C-F, Musdapher, JSC (as he then was) stated thus:
It is submitted that the law is settled that the identity of an accused will not be in doubt if there is evidence before the Court showing the opportunity the witnesses had to identify the accused as the assailant vide Olalekan V State (2001) 18 NWLR (Pt. 746) 793; Ajibade V State (1987) 1 NWLR (Pt. 48) 205. But such evidence should be received with caution and it must be weighed against other available evidence. See Abudu V State (1985) 1 NWLR (Pt. 1) 55.

From the Record of the lower Court, the evidence of no less than three eyewitnesses, who knew the Appellant prior to the incident, was proffered by the prosecution in establishing the identity of the Appellant as one of the persons who attacked and killed the deceased on the fateful night. The evidence of the PW2 and the PW4 was firmly that the Appellant was well known to them practically from his childhood. They were quite familiar with the Appellant before the incident and made a positive and unequivocal identification of him. As aforesaid, it was the PW2 who immediately identified him when she saw him on her way to the market and

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caused his arrest. I am therefore well satisfied that the Appellant was validly identified by PW2, PW1 and PW4 as one of the assailants who came to their house on the night in question and beat the deceased to death. Therefore, the evidence acted upon by the learned trial Judge was concrete, cogent and convincing and pointed irresistibly to the fact that the eyewitnesses positively identified the accused person as one of the assailants.

In respect of the latter-day defence of alibi raised by the Appellant, it is clear from Exhibit A2, the extra-judicial statement of the Appellant to the Police, which was admitted in evidence without any form of objection from him, that this was not raised at the earliest opportunity upon his arrest to enable the Police to investigate same. It was only canvassed for the first time in his defence through his testimony as DW7 and that of his witnesses, DW5 and DW6 (his father). I am therefore not impressed by the attempt to import the defence at such a late stage in the proceedings.
Alibi is a radical defence and it simply means that the accused person was somewhere else at the time of the commission of the offence and

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could not have possibly been at the scene of crime to partake of it. See: Afolalu V State (2007) LPELR-8692(CA); Akpan V State (2002) 5SCNJ 301; Nwabueze V State (1988) 4 NWLR (Pt. 86) 16; Ozaki V State (1990).
The law as to alibi is clear as crystal and long since settled. The facts of the alibi are peculiarly within the Appellants knowledge and such witnesses as may be available. He therefore has the onus to disclose such facts with necessary details and particulars at the earliest opportunity so as to transfer the burden to the Police to check them out and deal with them with some finality. See Sowemimo V State (2004) 4 SCNJ 146; Eyisi V State (2000) 12 SCNJ 104. If he does not do so, as in this case, the Police cannot be expected to embark on a wild goose chase. The reason for this is so as to enable the Police launch an investigation into the alibi relied on by an accused to ascertain whether or not the defence is substantiated; and therefore whether or not the accused had the opportunity of committing the offence.
The defence of alibi was undoubtedly raised belatedly by the Appellant for the first time before the trial Court during his

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testimony as DW7. I agree with the learned trial Judge that this defence tardily raised, cannot avail him. The Appellant did not raise this defence of alibi at the earliest opportunity after his arrest in his statement to the Police, Exhibit A2. Instead, there is evidence in abundance in the form of credible eyewitness testimonies of PW1, PW2 and PW4 which not only fixed the Appellant at the scene of crime on the date in question, but also disclosed the abominable role he played during the vicious attack on the deceased, to wit: he delivered the final and fatal blow to the head of the deceased with a mighty stone. The learned trial Judge was therefore entitled to rely and act upon such explicit, unequivocal and uncontroverted evidence to convict the Appellant of this heinous crime. To my mind, there is nothing to fault the Judgment of the trial Court in rejecting this most puerile defence of alibi set up as a ruse to escape the consequences of his acts.
In Ikemson V State (supra) 44, A-C, Oputa, JSC, again stated as follows:
The prosecution has a duty to investigate an accused persons alibi but only when such alibi is set

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up at the earliest opportunity during the investigation stage preferably in the accused persons statement to the police. An alibi raised for the first time from the witness box cannot be considered as a serious defence. At best it is an after-thought. The positive evidence of the witnesses will outweigh this weak and belated alibi. (Emphasis supplied)
For learned Counsel to now canvass in one breath that the Appellant was not at the scene of crime on the date of the incident, and yet in another breath, state that there was no injury on the body of the deceased except for the bleeding from his nose and mouth, is both contradictory and inconsistent. How would the Appellant have known the absence of injuries on the body of the deceased, except for bleeding from the eyes, ears and mouth, if he was not present at the scene of crime but was elsewhere, as his defence of alibi contends? It is either he was elsewhere during the commission of the crime or that he was present and that is why he can contest the nature of physical injuries suffered by the deceased. That is why the Supreme Court in Ibrahim V State (1991) 5 SCCN 129, 135 per Belgore, JSC

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(as he then was) stated:
Whoever puts up the defence of alibi is indeed taking on himself a great risk because that seems to be the only defence that he can avail himself of. Once he contends he was not at the scene of crime he is accused of having committed, he must stand by that defence because he cannot turn round to say otherwise.

In point of fact, even if Counsels submission on the alleged absence of injuries on the body of the deceased, is considered for whatever it is worth, it is totally misleading in view of Exhibit B, the Post Mortem Examination Report on the deceased. The Report shows that the body of the deceased had multiple deep lacerations affecting the scalp at the left parietal as well occipital regions and he died of severe haemorrhage from soft tissue injuries. These injuries are no doubt consistent with the eyewitness testimonies of PW1, PW2 and PW4 as to how the deceased met his painful death at the hands of the Appellant and his co-travellers. Therefore, based on all the above findings, I resolve the sole issue for determination against the Appellant.

Consequently, I find

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no difficultly in coming to the conclusion that the Appeal is unmeritorious. It fails and is dismissed.

Accordingly, affirm the Judgment of the trial Court delivered on 25th June 2016 convicting and sentencing the Appellant to death for the charge of Criminal Conspiracy and culpable homicide punishable with death coldly to Sections 97 and 222 of the Penal Code Law, Cap 124, of Benue State (Revised Edition) 2004.

ONYEKACHI AJA OTISI, J.C.A. : My learned Brother Jummai Hannatu Sankey, JCA, made available to me, a draft form, a copy of the lead Judgment in which this appeal was dismissed.

I agree with, and, adopt as mine. the resolution of the issue arising for determination. The appeal lacks merit and is also dismissed by me, The conviction and sentence of the Appellant is affirmed.

JOSEPH EYO EKANEM, J.C.A.: I had the privilege Of reading in advance the lead judgment of my learned brother, Sankey, JCA. I agree with the reasoning and conclusion therein.

The PW1, PW2 and PW4 in their evidence in Court unequivocally identified the appellant as One of the assailants who the deceased

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lethal weapons including axes, knives, sticks and stones. It was their evidence that the appellant smashed the head the deceased with a Mighty stone. The deceased died soon after the attack on the same day of the attack. The evidence of the prosecution witnesses was unshaken in cross-examination and uncontradicted. The trial Court was therefore right in believing them and acting on their evidence. The “contradictions” in the evidence of the prosecution witnesses trumpeted by counsel for the appellant were minor discrepancies which did not go to the root of the the witnesses. In Alo V State (2015) g NWLR (Pt. 1464) 238, 274 Ogunbiyi, JSC, stated that:
“It is not every discrepancy or contradiction in the evidence of prosecution witnesses that would lead to the rejection of such evidence. It must be shown that the allegation (sic) is so material that grave doubts are cast on the case of the prosecution”.
No such doubt was cast on the case of the prosecution by the minor discrepancies in the evidence of the prosecution witnesses.

The defence of alibi raised by the appellant was a non – starter for the following reasons. The defence was raised for

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the first time in appellant’s defence. It was not raised at the earliest opportunity in his statement to the police to enable the police investigate the same. The defence therefore not properly raised. See Adio V State (1986) 3 NWLR (Pt. 31) 714 and Ehimiyein V State (2016) 16 NWLk (Pt. 1538) 173, 194.
Furthermore, the defence of alibi, if it may be so called, collapsed in the face of overwhelming evidence by prosecution witnesses fixing the appellant to the scene of the crime at the relevant time and the commission of the crime. See Ozaki V state (1990) 1 NWLR (Pt. 124) 92 and Ehimiyein V state supra. 194.

Where the case of the prosecution against an accused person is based on identification evidence, the Court must meticulously consider the circumstances in which the eye witness/es saw the suspect, the length of time the witness/es saw the suspect, the lighting conditions, the opportunity of close observations and previous contact/s between the eye witness/es and the accused. See Sale V State (2016) 3 NWLR (PL. 1499) 392, 415 – 419. The trial Court meticulously considered the foregoing in his judgment and came to the right conclusion that the appellant was one of the persons who attacked

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and killed the deceased. There is no reason to interfere with that conclusion.

It is for the above reasons and the more comprehensive ones set out in lead judgment of my learned brother that I also find that the appeal has no merit. I also dismiss the same and affirm the judgment of the trial Court.

 

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Appearances:

T.T Ahua, Esq.For Appellant(s)

E.T.C. Akula, Esq. (Principal State Counsel 1, Ministry of Justice, Benue State)For Respondent(s)

>

 

Appearances

T.T Ahua, Esq.For Appellant

 

AND

E.T.C. Akula, Esq. (Principal State Counsel 1, Ministry of Justice, Benue State)For Respondent