SOLOMON v. STATE
(2020)LCN/15556(CA)
In The Court of Appeal
(ENUGU JUDICIAL DIVISION)
On Thursday, November 26, 2020
CA/E/30C/2019
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
ODO NWANKWO SOLOMON APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
THE INGREDIENT OF MURDER
The ingredients of murder which the prosecution had to establish are: 1. the death of the human being. 2. That the death was caused by the accused. 3. That the act was done with the intention to cause death or that the accused knew or had reason to know that death should be the probable and not only the likely consequence of his act. See STATE V. SUNDAY (2019) LPELR-46943 (SC) AT 25 (B-F). AKINSUWA V.STATE (2019) LPELR-47621 (SC) AT 23-25 (E-E). MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
INSTANCE WHERE ANY CONTRADICTION IN THE EVIDENCE OF THE PROSECUTION WILL NOT VITIATE A TRIAL
The law is trite that for any inconsistency or contradiction in the evidence of a prosecution witness to be fatal to its case, such inconsistency, conflict or contradiction must be material, substantial and fundamental to the main issues in controversy between the parties before the Court thus creating some doubt that the accused is entitled to benefit from. Minor contradiction which did not affect the credibility of witnesses may not be fatal. Contradiction must relate to substance. Trivial contradiction should not vitiate a trial. See OKANLAWON V. STATE (2015) LPELR -24838(SC) AT 58 (B-D). OCHANI V. STATE (2017) LPELR-42352 (SC) AT 31- 32(C-A). MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
WHERE A MEDICAL REPORT/EVIDENCE CEASES TO BE A NECESSITY IN A MURDER CASE
The law is settled that in murder cases a medical report or medical evidence is desirable to establish the cause of death, it is clearly not a sine qua non. Where there is cogent and sufficient evidence which establishes the identity of the deceased, death and cause of death or where the cause of death is obvious from the nature of the wound or injury inflicted on the deceased, medical report ceases to be a necessity. See GALADIMA V. STATE (2017) LPELR-41911(SC) AT 26-27 (E-F). STATE V. SUNDAY (2019) LPELR-46943 (SC) AT 18-19 (F-C). In ONITILO V. STATE (2017) LPELR-42576 (SC) AT 19(B-F) the Supreme Court per KEKERE-EKUN, JSC held that:
“The appellant has challenged the reliance by the Court below on Exhibit A, the post mortem report as to the cause of death, as there was some inconsistency in the prosecution’s case as to whether the deceased was beaten to death or died as a result of decapitation. It is important to note that though desirable, a medical report is not a sine qua non in determining the cause of death in a case of murder where there is other evidence upon which the cause of death can be inferred to the satisfaction of the Court. See: Joseph Bille Vs The State (2016) LPELR-40832 (SC): Alarape & Ors. Vs The State (2001) 5 NWLR (Pt.705) 79: Aiguoreghian Vs The State (2004) 3 NWLR (Pt.860) 367; Adekunle Vs The State (1989) 5 NWLR (Pt.123) 505.” MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
PRINCIPLE GUIDING THE BURDEN TO PROVE THE GULT OF AN ACCUSED PERSON IN A CRIMINAL TRIAL
The law is firmly settled that the burden to prove the guilt of an accused person in a criminal trial may be discharged by any or a combination of the following methods: 1. Confessional statement of the accused which has been duly tested, proven and admitted in evidence. 2. By circumstantial evidence which is complete, cogent and unequivocal and leads to an irresistible conclusion that the accused and no other person, committed the offence charged. 3. By direct evidence of eye witnesses who actually saw the accused committing the offence. See CHUKWUNYERE V.STATE (2017) LPELR-43725 (SC) AT 21-23 (F-A).BASSEY V STATE (2019) LPELR-46910 (SC) AT 23-24 (C-B). MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
DUTY OF THE COURT WHEN THERE IS CONTRADICTION IN THE EVIDENCE OF A WITNESS
The law is firmly settled that where the witnesses called by a party give inconsistent and contradictory accounts of the same event and the contradictions are material and substantial to the extent that they cast serious doubts on the case presented by the party or as to the reliability of such witnesses, a trial Court should not believe the evidence. It is not the duty of the Court to resolve the contradiction in the evidence of a witness or witnesses called by a party or choose which one to believe or reject. See IKEMSON & ORS. V. THE STATE (1989) LPELR-1473(SC) AT 44-45 (E-B). MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ebonyi State delivered in charge no. HOZ/20C/2014 on 8/12/2016. The appellant and two other persons were arraigned before the Court on a one count charge of murder contrary to Section 319(1) of the Criminal Code Law, Cap 33 Volume 1, Laws of Ebonyi State of Nigeria, 2009. They were alleged to have killed GODWIN EZE at Umuezoukwu Onicha Igboeze, Ohaozara in Ohaozara Judicial Division, Ebonyi State on 7/3/2014.
The case of the prosecution was that a fight broke out between the appellant, some other persons and the deceased at a wake keep and the deceased was stabbed to death. The appellant’s case was that he did not participate in the fight that led to the attack and eventual death of the deceased. Rather he was a victim of an attack by some people numbering about ten and wearing red beret. They attacked him when he went to urinate and one of them dragged him to the corner of a nearby compound where they harassed, assaulted and inflicted injuries on him. He was taken to a chemist shop where he received treatment and from there he went home.
The prosecution called four witnesses and tendered exhibits A-G. The appellant and his co-accused testified in their defence and called two witnesses. The Court below in his considered judgment found the appellant and his co accused guilty of murder and sentenced them to death.
Being dissatisfied with the judgment, the appellant filed a notice of appeal containing six (6) grounds of appeal on 3/2/2017.
The grounds of appeal without their particulars are as follows:
GROUND ONE – ERROR IN LAW
“The learned trial judge erred in law when he held on page 22 of his judgment as follows:
“…Thus from the evidence of all prosecution witnesses I believe that the deceased had died. The learned defence counsel picked holes in the evidence of the prosecution witnesses that there were contradiction as to the actual date of death and the date the deceased was taken for post-mortem. These contradictions are contained in Exhibit G which is the post mortem examination report, there were discrepancies on the date of receipt of corpse to the mortuary and also the probable date of death which contradicts the evidence that the deceased died on the 9th March 2014, the contradiction in my opinion is a trifling discrepancy, although the prosecution ought to have examined the document they intend to tender and lead evidence to clear discrepancies on the dates on the said document…”
GROUND TWO – MISDIRECTION IN LAW
The learned trial judge misdirected himself when he held at page 22 of his judgment as follows:
“…the discrepancies on the dates on Exhibit G does not detract fact that the deceased died, so that even without Exhibit G, from the evidence of PW1 and PW3, I would have still found that the deceased died…”
GROUND THREE – ERROR IN LAW
The learned trial judge erred in law when he relied on the evidence of the PW4 in holding that the prosecution has established the first element of murder namely, that the deceased died.
GROUND FOUR – ERROR IN LAW
The learned trial judge erred in law when he relied on the evidence of PW3 to hold that the appellant and 2nd accused person were the ones who killed the deceased.
GROUND FIVE – MISDIRECTION IN LAW
The learned trial judge misdirected himself when he held at page 33 of his judgment as follows:
“Again the evidence of the 2nd accused and his witnesses were not unreliable to start with, there was no iota of evidence placed before this Court to show that the 2nd accused was attacked that night.”
GROUND SIX
The judgment of the lower Court is unwarranted, unreasonable and cannot be supported having regard to the evidence before the Court.”
The appellant’s brief of argument was filed on 30/4/2020. It was deemed as properly filed and served on 5/5/20. The respondent’s brief of argument was filed on 9/10/2020. It was deemed as properly filed and served on 15/10/2020. The appellant raised the following issues for determination:
1. “Whether or not the learned judge was correct when he relied on Exhibit G and the evidence of PW1, PW2 and PW4 to find that the deceased died. (Distilled from grounds 1, 2 and 3 of the notice and grounds of appeal).
2. Whether or not the learned trial judge was correct when he relied on the evidence of the PW3 to hold that the appellant and the 1st accused were the ones who killed the deceased. (Distilled from ground 4 of the notice and grounds of appeal).
3. Whether or not the learned trial judge was correct when he rejected the evidence of the appellant and his witness as unreliable and went ahead and convicted the appellant. (Distilled from ground 5 of the notice and grounds of appeal).”
The respondent raised the following issue for determination:
“Whether the prosecution proved the offence of Murder against the appellant beyond reasonable doubt.”
The issues raised by the appellant are hereby adopted for the determination of this appeal. On issue 1, the appellant’s counsel argued that the Court below ought not have relied on the evidence of PW4 and exhibit G, the medical report issued on the cause of the deceased’s death because there are contradictions on the actual date of death and the date the corpse of the deceased was taken for autopsy and these contradictions are visible on the face of exhibit G. He highlighted the alleged contradiction in the evidence of PW4 and exhibit G as to when he received the corpse upon which he performed autopsy, how he received it and the fact that PW4 is not a forensic pathologist but was called to give evidence as an expert. He submitted that the evidence of PW1 and PW3 on the cause of death of the deceased is hearsay and speculative as they are not forensic pathologists and were merely informed that the deceased died.
The respondent’s counsel in response to the above submissions submitted that where the facts leading to the death of a deceased is known and established in evidence by the prosecution, medical certification of a pathologist is unnecessary. He referred to ULUEBUKA V.STATE (2001) 2 ACLR 183 AT 185. He argued that from the evidence of PW3 and PW4, the cause of the deceased’s death is not farfetched. He submitted that the autopsy conducted by PW4 was a confirmatory requirement and PW4 who is a holder of MBBS degree for many years in a government hospital is duly qualified to make the certification contained in exhibit G and also to testify as such. He referred to DURWODE V. THE STATE (2001) 2 ACLR 503 AT 516. INIOBONG MATHEW ETUK –UDO V. THE STATE (2020) LPELR- 49164(CA).OGBA V. STATE(1992)2 NWLR (PT.222) 164.AFOSI V. THE STATE (2013) 13 NWLR (PT.1371) 329.
On the alleged contradictions in exhibit G highlighted by the appellant’s counsel, he submitted that the contradiction relate to the year of death and the date the corpse was received for autopsy but the conflict was resolved in the exhibit itself while the prosecution witnesses were ad idem that the incident which led to the death of the deceased happened late hours on 7/3/2014. He further submitted the year 2013 in exhibit G is a mere human error and a minor discrepancy that does not affect the substance of the case. He referred to IGBI V. STATE (2000) 3 NWLR (PT.648) 169 AT 172.
RESOLUTION
The law is settled that in criminal proceedings, the burden is on the prosecution to prove the guilt of an accused beyond reasonable doubt by adducing cogent and credible evidence establishing all the elements of the offence for which the accused is charged.
In the instant case, the appellant was charged for murder. The ingredients of murder which the prosecution had to establish are: 1. the death of the human being. 2. That the death was caused by the accused. 3. That the act was done with the intention to cause death or that the accused knew or had reason to know that death should be the probable and not only the likely consequence of his act. See STATE V. SUNDAY (2019) LPELR-46943 (SC) AT 25 (B-F). AKINSUWA V.STATE (2019) LPELR-47621 (SC) AT 23-25 (E-E).
The prosecution called PW1-PW4 and tendered the medical report exhibit G to establish the death of the deceased. The position of the Court below on the contention of the appellant’s counsel that the contradictions in the evidence of PW4 and exhibit G created doubt in the case of the prosecution which should be resolved in favour of the appellant as the case against the appellant may have been fabricated was stated at page 201 of the record as follows:
“I have read the evidence of the prosecution witnesses, they are replete with the assertions that the deceased died, the PW1, PW2, PW3 and PW4 all gave evidence to the fact that the deceased died a day after he was given a multiple stab by the accused persons. The PW2 also gave evidence to the fact that they were informed when he got to the hospital for investigation that the deceased had died, they were taken to the mortuary where the deceased was identified to them by his relative. He also got a doctor to conduct an autopsy on the deceased and tendered pictures taken during the autopsy as Exhibit A5.
The PW4 also gave evidence that he performed an autopsy on the said deceased and that the deceased was identified to him by the PW. He tendered Exhibit G as his autopsy report. The PW3 though was not there when the deceased died but said he was later informed that he had died. The PW1 who is a relative to the deceased also confirmed that the deceased died and had been buried. Thus from the evidence of all the prosecution witnesses I believe that the deceased had died. The learned defence counsel picked holes in the evidence of the prosecution witnesses that there were contradictions as to the actual date of death and the date the deceased was taken for post-mortem. These contradictions are contained in Exhibit G which is the post mortem examination report. There were discrepancies on the date of receipt of corpse to the mortuary and also the probable date of death which contradicts the evidence that the deceased died on 9th March 2014. This contradiction in my opinion is a trifling discrepancy, although the prosecution ought to have examined the document they intend to tender and lead evidence to clear discrepancies on the dates on the said document, but it is only when there is a material contradiction that such evidence can be rejected, the discrepancies on the dates on Exhibit G does not detract the fact that the deceased died, so that even without Exhibit G, from the evidence of PW1 and PW3, I would have still found that the deceased died. My finding on that Godwin Eze the deceased in this charge died.”(sic)
The evidence of PW1, PW3 and PW4 clearly established the death of the deceased. PW1 is the brother of the deceased who saw the deceased in the hospital before he died. His evidence that the deceased was stabbed in eight (8) places was not challenged. His evidence that the deceased died and was buried on 9th May, 2014 was also not challenged. PW4 stated that it was PW1, Fidelis Ngene that identified the corpse of the deceased to him in the mortuary in the presence of the police on 4/4/2014. He did the autopsy that day and he wrote his report which is part of exhibit G that day. Exhibits A-A5 clearly show the corpse being identified and the autopsy being performed. A dispassionate reading of exhibit G coupled with the unchallenged evidence of PW1- PW4 established the death of the deceased and cause of his death beyond reasonable doubt.
From the entire evidence on record, the Court below rightly held that the discrepancies on the date of the receipt of the corpse and date of death are trivial as they do not detract from the fact that the deceased died. An unbiased reading of the entire exhibit G would clearly show that the date of 2013 stated in the date of the receipt of the corpse in the mortuary is obviously a mistake or human error. The mistake is confirmed by the approximate date of death stated in the same document. The law is trite that for any inconsistency or contradiction in the evidence of a prosecution witness to be fatal to its case, such inconsistency, conflict or contradiction must be material, substantial and fundamental to the main issues in controversy between the parties before the Court thus creating some doubt that the accused is entitled to benefit from. Minor contradiction which did not affect the credibility of witnesses may not be fatal. Contradiction must relate to substance. Trivial contradiction should not vitiate a trial. See OKANLAWON V. STATE (2015) LPELR -24838(SC) AT 58 (B-D). OCHANI V. STATE (2017) LPELR-42352 (SC) AT 31- 32(C-A).
The law is settled that in murder cases a medical report or medical evidence is desirable to establish the cause of death, it is clearly not a sine qua non. Where there is cogent and sufficient evidence which establishes the identity of the deceased, death and cause of death or where the cause of death is obvious from the nature of the wound or injury inflicted on the deceased, medical report ceases to be a necessity. See GALADIMA V. STATE (2017) LPELR-41911(SC) AT 26-27 (E-F). STATE V. SUNDAY (2019) LPELR-46943 (SC) AT 18-19 (F-C). In ONITILO V. STATE (2017) LPELR-42576 (SC) AT 19(B-F) the Supreme Court per KEKERE-EKUN, JSC held that:
“The appellant has challenged the reliance by the Court below on Exhibit A, the post mortem report as to the cause of death, as there was some inconsistency in the prosecution’s case as to whether the deceased was beaten to death or died as a result of decapitation. It is important to note that though desirable, a medical report is not a sine qua non in determining the cause of death in a case of murder where there is other evidence upon which the cause of death can be inferred to the satisfaction of the Court. See: Joseph Bille Vs The State (2016) LPELR-40832 (SC): Alarape & Ors. Vs The State (2001) 5 NWLR (Pt.705) 79: Aiguoreghian Vs The State (2004) 3 NWLR (Pt.860) 367; Adekunle Vs The State (1989) 5 NWLR (Pt.123) 505.”
From the evidence of PW3 who saw the deceased being attacked and the evidence of PW1 who knew the deceased, being his brother and who saw him in the hospital with the injury inflicted on him and later saw his corpse in the mortuary and identified same to PW4 in the presence of the police, the identity, death and cause of death was firmly established. The substance of Exhibit G is the cause of the deceased’s death which stands unchallenged.
The suggestion of the appellant’s counsel that the case against the appellant may have been fabricated is ridiculous. It is not the case of the appellant that he had anything to do with either the deceased or any of the witnesses before the unfortunate incident. There is no scintilla of evidence on record to warrant an inference that the prosecution witnesses had a motive which propelled them to fabricate a case of murder against the appellant. Issue 1 is resolved against the appellant.
On issues 2 and 3, the appellant’s counsel submitted that the conviction of the appellant based on the evidence of PW3 who admitted that he had drunk beer at the time of the incident has occasioned a miscarriage of justice. He argued that the Court ought to have cautioned itself regarding the evidence since PW3 because he would have observed the incident that led to the death of the deceased under the influence of alcohol. He referred to the entire evidence led by the defence. He submitted that if the Court below had properly appraised and evaluated the evidence presented, it would have arrived at a different conclusion.
In response, the respondent’s counsel urged the Court to discountenance the submission that PW3 was drunk because the fact that he took two bottles of beer that evening does not ipso facto put him in a state of being drunk and there is no fact before the Court from which the Court can draw an inference that PW3 had no control of himself. He referred to Sections 67 and 233 of the Evidence Act. He further submitted that the eye witness account of PW3 on the basis of which the appellant was convicted was unchallenged throughout the trial. He submitted that all the ingredients of the offence of murder were established by the evidence of PW3 and PW4 while the evidence of the appellant is a mere denial and a complete summersault from his extra judicial statement.
RESOLUTION
The law is firmly settled that the burden to prove the guilt of an accused person in a criminal trial may be discharged by any or a combination of the following methods: 1. Confessional statement of the accused which has been duly tested, proven and admitted in evidence. 2. By circumstantial evidence which is complete, cogent and unequivocal and leads to an irresistible conclusion that the accused and no other person, committed the offence charged. 3. By direct evidence of eye witnesses who actually saw the accused committing the offence. See CHUKWUNYERE V.STATE (2017) LPELR-43725 (SC) AT 21-23 (F-A).BASSEY V STATE (2019) LPELR-46910 (SC) AT 23-24 (C-B). The prosecution in the instant case relied on the evidence of an eye witness who saw the crime being committed. PW3 was the only eye witness of the crime. The Court below carried out a comprehensive appraisal and evaluation of PW3’S evidence. At pages 204 -205 of the record of appeal the Court stated that:
“The PW3 who gave an eye witness account of the incident said it was the 1st and 2nd accused in concert with other persons that inflicted these injuries on the deceased. He gave evidence of how he saw the 2nd accused in what looks like a quarrel with the deceased and when he wanted to get closer to find out what the matter was, the 2nd accused chanted a slogan which attracted other persons who moved to attack the PW3, he then ran and hid himself in a dark spot from where he watched and saw the 1st and 2nd accused unleashed terror on the deceased. The evidence of the PW3 on this was neither contradicted nor discredited during cross-examination, I watched the PW3 gave his evidence and he impressed me as a witness of truth, as he did not make any effort to concoct what he did not know, he told the Court only what he said(sic) and witnessed. As expected the defence counsel launched an attack on the evidence of the PW3 when he stated in her written address that the PW3 admitted before the Court that he was drunk, in the state of hurry scurry ran for his safety, hid at a dark spot miles from the alleged attack and finally said that due to his distance from the scene of alleged offence he could not see who used what. But contrary to the submission of the learned defence counsel, under cross-examination, the PW3 maintained that though he took a few bottles of beer, he was neither tipsy nor drunk, he was very firm under cross-examination that he saw the two accused persons with others attacking the deceased the only thing he said he did not see very well was the weapon used by the 1st accused. He also said he could not identify all those involved in this attack. The PW3 only gave evidence of those who he was able to identify that night I do not see any contradiction in the evidence of the PW3 as to the fact he saw the 1st and 2nd among those who attacked the deceased. There is evidence that the scene of the crime was lighted. In fact both the accused seem to be in agreement that outside the compound where this incident happened was lighted with bulbs, the 1st and 2nd accused person from the same village with the PW3 they are people he knew before that incident. I therefore have no doubt in my mind that the persons he saw that night attacking the deceased were the 1st and 2nd accused. Therefore I found and also hold that PW3 saw the 1st and 2nd accused among other people who attacked the deceased.”
The contention of the appellant’s counsel that PW3 was drunk is not borne out by the evidence on record. PW3 firmly denied the allegation that he was tipsy as a result having drunk two bottles of beer. PW3 graphically narrated the attack on the deceased and what he did after the attack. There is nothing in his evidence to suggest even remotely that he was under the influence of alcohol when he went into hiding and watched how the deceased was being battered by the appellant and his gang. In fact, the reasonable inference that can be drawn from his decision to run and hide is that he was firmly in control of his senses otherwise he too would not have lived to tell the story. The Court below was right to rely on PW3’S evidence and other pieces of evidence from PW1, PW2 and PW4 to convict the appellant for murder. I cannot find any justification to disturb the excellent appraisal and evaluation of the evidence by the Court below.
Though, the Court decided not to treat the appellant’s statement as a confessional statement, the fact that the statement corroborated the evidence of PW3 is unarguable. The concluding part of the statement reads:
“During the wake-keeping I saw Ogbonnaya Casmir sitting close to the victim when the victim through(sic) my drink and I decided to go and buy another drink and he drag back (sic) and my shirt tour, then when I asked him to leave me he use bottle and broke my head then I ran into the compound and took a dagger and dagger him on his chest and as the fight continue other of my friends also joined me in fighting him and as the fight continue other of my friends also joined me in fighting him, at last when he has sustained much injury I ran away and left him in pull of blood.”
The Court also considered the evidence of the appellant and defence witnesses. At pages 212-213 of the record as follows:
“The 2nd accused in his defence testified for himself, the DW1 and DW2 all gave evidence in an attempt to exonerate the 2nd accused, they all gave evidence that it was the 2nd accused that was attacked by the deceased whom they alleged was drunk, and that the 2nd accused did not make any effort to fight back and neither did he ask anyone to fight for him; they all denied knowing how the deceased sustained his injuries. It was their evidence that the 2nd accused when he was attacked ran for his life and blood was gushing out from his head so that he was unconscious as a result of the injury.
Again the evidence of the 2nd accused and his witnesses were most unreliable to start with, there was no iota of evidence placed before this Court to show that the 2nd accused was attacked that night..
I do not believe that the 2nd accused was attacked by anybody and I do not also believe that he sustained any injury of the magnitude that was described in this Court by 2nd accused and his witnesses, and the attempt to show that the injury inflicted on the deceased was done by other person did not also hold any water, as according to them they all left when the 2nd accused was attacked, and did not know any other thing that transpired after that. I still have no doubt that it was the quarrel between the 2nd accused, that led to the attack on the deceased.
The 2nd accused gave evidence that he was unconscious after the attack, but in my own opinion, it is impossible for an unconscious man to sit all by himself in a motorbike without any support, the 2nd accused was hale and hearty that night and sat on his brothers bike to go home, he did not get any first aid from the chemist, because if he did, he would have called the chemist to say so not only that, there is also no evidence that he went to any other hospital, rather what the 2nd accused told this Court was that he went to his office to ask for a leave; I believe he asked for a leave to run away for sometimes as a result of the crime he committed and nothing more..”
The above excerpts from the judgment of the Court below shows that the complaint of the appellant’s counsel that the Court below did not properly appraise and evaluate the evidence led is unfounded. It is also not true that the Court did not indicate why it did not believe the evidence of the appellant and his witnesses. The reasons are clearly stated in the judgment. The appellant and his witnesses gave different versions of the incident which led to the attack and eventual death of the deceased. The different versions were highlighted by the Court in the judgment. The law is firmly settled that where the witnesses called by a party give inconsistent and contradictory accounts of the same event and the contradictions are material and substantial to the extent that they cast serious doubts on the case presented by the party or as to the reliability of such witnesses, a trial Court should not believe the evidence. It is not the duty of the Court to resolve the contradiction in the evidence of a witness or witnesses called by a party or choose which one to believe or reject. See IKEMSON & ORS. V. THE STATE (1989) LPELR-1473(SC) AT 44-45 (E-B).
In addition to giving different versions of the incident, the Court observed at page 171 of the record that the appellant tried to show a scar to the Court to back up his narration that he was attacked and injured when he was hit on his head with a bottle of beer and blood gushed out of his head but no scar was seen by the Court.
The Court at pages 214 of the record considered the part of the appellant’s statement where he stated that it was the deceased that poured his drink away and attacked him and his evidence in Court to determine whether the appellant is entitled to a defence of self defence or provocation.
“I have matched the evidence on record with the pre-condition for a successful plea of self defence. The defence of PW3 was consistent and unchallenged to the effect that when the quarrel was going on between the 2nd accused and the deceased, he drew near to find out what the matter was, it was the 2nd accused who chanted a slogan and more people came out even to attack him, and he ran for his life, there was no evidence that the deceased was armed with any dangerous weapon and there is non to show that he attacked any of the accused, there was really no need for the magnitude of terror unleashed on the deceased by the accused persons and their cohorts. The evidence of the 2nd accused that he was attacked was not substantiated by evidence and there was no evidence of such an attack.”
In the light of the copious and detailed appraisal and evaluation of the entire evidence led by the prosecution and the defence and the findings of the Court below that had the opportunity of seeing and observing the witnesses, the contention of the appellant that he was wrongly convicted must fail. I find no merit in this appeal. The appeal is dismissed. The judgment of the High Court of Ebonyi State delivered in charge no. HOZ/20C/2014 on 8/12/2016 by C.M.KEN- EZE, J is hereby affirmed. The conviction and sentence passed on the Appellant is affirmed.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother MISITURA OMODERE BOLAJI-YUSUFF, JCA and I totally endorse the reasoning and conclusion therein.
For the more detailed reasoning in the lead judgment, I equally find no merit in this appeal and I accordingly dismiss it.
ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, Misitura Omodere Bolaji-Yusuff, JCA just delivered. I am in agreement with the decision reached and the reasoning behind the decision.
For the detailed reasons adumbrated in the lead judgment, I too, hold that the appeal lacks merit. Same is equally dismissed. The conviction and the sentence passed on the appellant by the trial Court is hereby affirmed.
Appearances:
Chidi Nwankwo, Esq., with him, S. O. Okoye Esq. For Appellant(s)
I. I. Alobu, D.P.P., Ebonyi State and R. O. O. Udeh, C. S. C., Ministry of Justice, Ebonyi State For Respondent(s)
