UDEH v. STATE
(2020)LCN/15656(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Wednesday, March 25, 2020
CA/E/86C/2018
Before Our Lordships:
MisituraOmodere 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
SAMUEL UDEH APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
THE BURDEN OF PROOF IS PLACED ON THE PROSECUTION TO PROVE HIS CASE BEYOND REASONABLE DOUBT
The law is longsettled that in a criminal trial, the prosecution is duty bound to prove his case beyond reasonable doubt. This is the import of Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which presumes an accused innocent until he is proven guilty. The burden placed on the prosecution is not discharged until the guilt of the accused person is properly established. See DANBABA V.THE STATE (2018) 11 NWLR PART 1631 AT PAGE 444 – 445; IDEMUDIA V. THE STATE (1999) 7 NWLR (Pt. 610) 202 at 215 F-G; ESANGBEDO vs. THE STATE (1989) 4 NWLR (Pt. 113) 57 ABUBAKAR SADIQ UMAR, J.C.A.
INCONSISTENT EVIDENCEOF A WITNESS ON MATERIAL FACTS MUST BE REGARDED AS UNRELIABLE.
In a bid to discharge the burden of proof placed on it by law, the Respondent called 5 witnesses who tendered several documents. The trial Court after reviewing evidence before it found that the
It is trite law that where a witness gives inconsistent and/or contradictory evidence on material facts, the evidence on the point must be regarded as unreliable and also, it must be rejected. ABUBAKAR SADIQ UMAR, J.C.A.
NON INTERFERENCE OF THE EVALUATED EVIDENCE BY AN APPELATE COURT
The law is trite that where a trial Court has dutifully, efficiently and properly evaluated the evidence adduced before it, the Appellate Court will not interfere. This Court will therefore only interfere where it is apparent on the printed record that the findings of the trial Court cannot be supported or are not proper conclusions and inferences to be drawn from the evidence. In CHIEF VICTOR WOLUCHEM & ORS V. CHIEF SIMON GUDI (1981) LPELR – 3501 (SC), MyLord Nnamani, JSC observed as follows:
“It is now settled that if there has been proper appraisal of evidence by a trial Court, a Court of Appeal ought not to embark on a fresh appraisal of the same evidence in order merely to arrive at a different conclusion from that reached by the trial Court. Furthermore, if a Court of trial unquestionably evaluates the evidence then it is not the business of a Court of Appeal to substitute its own views for the views of the trial Court…” It therefore follows that, where the findings of fact by the trial Court are amply supported by the accepted evidence on record, and such evidence are neither perverse nor unreasonable, this Court will not interfere with them” ABUBAKAR SADIQ UMAR, J.C.A.
A WITNESS THAT HAS TWO CONTRADICTORY EVIDENCE IS UNRELIABLE
Thereby, based on the principle of law expounded above, the Court will regard the two contradictory evidence of PW2 as unreliable. Furthermore, no witness is entitled to honour or credibility when he has two materially inconsistent evidence given on oath by him on record. Such a witness does not deserve to be described as truthful…”
I am of the firm view that the finding of the trial Court in respect testimony of the Appellant is born out of record and deeply rooted in law. I see no reason why I should tamper with the said finding. ABUBAKAR SADIQ UMAR, J.C.A.
ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Ebonyi State delivered by Hon. Justice Benson A.N. Ogbu on 30th April, 2018, wherein the learned trial Judge found the Appellant guilty of the offence of murder and sentenced him to death by hanging.
BRIEF STATEMENT OF FACTS
By an information filed on 8/3/2017, the Appellant and one TochukwuOko were charged with the offence of murder contrary to Section 319(1) of the Criminal Code Law Cap 33. Vol. 1 Laws of Ebonyi State of Nigeria, 2009. In the particulars of the offence, it was stated that “TochukwuOko and Samuel Udeh on the 30th day of September, 2016 at AmebirNdibeAfikpo in the Afikpo Judicial Division murdered Philip UgwuAbani”
It is the case of the Respondent that on the 30/9/2016 when the deceased returned from work, he joined PW1, his wife where she was washing some clothes in their compound. According to PW1, while she and the deceased delved into the frosty relationship between them and the members of the Appellant’s church, one Pastor Azubuike Okoro passed by and hurled stones at the deceasedwith threats to the life of the deceased before he left. According to her, the Appellant and his co-accused moved closer and stayed by the dwarf fence demarcating the two premises and hurled stoned at the deceased which claimed his life. It is the case of the Respondent that it was the alarm raised by PW1 that attracted PW2 to the scene of the crime. PW1 tendered Exhibits P1 and P2 which were the statements made by her to the police.
PW2 is one retired DSP Godfrey AgwuIdam, the close neighbour of the deceased and the first person to arrive at the compound of the deceased after he had been attracted thereto by the alarm raised by PW1. During the trial of the action, he tendered Exhibit P3. The Respondents at the trial of the action called a total number of 5 witnesses and tendered several documents.
The Appellant’s case on the other hand was that on the 30th day of September, 2016, himself and his co-accused returned to their place and he was instructed by his co-accused to freshen up and join him for prayers as this was their usual routine before they would head out to their destination. According to him, while they were locking the doors tomeet up their engagements, they heard the deceased shouting that he would no longer attack them as he used to instead he would attack them that afternoon by destroying their church so that they would have no place to prepare charms against his family. The Appellant stated further that the deceased made good his threats and that it was at this point that himself and his co-accused picked up gravel stones and threw them at the roof of the deceased’s house but that they soon gave up this act to proceed to the place of their prior engagement and that while on their way, they heard the deceased’s wife shouting which made them return. He recounted that on their way back, they were approached by two young men who told them of the allegations of the deceased’s wife accusing them of killing her husband but that on their arrival to the house, they saw the deceased and his wife being carried away on a motorcycle. He stated that his co-accused was arrested that same night while he was arrested on the 10th day of October, 2016 by officers of the Nigerian Police Force from State C.I.D. Abakaliki.
Upon the close of trial and the addresses of counselto the parties, the learned trial Judge in a considered judgment delivered on the 30th April, 2018 found the Appellant and his co-accused guilty of the offence charged and sentenced them to death by hanging.
Dissatisfied by the decision of the trial Court, the Appellant invoked the appellate jurisdiction of this Court vide a Notice of Appeal dated 31st May, 2018 and filed on the same date. The said Notice of Appeal containing eight grounds of appeal can be found at pages 201 – 205 of the record of appeal.
In line with the Rules of this Court, parties filed and exchanged their respective Briefs of Argument. The Appellant’s Brief of Argument is dated 25th November, 2018 and filed on the same date. The said Brief was settled by SIR. EJIKE EZENWA who at paragraph 3.00 of the Appellant’s Brief of Argument distilled three issues for the determination of the appeal to wit:
“1. Whether the trial Court was right in convicting the appellant whose name was not mentioned at the earliest opportunity?
2. Whether the Court was right to have convicted the appellant based on the inconsistent evidence of the prosecution especiallythat of PW1?
3. Whether the trial Court was right when it held that the Prosecution had proved its case beyond reasonable doubt?
The Respondent’s Brief on the other hand is dated 14th May, 2019 and filed on 31st May, 2019. The said Brief was settled by JONATHAN E. NWAONUMAH, ESQ, DEPUTY DIRECTOR, PUBLIC PROSECUTIONS, MINISTRY OF JUSTICE, EBONYI STATE who at paragraph 3.01 of the Respondent’s Brief distilled a sole issue to the determination of the appeal to wit:
“Whether the trial Court was right when it held that the prosecution had proved its case beyond reasonable doubt?”
The appeal was taken on 21st January 2020 wherein counsel to the parties adopted their respective briefs and made oral adumbrations in respect of their postures in the appeal.
APPELLANT’S ARGUMENTS
On the first issue distilled by learned counsel to the Appellant, he referred this Court to the statements made by PW1 to the police which were tendered and marked Exhibits P1 and P2 and submitted that it is worthy to bear in mind the date and time these statements were made because of the bearing they have with the time and date the allegedincident that led to the death of the deceased occurred. Counsel submitted further that Exhibit P1 was taken on 30/09/2016 at about 20:12 hours while Exhibit P2 was later taken on 4/10/2016 at the respective police stations. Counsel submitted that the statements of PW1 which emanated from only one eye witness to the alleged crime are material and carry some serious evidential value. He submitted further that the trial Court ought to have heavily relied on it instead of placing reliance on the surrounding evidence which at best could be described as speculations. On the duty of a Court to rely on the evidence placed before it and not to speculate, Counsel referred this Court to the cases of EZEMBA V. IBENEME (2004) 14 NWLR (pt. 894) 717. S.C.; ARCHIBONG V. ITA (2004) 2 NWLR (pt. 858) 590. S. C; MOGHALU V. WOBO (2004) 17 NWLR (pt. 903) 465.
He submitted that the name of the Appellant was not mentioned in Exhibit P1 as one of those that attacked the deceased. He further submitted that another opportunity was presented to PW1 to explain the said omission or implicate the Appellant in Exhibit P2 and she further omitted the name of the Appellant in the saidExhibit. It is the contention of counsel that the failure of PW1 to mention the name of the Appellant at the earliest opportunity can only lead to the conclusion that the prosecution failed to identify the Appellant as one of the killers of the deceased. This according to the Appellant’s counsel created a doubt as to the identity of the Appellant.
Relying on the case of EBRI V. STATE (2004) 11 NWLR (pt. 885) 589 S.C, he argued that where a witness omits to mention at the earliest opportunity the name or names of the accused persons or persons seen committing an offence, a Court must be careful in accepting his evidence given later and implicating the person or persons charged. He therefore urged this Court to resolve this issue in favour of the Appellant.
On issue No. 2, Counsel argued that a Court is not permitted to speculate, whether in civil or criminal proceedings. He submitted that the evidence of PW1’s testimony is tainted with material contradictions which the lower Court neglected in arriving at its decision. He submitted further that there are material contradictions in the evidence of PW1 and that her testimony ought to bediscountenanced in its entirety by the lower Court. He argued that the law is that in a criminal trial, the prosecution’s case must not be riddled with material contradictions and inconsistencies that would make it unsafe to convict the accused person. He referred this Court to the case of EMEKA V. STATE (2014) 1 NWLR (pt. 1425) 614 SC.
On issue No. 3, he argued that the law is trite that in every criminal case, the prosecution must prove its case beyond reasonable doubt and the burden on the prosecution never shifts. He referred this Court to the case of AMALA V. STATE (2004) 12 NWLR (pt. 885) 520 SC. He submitted that in any case where it is alleged that death resulted from the act of a person; a causal link between the death and the act must be established and proved beyond reasonable doubt. He submitted further that in a bid to establish the ingredients of the offence charged, the Respondent relied heavily on the testimonies of PW1, PW3 and PW5.
He submitted that PW1 testified that all the stones thrown by the Appellant and his co-accused landed on the deceased’s chest. He submitted further that PW5 in his testimony said that thedistance between where the Appellant and his co-accused were standing during the incident was not up to 50 meters. He further submitted that it is humanely impossible to haul heavy stones across a dwarf fence from about 50 meters gap with such mechanical accuracy. He submitted that there is no evidence that the Appellant who was a clergyman possesses such skill or supernatural powers to carry out this act. He therefore submitted that the evidence of the Respondent’s witnesses in this regard are mere exaggerations which ought to be disregarded by the lower Court as it lacks credibility, offends logical reasoning and is incapable of being believed. He referred this Court to the case of AIGUOKHIAN V. STATE (2004) 7 NWLR (pt. 873) 565 SC.
Relying on the case of ILIYASU V. STATE (2014) 15 NWLR (Pt. 1430) 248 CA, he argued that the extent of proximity of the victim with the alleged lethal weapon used by the accused is one of the major criteria in determination of an intention of murder. He submitted further that assuming but without conceding that it was the act of the Appellant and his co-accused that caused the death of the deceased, the distance ofabout 50 meters between the Appellant and the deceased is a clear indication that such intention does not exist in this case. He submitted also that where it is considered with the fact that the Appellant and his co-accused consistently maintained that they never threw stones or any object on the chest of the deceased or any part of his body, the inevitable conclusion will be that the Appellant did not cause or intend to cause the death of the deceased and that the alleged murder weapons were concocted by PW1 to implicate the Appellant. It is the contention of counsel that since there is evidence that the deceased was a boxing coach and that his death could have been caused by boxing punches as testified by PW3, the medical doctor, there was a bounding duty to investigate this and which investigation was not done by the Respondent. He submitted that this omission to rebut possible doubt which avails a defence to the Appellant by the Respondent is fatal to the Respondent’s case who had a duty to prove emphatically that the death of the deceased could not have been from the renowned escapades of boxing titan but by stones allegedly thrown by the Appellant.
Counsel also submitted that the sources of exhibits were never investigated by PW4, hence he could have known if they were the actual murder weapon. He submitted further that PW3 who conducted the post mortem gave evidence that merely suggested possible causes of death of the deceased and his evidence did not link the Appellant to the commission of the crime. He argued that the law is trite that a Court is not bound by the evidence of an expert especially when the evidence is contradictory in some material particular. He referred this Court to the case of SOWEMIMO V. STATE (2004) 11 NWLR (pt. 885) 515 SC.
He submitted that the trial Court wrongly inferred that circumstantial evidence from the surrounding circumstances points to the fact that it was the Appellant and another that caused the death of the deceased and intended to cause his death or cause grievous bodily harm. He argued that the law remains that for circumstantial evidence to lead to conviction, it must be cogent, unequivocal and to point to no other direction but the guilt of the Accused. He argued further that the quality of the evidence must be such as to leave no other reasonablegrounds for speculations that some other persons other than the accused committed the offence. He referred this Court to the cases of YAKUBU V. STATE (2014) 8 NWLR (pt. 1408) 111. SC; BABATUNDE V. STATE (2014) 2 NWLR (pt. 1391) 298 SC.
In his final analysis on this issue, he submitted that the evidence presented by the Respondent through its witnesses lack credibility and cannot even be relied on to infer surrounding circumstances that would warrant conviction of the Appellant. On the whole, he urged this Court to allow this appeal, set aside the decision of the Court below and to discharge and acquit the Appellant.
RESPONDENT’S ARGUMENT
On the sole issue distilled by counsel to the Respondent, he submitted that the evidence of PW1 is that the Appellant and his co-accused intentionally killed the deceased on 30/9/2016. He further submitted that PW1 maintained that the Appellant and his co-accused hurdled stones at the deceased in her presence which caused the death of the deceased. It is his contention that PW1 stated the role played by Pastor Azubuike Okoro, the Appellant and the co-accused and that it is not in her evidence that itwas the stone thrown by Pastor Azubuike Okoro that fell the deceased. He submitted that there is no mental instability or gross inconsistencies in the testimonies of PW1.
He submitted that it was because the State adopted the Police Investigative Report (Exhibit 10) to the extent that Pastor Azubuike Okoro, Hon. Patrick Ogbu, Pastor UchennaOlughu were not present at the scene/church premises when the stones that the Appellant and the co-accused hurled at the deceased which brought him down and cumulatively caused his death, that they were not included in the charge. He further submitted that the Attorney-General has the unfettered discretion to decide whom to charge to Court in a criminal trial. He referred this Court to Section 211(1) (a) of the Constitution of the Federal Republic of Nigeria, 1999. Counsel submitted that the Appellant knew the extent of the involvement of Pastor Azubuike Okoro in the case and that was why he was not called to give evidence in a matter involving his church and the deceased. He submitted further there are no contradictions in the testimony of PW1. He argued that for contradictions to be fatal, they must go to thesubstance of the case and not to be of minor or trivial nature. He referred to the testimony of PW3 and submitted that the witness attributed the cause of death of the deceased to injuries to the sub-tissues, fracture of the bone leading to severe bleeding and interference of the respiratory organs. He submitted that PW3 noted in his evidence before the Court below that no abnormalities were seen in the other organs. He argued that a medical officer in the service of a State is competent to conduct a post mortem on a deceased. He referred this Court to the case of EHOT V. STATE (1993) 4 NWLR (Pt. 290) 64.
He submitted that the name of the Appellant was mentioned by PW1 in Exhibit P1 and that PW1 mentioned the Appellant as Emmanuel Ude which she reasonably believed was the correct name. He submitted further PW1 gave satisfactory explanation of the identity of the Appellant and this is in all fours with the provisions of Section 232 and 233 of the Evidence Act, 2011. He referred this Court to the case of USUFU V. THE STATE (2007) 3 NWLR (Pt. 1820) and submitted that the prosecution has explained the circumstances on the conflicts of the name of theAppellant. He submitted that PW5 had stated in Court below that the Appellant was revealed to him as a co-attacker of the deceased. He submitted that the explanation given by PW5 has confirmed the assertion by PW1 that the Appellant was fixed at the scene of crime and physically took part in killing the deceased in this case.
He submitted that the evidence of the Appellant during trial further restated the position of the Respondent that it proved its case beyond reasonable doubt that the Appellant and the co-accused killed the deceased and further dispelled the claim by the Appellant he was not at the scene of crime. He referred this Court to Exhibit P12 at page 158 of the record of appeal. He submitted that by admitting that he and his co-accused hurled gravel stones into the compound of the deceased, the death of the deceased was a natural consequence of that act and the death of the deceased should be inferred therefrom as was held in the case of BABUGA V. STATE (1996) 7 NWLR (pt. 469) 279 @ 282. He submitted further that in a murder charge, cause of death can be inferred from the circumstances of the case and the injuries inflicted on the deceasedby the Appellant and his co-accused were graphically described in Exhibit “P6” coupled with the evidence of PW3 and lead to no other conclusion that the deceased died as a result of the act above described. He argued that proof beyond reasonable doubt is not doubt beyond shadow of doubt. He referred this Court to the cases of AGBO V. STATE (2006) 6 NWLR (Pt. 977) 545; KOLAWOLE V. STATE (2012) 12 NWLR (Pt. 1313) 104 @ Pg. 212.
On the whole, he urged this Court to hold that the prosecution proved its case beyond reasonable doubt and to dismiss this appeal and uphold the decision of the Court below.
RESOLUTION
I have read through the pages of the record of appeal before this Court and the adopted briefs of argument of counsel in support of their various postures in this appeal. For the resolution of this appeal, I consider the sole issue distilled by learned Counsel to the Respondent as apt and germane for the determination of this appeal. The said issue is hereunder reproduced as follows:
“Whether the trial Court was right when it held that the prosecution had proved its case beyond reasonable doubt?”
The law is longsettled that in a criminal trial, the prosecution is duty bound to prove his case beyond reasonable doubt. This is the import of Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which presumes an accused innocent until he is proven guilty. The burden placed on the prosecution is not discharged until the guilt of the accused person is properly established. See DANBABA V.THE STATE (2018) 11 NWLR PART 1631 AT PAGE 444 – 445; IDEMUDIA V. THE STATE (1999) 7 NWLR (Pt. 610) 202 at 215 F-G; ESANGBEDO vs. THE STATE (1989) 4 NWLR (Pt. 113) 57
The Appellant was charged with the offence of murder contrary to Section 319(1) of the Criminal Code Law Cap 33. Vol. 1 Laws of Ebonyi State of Nigeria. On the offence of murder, it is settled law, that in order to obtain conviction of any criminal offence, the prosecution could use any of the under mentioned methods. The methods are:
1. Through evidence of eye witness or witnesses
2. Through voluntary confessional statement of the accused or accused persons, and
3. Through circumstantial evidence
Any of the above mentioned methods could be adopted by theprosecution to establish the offence of murder by proving the under listed ingredients, namely:-
1. The death of a human being
2. That the death was caused by the act or commission of the accused person/and
3. That the act of the accused was done intentionally or with Knowledge that death or grievous bodily harm was the probable consequence.”
See AKINSUWA V. STATE (2019) LPELR – 47621 (SC).
In the present case, the issue as to whether there was death of a human being is not in dispute. Both the Appellant and the Respondent from the brief filed and the journey of this case so far confirmed the fact that one Philip UgwuAbani had died. The area of contention is on whether the death was caused by the act or commission of the Appellant and that the act of the Appellant was done intentionally or with knowledge that death or grievous bodily harm was the probable consequence.
In a bid to discharge the burden of proof placed on it by law, the Respondent called 5 witnesses who tendered several documents. The trial Court after reviewing evidence before it found that the Appellant’s act caused the death of the deceased,hence his sentence and conviction by the trial Court. Now, whether the findings of the trial Court were right or wrong is a question to be answered after revisiting the record of appeal and studying the evaluation of evidence led at the trial. It is pertinent therefore to begin by reviewing the extra judicial statement of the relevant witnesses with a view to ascertaining truly if the Appellant was properly identified as one of those whose acts of throwing stones caused the death of the deceased and whether the stones thrown at the deceased were the actual cause of his death.
First since the Respondent during trial appeared to have relied on the direct eye witness account of PW1, then her extra judicial statements readily comes to mind as shown in pages207 – 211 of the record of appeal. PW1 stated in Exhibit P1 that;
“Today 30/9/2016 at about 5:30 pm my husband came back from work, so I was outside washing clothes, he called me, I went and welcome him. Later I came back to where I was washing clothes and continue to wash the clothes, he follow me to where I was washing. I and him was discussing, he asked me whether that invocation theynormally sent whether they sent it again. I told him yes, they sent it again. Then one pastor Azubuike Okoro, the owner of Endless Life in Christ Church was passing may be he heard what I was telling my husband. Pastor Azubuike Okoro, Evangelist OkoTochukwu, Emmanuel Ude and Uchenna, I don’t know his father’s name came to our compound unexpectedly, so there is a fence which is not high like that they stay at their own side of the fence then that pastor Azubuike Okoro told my husband that he will first of all hit him with his own stone before my husband with sent his own stone. He now throw his own stone on my husband and run away then OkoTochukwu throw his own stone on my husband chest. Emmanuel Ude and Uchenna throw their own stones on my husband chest. When they saw that my husband has fell down all of them disappear…” (sic)
I have gone through Exhibit P2 made by PW1 to the police on 4/10/2016. The statement of PW1 in Exhibit P2 is substantially the same with her statement in Exhibit P1 only that Exhibit P2 contains a detailed and a chronological outline of the controversies between the parties that led to the ill-fated incidentwhich culminated into the death of the deceased.
To start with, the Appellant’s counsel made heavy weather on the identification of the Appellant as part of those who perpetuated the act which lead to the death of the deceased. In the excerpts of Exhibit P1 above, it is crystal clear that PW1 mentioned the names of Azubuike Okoro, OkoTochukwu, Emmanuel Ude and Uchenna as the individuals who threw stones at her husband which resulted in his death. As per the identity of the Appellant, PW1 gave his name as “Emmanuel Ude” meanwhile his real name is Samuel Udeh as stated on the information filed by the Respondent. It should be noted that PW1 gave the name “Emmanuel Ude” at the earliest opportunity in her first statement made to the police on date the incident occurred. However, I am of the firm view that PW1 knew the Appellant before the incident as the error in providing his correct name is not fatal as his identity to her was never in dispute. My reasons for this is not farfetched, it is on record that the deceased and the Appellant together with the Appellant’s church members had a long standing dispute relating toboundaries of their land which disputes resulted in confrontations from both sides. Also from the testimony of the Appellant, he admitted that he was present at the scene of crime and participated in the throwing of gravel/sand on the roof of the deceased. Therefore, it is my opinion that the failure of PW1 to mention the name of the Appellant as it appears on the information filed created no doubt as to the identity of the Appellant as part of those who murdered her husband on the 30th day of September, 2016.
The next issue is to decide whether from the evidence adduced, the Appellant’s acts of throwing stones caused the death of the deceased and whether the stones thrown at the deceased were the actual cause of his death. The direct evidence of PW1 was that she was physically present when the Appellant and others were throwing stones at the chest of the deceased until the effect of the said stones caused the deceased to fall down. PW2, a retired police officer, gave evidence that he was a neighbour to the scene of the crime and that he was attracted to the crime scene by the alarm raised by PW1 that the Appellant and some others had killed thedeceased. PW2 testified that when he ran to the crime, he saw the deceased lying face down and PW1 was holding him at his back.
It suffices to state that although PW1 was the only eye witness at trial, however the story of PW2 corroborates some crucial facts stated in the extra judicial statements of PW1. PW3 was the Medical Practitioner who carried out the post mortem examination on the deceased and his testimony can be found at pages 133 – 135 of the record of appeal. During examination-in-chief at pages 133 – 134 of the record of appeal, he testified that:
“…On the examination of the body I discovered it was already embalmed but appeared moderately cyanosed (bluesh). There was a contutional injury located at the right side of the chest measuring 5cm in diameter. It is located 10cm below the right nipple. There was also a swelling at the left side of the chest within the left side of the sternum to the ancillary region. The sternum is the chest bone. The auxiliary is just the armpit. On dissection of this swelling, the 3rd, 4th and 6th ribs were injured. The soft tissues which include the subcutaneous, the muscle containedup to 500ml of clothed blood. The 4th rip (sic) was fractured (broken). The lower part of the left lung sustained contutional injury measuring 6 × 6cm. The area of the lung affected contained blood within the tissue of the lung (intra – parenchymal haemorrhage).
After this report, the opinion as the cause of death was summarized as injuries to the soft tissues, fracture of the bone leading to severe bleeding interference of the respiratory system.
No abnormality was seen in other organs. The findings were documented and handed over to the police. Any blunt object could inflict such contutional injuries discovered in the deceased. Blunt objects include a chair, stone, pestle etc…”
The Appellant in his statement made to the police which was tendered as Exhibit P12 stated therein that his co-accused threw some pieces of block on the roof of the house of the deceased. Under examination-in-chief at page 158 of the record of appeal, he testified that himself and his co-accused gathered gravel stones on the ground and threw them on the roof of the deceased’s house. However under cross examination at page 161 of the record ofappeal, he testified that when the deceased was throwing stones on the roof of their Church, they retaliated by throwing sand on the roof of his house.
On one breadth, the Appellant stated in his extra judicial statement that his co-accused threw block on the roof of the house of the deceased; he admitted on the second breadth during examination-in-chief that he threw gravel stones on the roof of the deceased. However, during cross-examination, he testified that it was sand that he threw on the roof of the deceased. The trial Court when faced with the discrepancies in the case of the Appellant evaluated his evidence as follows:
“In the instant case, it is obvious that the resolution of whether it was the stones, gravel or sand or pieces of block that the accused persons threw in this case will definitely influence decisively, the establishment of the fact in issue which is; with what was the deceased killed, or what killed the deceased in this case?
It is trite law that where a witness gives inconsistent and/or contradictory evidence on material facts, the evidence on the point must be regarded as unreliable and also, it must be rejected.
And, the relevant contradiction is that which amounts to disparagement or other evidence adduced, thereby making unsafe for the Court to rely on either…
Thereby, based on the principle of law expounded above, the Court will regard the two contradictory evidence of PW2 as unreliable. Furthermore, no witness is entitled to honour or credibility when he has two materially inconsistent evidence given on oath by him on record. Such a witness does not deserve to be described as truthful…”
I am of the firm view that the finding of the trial Court in respect testimony of the Appellant is born out of record and deeply rooted in law. I see no reason why I should tamper with the said finding.
I am of the opinion that based on the evidence on the cause of death of the deceased as adduced by PW3 and the eye witness, PW1 as well as the statements of the Appellant in Exhibit P12 which were rightly found by the trial Court as being inconsistent with his testimony during trial, I am clearly inclined to believe the evidence of PW1 that the stones the Appellant and his co-accused pelted at the deceased were not gravel stones as stated by the Appellant.
As established by the evidence of PW3 that the impact of the stones could inflict the type of injuries that killed the deceased corroborated the oral testimony of PW1 that her husband was stoned to death in her presence.
The learned counsel to the Appellant also made heavy reliance on the fact that since it was established that the deceased during his lifetime was a boxer, then his death could have been caused by the punches he received in the course of his boxing profession. I agree with the trial Court when it held at page 181 of the record that:
“There was no other evidence about the occurrence of any other act that could have caused the type of injuries found on the deceased. There was no exchange of fist punches between the deceased and the 1st accused person or others”
As a matter of fact the testimony of DW3 showed that there was no abnormality in any other organs of the deceased, therefore who hit the deceased with heavy blunt objects if not the Appellant and his co-accused as presented by PW1, who was the eye witness. Based on the testimony of PW1 and the expert testimony of PW3, the cause of death can be linked to the act ofthe Appellant with certainty and clarity and not on the basis of conjecture, imagination or loose induction as argued by the Appellant’s counsel. The Appellant as a matter of the evidence adduced at trial knew that his act will result in death or that grievous bodily harm was the probable consequences of his actions. I therefore agree with learned trial judge when he held at page 197 – 198 of the record of appeal that “there was no other reasonable hypothesis created in the peculiar facts and circumstances of this case than that the accused persons are responsible for the infliction of the injuries that caused the death of the deceased Philip UgwuAbani in this case.”
The law is trite that where a trial Court has dutifully, efficiently and properly evaluated the evidence adduced before it, the Appellate Court will not interfere. This Court will therefore only interfere where it is apparent on the printed record that the findings of the trial Court cannot be supported or are not proper conclusions and inferences to be drawn from the evidence. In CHIEF VICTOR WOLUCHEM & ORS V. CHIEF SIMON GUDI (1981) LPELR – 3501 (SC), MyLord Nnamani, JSC observed as follows:
“It is now settled that if there has been proper appraisal of evidence by a trial Court, a Court of Appeal ought not to embark on a fresh appraisal of the same evidence in order merely to arrive at a different conclusion from that reached by the trial Court. Furthermore, if a Court of trial unquestionably evaluates the evidence then it is not the business of a Court of Appeal to substitute its own views for the views of the trial Court…” It therefore follows that, where the findings of fact by the trial Court are amply supported by the accepted evidence on record, and such evidence are neither perverse nor unreasonable, this Court will not interfere with them”
Having fastidiously perused the record compiled and transmitted to this Court and the decision of the trial Court as contained in pages 166 – 200 of the record, I am of the unflinching opinion that that the learned trial judge properly evaluated the facts placed before it and displayed a thorough understanding of the basic principles of our criminal jurisprudence in reaching its conclusion.
On the whole, the testimonies of theprosecution witnesses on the fact that a human being died; that the death was caused by the act of the Appellant and that the act of the Appellant was done intentionally or with knowledge that death or grievous bodily harm was the probable consequences proved the guilt of the Appellant beyond reasonable doubt.
I bear in mind the argument of learned counsel to the Appellant that the evidence of the Respondent’s witnesses especially that of PW1 have contradictions, however it is the law that the Respondent need do is prove the guilt of the Appellant beyond reasonable doubt and the law has crystallized to the effect that beyond reasonable doubt does not mean beyond every reasonable shadow of doubt. Once the evidence adduced by the parties are placed on the scale of justice and the Court is satisfied that the guilt of the Appellant has been proved beyond reasonable doubt, then a conviction and sentencing should follow.
In my final analysis, it is my view that the Respondent discharged the onus and the standard of proof required of it to secure a conviction of the offence charged.
On the whole, I hold that this appeal is unmeritorious andsame is hereby dismissed. Accordingly, the judgment of the trial Court Per Benson A. N. Ogbu, J., delivered on 30th April, 2018 wherein the learned trial Judge found the Appellant guilty of the offence of murder and sentenced him to death by hanging is hereby affirmed.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I agree.
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 ABUBAKAR SADIQ UMAR, JCA and I totally endorse the reasoning and conclusion therein.
I equally hold that the appeal lacks merit and I adopt the consequential orders in the lead judgment as mine.
Appearances:
SIR EJIKE EZENWA, with him, C.C. UMEORAH ESQ.For Appellant(s)
JONATHAN E. NWAONUMAH, ESQ. Deputy Director, Public Prosecutions, Ministry of Justice, Ebonyi StateFor Respondent(s)