BEFORE THEIR LORDSHIPS
OLABODE RHODES-VIVOUR (Presided and Delivered the lead Judgment)
MARY UKAEGO PETER-ODILI
CLARA BATA OGUNBIYI
AMIRU SANUSI
SIDI DAUDA BAGE
FRIDAY 9th FEBRUARY, 2018
COUNSEL FOR THE PARTIES
FOR THE APPELLANT(S)
- L.M. ALOZIE Esq. With him
- C. A. Amokaha for the Appellant
FOR THE RESPONDENT(S)
- K.A. Lewanoja Esq. Assistant Chief State Counsel, Imo State, for the Respondent
APPEAL
This is an appeal against the judgment of the Court of Appeal, Owerri Division, which in dismissing the appeal filed by the Respondent, affirmed the decision of Imo State High Court, Oguta which had convicted of the charge of murder and sentenced the Appellant to death by hanging.
ISSUES OF LAW INVOLVED
APPEAL - Attitude of the Supreme Court to concurrent findings of Court of Appeal and Trial Court
CRIMINAL LAW & PROCEDURE- Proper section under which to charge for murder
CRIMINAL LAW & PROCEDURE- Essential elements of murder which must be proved
CRIMINAL LAW & PROCEDURE- When an accused person can be said to have caused the death of the deceased
CRIMINAL LAW & PROCEDURE- The prosecution is not obliged to provide a long list of witnesses to establish its case
EVIDENCE - Absence of medical evidence is not fatal when eye witness of death is adduced
EVIDENCE - What proof beyond reasonable doubt means and does not mean
EVIDENCE - When oral evidence is backed by documentary evidence
EVIDENCE - What kind of discrepancy or contradiction in evidence the court considers material
EVIDENCE - Burden of Proof and Standard of proof in criminal cases
EVIDENCE - What shows the intention of the accused in murder cases
WORDS & PHRASES - Meaning of “Evaluation of evidence”
SUMMARY OF FACTS OF THE CASE
The Appellant as the accused person was charged before the Imo State High Court, Oguta, for the offence of murder. The trial High Court found the Appellant guilty as charged, convicted and sentenced him to death.
Dissatisfied with the judgment, he appealed against the decision at the Court of Appeal (Owerri Division). The Court of Appeal in its judgment dismissed the appeal, affirmed the judgment of the trial court and upheld the conviction and sentence to death of the Appellant.
Dissatisfied, the Accused/Appellant, appealed against the judgment of the Court of Appeal at the Supreme Court.
ISSUE FOR DETERMINATION
Whether the prosecution proved the guilt of the appellant beyond reasonable doubt
HELD (Unanimously dismissing the appeal)
The standard of proof which the prosecution must meet in a criminal case is beyond reasonable doubt.
PER OLABODE RHODES-VIVOUR, JSC (at page 6; paras…..) [RATIO 1]
Section 135 (1) of the Evidence Act states that the standard of proof where the commission of a crime is in issue is proof beyond reasonable doubt. If any of the issues formulated by the respondent are answered in the negative the conviction of the appellant would be faulty, in that the prosecution did not prove the guilt of the appellant beyond reasonable doubt. In the light of the above the appellant’s sole issue which covers all the respondent’s issues shall be considered in determining this appeal.
It is proper to charge an accused for the offence of murder under either Section 316 or Section 319 of the Criminal Code.
PER OLABODE RHODES-VIVOUR JSC (page 15) [RATIO 2]
Section 316 of the Criminal Code defines the offence of murder, while section 319 of the Criminal Code states the punishment for murder. It is very much in order to charge for the offence of murder under any of the sections.
The ingredients of the offence of murder are that the deceased died, his death was caused by the accused and his act that caused the death was done by the accused with intent to cause the death or grievous bodily harm to the deceased.
PER OLABODE RHODES-VIVOUR JSC (at page 15-16; paras….) [RATIO 3]
For the prosecution to succeed in a charge of murder under section 319 of the Criminal Code, applicable in Imo State of Nigeria the following must be proved beyond reasonable doubt.
(a) that the deceased died;
(b) that the death of the deceased was caused by the accused person.
(c) that the act or omission of the accused person which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was a probable consequence.PER PETER-ODILI JSC (pages 7-8) [RATIO 3A]
To answer whether or not the prosecution proved the charge against the accused person beyond reasonable doubt is to go into what the prosecution needs do in a charge of murder to secure a conviction. To get a conviction effected, the prosecution must prove the following:
(a) That the deceased died;
(b) That the death of the deceased was caused by the accused and
(c) That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was a probable consequence. I refer to Eyo V. State (2010) ALL FWLR 1928; Omonga V. State(2006) ALL FWLR (Pt. 306) 930; Ogba V. State (1992) 2 NWLR (Pt. 222) 164; Ubini V. The State (2003) 18 NWLR (Pt. 821) 224. The prosecution in carrying out this duty required of it by law in establishing the essential ingredients of the offence of murder, provided the testimonies of PW1, PW2, PW3 and PW4.
Proof beyond reasonable doubt does not mean proof beyond every shadow of doubt. It is proof with evidence that is concrete and definite showing the guilt of the accused person.
PER OLABODE RHODES-VIVOUR JSC (page 16) [RATIO 4]
Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. See Osuagwu V. State (2O13) 5 NWLR Pt.1347 p.360.
An accused person can only be found guilty of murder if the requisite ingredients of the offence of murder – the victim died; the accused intended to kill or cause grievous bodily harm to the deceased or to some other person; the act or omission that caused the death was an unlawful one – are proved.
PER OLABODE RHODES-VIVOUR JSC (pages 17-19) [RATIO 5]
Section 316 of the Criminal Code states when the killing of a person amounts to murder. Once the act of the appellant that resulted in the death of the deceased is one of the under-listed circumstances, it is murder, and the act of the appellant that caused the death of the deceased would be said to have been proved beyond reasonable doubt. The death of the deceased can only be caused by the accused person if:
(a) the accused person intends to cause the death of the deceased or some other person;
(b) the accused person intends to do to the person killed or some other person some grievous harm;
(c) death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such nature as ( to be likely to endanger human life;
(d) the accused person intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence;
(e) death is caused by administering any stupefying or overpowering things for either of the purposes last aforesaid;
(f) death is caused by willfully stopping the breath of any person for either of such purposes;
is guilty of murder.
In (b) it is immaterial that the accused person did not intend to hurt the particular person who is killed.
In (c) it is immaterial that the accused person did not intend to hurt any person.
In (d) (e) and (f) it is immaterial that the accused person did not intend to cause death or did not know that death was likely to result.
It follows that the act of the appellant which caused the death of the
deceased must be either (a), (b), (c), (d), (e) or (f).
Finally it must be proved beyond reasonable doubt that the act of the appellant that caused the death of the deceased was intentional and the appellant knew that death is probable consequence of his act. When the three elements or ingredients are proved beyond reasonable doubt the accused person is guilty of murder. See Uguru V. State (2002) 4 SC (Pt. ii) p. 13; Salawu V. State (2014) 12 SC (Pt. ii) p. 134.
When oral evidence is supported by documents whose contents prove what was said orally, then that oral evidence becomes more credible in law.
PER OLABODE RHODES-VIVOUR, JSC (at page 20-21; paras……) [RATIO 6]
Finally, when documentary evidence supports oral evidence, oral evidence becomes more credible. Documentary evidence always serves as a hanger from which to assess oral testimony. See Kindely & ors V. M. G. of Gongola State (1988) 2 NWLR (Pt. 77) P.473. Omoregbe V. Lawani (1980) 3-4 SC P.117 Olowofoyeku V. AG Oyo State (1990) 2 NWLR (Pt. l32) p. 369
It is not every discrepancy in evidence that is material, but where there is a manifest contradiction between two pieces of evidence; when both are inconsistent with respect to issues in dispute in the case, then it will be considered to be material.
PER OLABODE RHODES-VIVOUR, JSC (at page 22, 25-27; paras…….) [RATIO 7]
The case presented by the appellant is that if the trial court had taken into account the contradictions in this trial and had properly evaluated the evidence it would be clear that it was not the appellant who killed the deceased. A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, and not when there is just a minor discrepancy between them. Two pieces of evidence contradicts one another when they are themselves inconsistent. A discrepancy may occur when a piece of evidence stops short of or contains a little more than, what the other evidence says or contains some minor differences in details, See Gabriel V. State (1989,) 5 NWLR (Pt. 122) p. 460 Idiok V. State (2006) ALL FWLR (Pt. 333) p. 1788
PW1 said it was dark and the lantern was on, while PW2 said that the lantern was not on. PW1 said that the appellant gave matchet cut to herself and her daughter outside the house but in their compound, while PW2 said the incident took place in the backyard. Before a court can be satisfied that there are contradictions in the case of the prosecution, the contradictions must be material. Where two or more witnesses, witness an event, in this case murder and after some time they are told to say what they saw. If their testimony is exactly the same, there would be very strong suspicion that the witnesses had been tutored. There are bound to be minor discrepancies and this is allowed. There would be contradictions in the testimony of two witnesses where there is a clear departure on material facts from the testimony of one witness by the other. Variations, discrepancies are expected. Where there are none it would be safe to conclude that the witnesses were tutored and that would not be reliable evidence. Whether the lantern was on or off is immaterial as the identity of the appellant was never in doubt.
The number of cuts the deceased received is also immaterial. There would have been a contradiction if the witnesses said that the deceased died from gunshot or from drowning or something different from matchet attack. Testifying that the murder occurred in the yard of the deceased is sufficient. To my mind there is no contradiction in the testimony of PW1 and PW2, rather there are discrepancies and this is allowed.
PER PETER-ODILI, JSC (at page 11; paras……) [RATIO 7A]
The appellant had sought to raise contradictions as between the evidence of the prosecution witnesses as to whether the matchet cuts were three or two. Such discrepancies are minor variations that could easily occur in the narrations by different persons in a given event that does not go into the root of the matter. The important thing is that the deceased died from matchet cuts which the medical doctor stated to be two and if the eye-witness, PW2 saw three or more cuts that is understandable and would not diminish the fact of matchet cuts from which injuries caused the death of the victim.
When an accused person is shown to have struck the deceased very hard with force that caused grievous bodily harm immediately to the deceased, the accused person is reasonably taken to have intended to cause death.
PER RHODES-VIVOUR, JSC (at pages 27-28; paras…….) [RATIO 8]
The act of the appellant which caused the death of the deceased easily comes under section 316(a) or (b) or (c)
“Was the act or omission of the accused person which caused the death of the deceased intentional with knowledge that death or grievous bodily harm would occur.”
Where the appellant strikes the deceased with such force that the deceased’s blood vessels were severed and exposed and blood gushed out of his abdomen, the reasonable conclusion is that the act of the appellant that caused the death of the deceased was intentional with the clear understanding that death or grievous bodily harm would occur. In this case grievous bodily harm occurred and this resulted in the death of the deceased. The ingredients of murder, (a) (b) and (c) alluded to earlier in this judgment are proved beyond reasonable doubt.
Evaluation of evidence is when the court has received evidence from the parties and then decides what evidential weight to attach to each of the pieces of evidence.
PER OLABODE RHODES-VIVOUR, JSC (at page 31; paras…….) [RATIO 9]
It is the duty of the trial judge to receive all relevant evidence. That is perception. The next duty is to weigh the evidence in the context of the surrounding circumstances of the case. That is evaluation. A finding of fact involves both perception and evaluation. See Gbileve V. Addingi (2014) 1-2 SC (Pt. iii) p. 1 Olonade V. Sowemino (2014) 5 SC (Pt.ii) p.97.
The eye-witness account of a person who saw the accused person commit the offence goes a long way to establish the guilt of the accused person.
PER PETER-ODILI, JSC (at pages 10-11; paras……) [RATIO 10]
The evidence of PW1 is an eye-witness account and so also the testimony of PW2, the daughter of PW1 and the deceased. She stated thus:
“The accused ran to my father and gave him matchet cut on his hand, the left and right side of his stomach. My father the deceased fell down and the accused ran away. People took my father to the hospital but he died on the way”
PW1 had further stated as follows:
“The accused came to our house with a matchet calling Florence, Florence. I asked the accused what the matter was as he was calling me with a loud voice. The accused said if he did not kill my husband today, he would kill me. I was pleading with the accused not to kill us but he gave me matchet cuts.....”
The eye-witnesses account of PW1 and PW2 was graphic and the appellant did nothing much to dent the strength of the evidence and so the trial court had no difficulty in finding not only that the deceased died but that he died as a result of the injuries inflicted on him by the appellant who intended his death by the act of the matchet cuts. Those eye-witness reports were further buttressed by the evidence of PW3, Jonathan Nnawuihe, the Medical Doctor who tendered the report as Exhibit C. The PW4, the investigating Police Officer narrated his conduct of the investigation which evidence was not impugned.
Even though medical evidence that the deceased is dead is desirable in a murder case, the absence of such medical certificate will not hinder the proof of death as direct and credible eye witness evidence can be sufficient to prove the guilt of the accused.
PER PETER-ODILI, JSC (at page 11; paras…….) [RATIO 11]
This position is buttressed by the fact that medical evidence though desirable, the absence of it would not forestall the proof of death caused by injuries as stated by either eye-witnesses which is direct evidence or inferred from circumstances surrounding the transaction. See Ogbu V. State (1992) 8 NWLR (Pt. 259) 255; Ogoala V. The State (1991) 2 NWLR (Pt. 175) 509; Idiok V. State (2006) ALL FWLR (Pt. 333) 1788); Ehot . State (1993) 4 NWLR (Pt. 290) 663.
In a criminal proceeding, the prosecution is not bound to produce a list of numerous witnesses in order to secure a conviction but to adduce credible and conclusive evidence of the guilt of the accused person.
PER PETER-ODILI, JSC (at page 10; paras……) [RATIO 12]
This is so because the prosecution is not needed to provide a list of witnesses or a specified number to be taken seriously, rather all the prosecution is duty bound to do is proffer credible witnesses or even one witness whose evidence rock solid, credible and cogent such that the proof of the essential elements of the offence such as murder as we are tackling herein and the court would go on to make a finding of guilt and proceed to conviction and sentence. This is particularly so where the evidence proffered by the defence as DW1 and DW2 is so watery that it does nothing to shake the weight of evidence placed on the table by the prosecution
PER AMIRU SANUSI, JSC (at pages 3-5; paras…….) [RATIO 12A]
It was part of the grouse of the learned counsel for the appellant that the prosecution failed to call material witnesses and material evidence thereby creating doubts in the mind of the lower court. To my mind and indeed the trite law is, that it is not necessary for the prosecution in order to discharge the onus of proof lying upon it, to call every available piece of evidence or witness. It is enough if it calls or tenders evidence which in its judgment, is sufficient to discharge the onus of proof, the law places upon it. What is relevant is always the credibility of a witness and not the number or host of witness called in proof of a case. The evidence of a single witness if believed by the court, can establish a criminal case even in a murder charge. See Effiong V. State (1998)8 NWLR (Pt.562)362. In this instant case, it is noted by me, that the prosecution had called eye witnesses who gave full and unpolluted account of all that had happened which they witnessed firsthand, such as PW1 the widow of the deceased, as well as PW2 another eye witness. Their testimonies went a long way in establishing the ingredients of the offence of murder on which the appellant was charged, tried, convicted and sentenced by the trial court which said latter1s decision was later affirmed by the lower court. It needs to be added, that the pieces of evidence given by the prosecution witnesses mentioned supra, were not contradicted or controverted materially as would cast some doubts in the mind of the trial court to warrant same being disbelieved or rejected. On the whole, with these few remarks, I must say, that I fully and entirely agree with the reasoning of my lord, Rhodes-Vivour, JSC in his lead judgment wherein, he concluded that this appeal is unmeritorious and must be dismissed
The concurrent findings of the Court of Appeal and the trial court will not be interfered with ordinarily by the Supreme Court unless it is shown that there is a miscarriage of justice in the evaluation of evidence.
PER PETER-ODILI, JSC (page 13) [RATIO 13]
This is an instance where the concurrent findings of fact of
the two courts below are to be left undisturbed and not to be interfered with as there is no miscarriage of justice. See Emmanuel Ben V. The State (2006) 7 SCNJ 217; Ogbogu V. Ukwuegbu(2003) 4 SCNJ 79; Durugo V. State (1992) 7 NWLR (Pt. 255) 525 at 535; Eholor V. Osayande(1992) 6 NWLR (Pt. 24) 524. From the foregoing and the better reasoned lead judgment, I find no merit in this appeal and I dismiss it.
LIST OF STATUTES REFERRED TO IN THE JUDGMENT
Section 135 (1) of the Evidence Act
Sections 316 and 319 of the Criminal Code Law, Laws of Eastern Nigeria 1963, applicable in Imo State of Nigeria
CASES REFRRED TO IN THE JUDGMENT
Abeke Onafowokan V. State (1987) 7 SCNJ 233
Adaje V. The State (1979) 6 - 9 SC 28;
Adelumola V. State (1988) 1 NWLR (Pt. 73) 683;
Adi V. Queen 14 WACA;
Ahmed V. State (2002) FWLR (Pt. 90) 1365 at 1376.
Ajaghe V. Idowu (2011) 17 I’TWLR (Pt. 1276,) p.422.
Akindipe V. State (2012) 6 KLR (Pt. 313) at 2051;
Akinkumi V. The State (1987) 3 SC 152;
Almu V. State (2009) 10 NWLR (Pt. 1148) 31 at 46;
Amobi V. Nzegwu (2005) 12 NWLR (Pt. 938) 120 at 138;
Asariyu V. The State a (1974-1975) 9 NSCC p.398.
Awosile V. Sotumbo (1986) 3 NWLR (Pt. 29) 486 at 487;
Bozin V. State (1985) 2 NWLR 465 at 470-471;
DPP V. Smith (1960) ALL ER 161;
Durugo V. State (1992) 7 NWLR (Pt. 255) 525 at 535;
Effiong V. State (1998)8 NWLR (pt.562)362.
Eholor V. Osayande(1992) 6 NWLR (Pt. 24) 524.
Ehot V. State (1993) 4 NWLR (Pt. 290) 663.
Emmanuel Ben V. The State (2006) 7 SCNJ 217;
Eyo V. State (2010) ALL FWLR 1928;
Gabriel V. State (1985) 4 NWLR (Pt. 122) 457.
Gabriel V. State (1989) 5NWLR (Pt.122) p. 460.
Garba V. State (2000) 6 NWLR (Pt. 661).
Gbileve V. Addingi (2014) 1-2 SC Pt. iii) p.1
George V. FRN (2011) ALL FWLR 664 at 740;
Haruna V. A. S. Federation (2012) 3 KLR (Pt. 309) 1322;
Hyam V. DPP (1974) 2 ALL ER 43.
Idiok V. State (2006) ALL FWLR (Pt. 333) p.1788.
Jammal V. State (1999) 12 NWLR (Pt. 632) 582 at 579;
Kindely & Ors V. M. G. of Gongola State (1988) 2 NWLR (Pt.77) p.473.
Madu V. State (2012) 6 SC (Pt.i) p.80
Nwachukwu V. State (2002) 7SC(Pt.i) p.124
Ogba V. State (1992) 2 NWLR (Pt. 222) 164;
Ogbogu V. Ukwuegbu(2003) 4 SCNJ 79;
Ogbu V. State (1992) 8 NWLR (Pt. 259) 255;
Ogoala V. The State (1991) 2 NWLR (Pt. 175) 509;
Okoro V. State (2012) JSC (Pt. i) p.1
Olonade V. Soweinino (2014) 5SC (Pt. ii) p.97.
Olonade V. Sowemino (2014) 5 SC (Pt. ii) p.97.
Olowofoyeku V. AG Oyo State (1990) 2 NWLR (Pt. l32) p. 369.
Omonga V. State (2006) ALL FWLR (Pt. 306) 930;
Omoregbe V. Lawani (1980) 3-4 SC P.117
Onubogu V. State (1975) 9 NSCC p. 358.
Onubogu V. The State (1974) ECSLR 403 at 411
Ornoreghe V. Lawani (1980) 3-4 SC P.117
Osuagwu V. State (2013) 5 NWLR (Pt.1347) p.360.
Salawu V. State (2014) 12 SC (Pt.134);
Ubini V. The State (2003) 18 NWLR (Pt. 821) 224.
Udor V. State (2014) 5-6 SC (Pt. ii) p.177
Uguru V. State (2002) 4 SC (Pt. ii) p.13
JUDGMENT
OLABODE RHODES-VIVOUR, JSC (Delivering the lead Judgment)
This is an appeal from the Judgment of the Court of Appeal (Owerri Division) delivered on 20th March 2013, which affirmed the death sentence of an Oguta High Court appellant for Murder. (Imo State) on the
The one count charge against the appellant reads:
STATEMENT OF OFFENCE
MURDER, contrary to section 319 (1) of the Criminal Code Cap 30, vol. ii Laws of Eastern Nigeria 1963, applicable in Imo State of Nigeria
PARTICULARS OF OFFENCE
ELUJI KINGSLEY EZE on the 7th day of March, 2005 at Umuobi Assa Ohaji in the Oguta Judicial Division murder one Silas Orji.
The appellant/accused person pleaded not guilty to the charge.
The respondent called four witnesses in proof of the charge of Murder. Statements of the appellant made on 8th March 2005, 10th March 2005 and the medical report on the cause of death of the deceased were admitted as exhibits.
The appellant gave evidence in his defence and also called his daughter as defence witness No.2 The learned trial judge eventually delivered a considered judgment on 26th July 2010 wherein he found the appellant guilty of murder and sentenced him to death.
Dissatisfied with the judgment the appellant filed an appeal. It was heard by the Court of Appeal, Owerri Division. Affirming the judgment of the High Court the Court of Appeal concluded in these words:
“In the light of all I have stated above, it remains for me to say that this appeal lacks any scintilla of merit and is hereby dismissed. I uphold the judgment of the High Court of Imo State Holden at Oguta presided over by Hon. Justice P.C. Ikpearna which judgment was delivered on 26th July 2010 in which the appellant was sentenced to death by hanging. Appeal is accordingly dismissed.”
This appeal is against that judgment. Briefs of argument were filed and exchanged by counsel. Appellant’s brief was filed on 19th July 2013, while the Respondent’s brief was filed on 27th August 2013.
Learned counsel for the appellant formulated a sole issue for determination. It reads:
- Whether the prosecution proved the guilt of the appellant beyond reasonable doubt.
Learned counsel for the Respondent formulated three issues for determination. They are:
Whether prosecution proved that the appellant committed the offence of murder as charged and found by the two courts below.
Whether there are material contradictions in the evidence of the prosecution witnesses.
Whether the learned Justice of the Appeal Court were right by declining to interfere with the findings of the trial court on the grounds that they properly evaluated evidence before it.
I have examined the issues for determination formulated by both sides. It is clear that learned counsel for the prosecution’s sole issue covers the three issues formulated by the respondent, to wit.
a) Whether the appellant committed murder.
b) Whether there are material contradictions in the evidence of the prosecution’s witnesses.
c) Whether there was proper evaluation of evidence.
1 Section 135 (1) of the Evidence Act states that the standard of proof where the commission of a crime is in issue is proof beyond reasonable doubt. If any of the issues formulated by the respondent are answered in the negative the conviction of the appellant would be faulty, in that the prosecution did not prove the guilt of the appellant beyond reasonable doubt. In the light of the above the appellant’s sole issue which covers all the respondent’s issues shall be considered in determining this appeal.
At the hearing of the appeal on 16th November 2017 learned counsel for the appellant, L.M. Alozie Esq., adopted the appellant’s brief filed on 19th July 2013 and urged the court to allow the appeal.
Learned counsel for the respondent adopted the respondent’s brief filed on 27th August, 2013 and urged the court to dismiss the appeal and affirm the concurrent decisions of the courts below.
At about 7.30 p.m. on 7th March, 2005 at Umuobi, Assa in Oguta Judicial Division, Imo State PW1 and PW2 were cooking their dinner in their home when the appellant appeared brandishing a matchet, and calling Florence, Florence, (PW1, the wife of the deceased). PW1 asked the appellant what was the matter. The appellant told her that if he did not kill her husband, he would kill her. PW1 pleaded with the appellant not to kill her and her husband. The appellant was unyielding. He gave her a cut on her arm with the matchet.
PW2. (PW1’s daughter) asked the appellant why he struck her mother with the matchet. His reply was to strike her with the matchet on her left shoulder.
PW1 and PW2 started crying and raising alarm. The deceased appeared on the scene asking his wife and daughter why they were crying. The appellant heard the deceased, ran to him and struck him with the matchet on his left arm almost severing the arm. He also struck him on the stomach. The appellant ran away, while the deceased was taken to the hospital by people attracted to the scene by the pandemonium. Unfortunately he died before arriving at the hospital.
This are the facts as told by the prosecution witnesses (i.e. PW1 and PW2, eye witnesses) as to how the deceased died.
The defence of the appellant was completely different.
According to the appellant he sent his two daughters to Mr. Mebere at Ohaji to grind cassava. They returned home very late. On why they came home late they told him that the children of PW1 fought them. While scolding his daughters for returning late, the deceased came with his two sons and two daughters, and PW1 to ask if he was present when his children fought with those of the deceased. At this point, Marcellinus Orji pushed him down from his seat. He fell. While struggling to get up, a struggle ensued. Light Orji who was armed with a cutlass struck the appellant, but missed. He mistakenly struck the deceased, (his father). It was his testimony that the deceased started shouting that Light had killed him and the alarm attracted people who came to their rescue. He denied killing the deceased. His young daughter who testified as DW2 corroborated his testimony. The learned trial judge believed the evidence led by the prosecution and disbelieved the evidence led by the appellant. The appellant was sentenced to death. The Court of Appeal affirmed the sentence.
The charge against the appellant reads:
STATEMENT OF OFFENCE
MURDER, contrary to section 319 (1) of the Criminal Code Cap 30,vol.ii Laws of Eastern Nigeria 1963, applicable in Imo State of Nigeria
PARTICULARS OF OFFENCE
ELUJI KINGSLEY EZE on the 7th day of March, 2005 at Umuobi Assa Ohaji in the Oguta Judicial Division murder one Silas Orji.
The sole issue for determination reads:
- Whether the prosecution proved the guilt of the appellant beyond reasonable doubt
Learned counsel for the appellant observed that the case presented by the prosecution was riddled with material contradictions and it is unsafe to convict on such evidence. He observed that PW1 stated that she was in their backyard cooking their evening meal with her daughter when the appellant came to their house with a matchet, stating that the appellant gave matchet cut to herself and her daughter outside the house but her daughter, PW2 contradicted her when she said the incident took place in the backyard. He further observed that there were contradictions when PW2 said that the accused gave the matchet cut to her father (deceased) not inside their house hut in front of their house.
He observed that PW1 testified that the appellant gave her husband cuts on his left hand and the left arm nearly fell off, on the left and right sides of his stomach while in the post mortem report, the medical doctor concluded that the deceased had two cuts, contending that this is not consistent with “cuts” on his left hand and on the left and right sides of his stomach.”
Further highlighting material contradictions learned counsel observed that PW1 testified that the appellant did not leave their house after giving matchet cuts to her and her daughter, that he was still in their compound waiting for her husband, and that when he heard his voice he ran after him and killed him in their compound, but PW2 testified that after inflicting matchet cuts on her and her mother the appellant was going when he observed that her father was coming back and to him. He observed that PW1 testified that her lantern was on when the accused came to their house but PW2 testified that the light was not on. He submitted that the contradictions show that PW1 and PW2 were lying and they did not witness the incident. Reliance was placed on Onubogu V. State (1975) 9NSCC p.358. Asuquo Williams V. State a (1974-1975) 9NSCCp.398.On evaluation of evidence he submitted that the courts below did not evaluate the evidence on record in finding the appellant guilty. Reliance was placed on Ajaghe V. Idowu (2011) 17 I’TWLR (Pt. 1276,) p.422.
In conclusion he urged the court to acquit and discharge the appellant since the case was not proved beyond reasonable doubt.
Learned counsel for the respondent observed that the evidence of PW 1
and PW2 were unchallenged and uncontroverted, contending that the
appellant murdered the deceased.
Learned counsel submitted that there were no material contradictions in
the evidence of PW1, PW2 and the Autopsy Report, exhibit C, and that the
alleged contradictions highlighted by learned counsel for the appellant
in the evidence of PW1, PW2 and exhibit C are minor variations and
discrepancies. Reliance was placed on Gabriel V. State (1989) 5NWLR
(Pt.122) p. 460.
On evaluation of evidence he submitted that both the trial court and the Court of Appeal carefully evaluated the evidence before it, further submitting that the Court of Appeal was right to affirm the findings of the learned trial judge which have not been shown to be perverse. He relied on Durugo V. State (1992) 7 NWLR (Pt. 255) p.525.
Concluding he observed that the prosecution has successfully and satisfactorily discharged the evidential burden placed before it. He urged the court to affirm the judgment of the Court of Appeal.
2 Section 316 of the Criminal Code defines the offence of murder, while section 319 of the Criminal Code states the punishment for murder. It is very much in order to charge for the offence of murder under any of the sections.
3 For the prosecution to succeed in a charge of murder under section 319 of the Criminal Code, applicable in Imo State of Nigeria the following must be proved beyond reasonable doubt.
a) That the deceased died;
b) That the death of the deceased was caused by the accused person.
c) That the act or omission of the accused person which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was a probable consequence.
4 Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. See Osuagwu V. State (2013) 5 NWLR (Pt. 1347) p.360.
5 Section 316 of the Criminal Code states when the killing of a person amounts to murder. Once the act of the appellant that resulted in the death of the deceased is one of the under-listed circumstances, it is murder, and the act of the appellant that caused the death of the deceased would be said to have been proved beyond reasonable doubt. The death of the deceased can only be caused by the accused person if:
a) The accused person intends to cause the death of the deceased or some other person; b) The accused person intends to do to the person killed or some other person some grievous harm; c) Death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such nature as to be likely to endanger human life; d) the accused person intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence; e) death is caused by administering any stupefying or overpowering things for either of the purposes last aforesaid; f) death is caused by willfully stopping the breath of any person for either of such purposes;
Is guilty of murder.
In (b) it is immaterial that the accused person did not intend to hurt the particular person who is killed.
In (c) it is immaterial that the accused person didnot intend to hurt any person.
In (d) (e) and (f it is immaterial that the accused person did not intend to cause death or did not know that death was likely to result.
It follows that the act of the appellant which caused the death of the deceased must be either (a), (b), (c), (d), (e) or (f).
Finally it must be proved beyond reasonable doubt that the act of the appellant that caused the death of the deceased was intentional and the appellant knew that death is probable consequence of his act. When the three elements or ingredients are proved beyond reasonable doubt the accused person is guilty of murder. See
Uguru V. State (2002) 4SC (Pt. ii) p.13
Salawu V. State (2014) 12 SC (Pt.134);
Nwachukwu V. State (2002) 7SC (Pt. i) p.124
Udor V. State (2014) 5-6SC (Pt. ii) p.177
Madu V. State (2012) 6 SC (Pt.i) p.80
Okoro V. State (2012) JSC (Pt. i) p.1
“That the deceased died.”
It is not in dispute that the deceased died on 7th March 2005. The appellant agreed with this fact when he gave evidence. He said: “I did not kill the deceased.”
Furthermore, the prosecution witnesses, PW1, PW2, PW3 and PW4 gave unchallenged evidence that the deceased died on 7 March 2005 after being struck with a cutlass by the appellant.
6 Finally, when documentary evidence supports oral evidence, oral evidence becomes more credible. Documentary evidence always serves as a hanger from which to assess oral testimony. See: Kindely & ors V. M. G. of Gongola State (1988) 2NWLR (Pt. 77) p.473.
Ornoreghe V. Lawani (1980) 3-4 SC P.117
Olowofoyeku V. AG Oyo State (1990) 2NWLR (Pt. l32)p. 369.
Exhibit C, the postmortem report concludes that the deceased died on 7th March 2005 from matchet cut which severed the blood vessels of the left forearm. Exhibit C thus makes oral testimony that the deceased died on 7th March 2005 more credible and I am satisfied that the deceased indeed died, and he died on 7th March 2005.
“That the death of the deceased was caused by the accused person.”
7 The case presented by the appellant is that if the trial court had taken into account the contradictions in this trial and had properly evaluated the evidence it would be clear that it was not the appellant who killed the deceased. A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, and not when there is just a minor discrepancy between them. Two pieces of evidence contradicts one another when they are themselves inconsistent.
A discrepancy may occur when a piece of evidence stops short of or contains a little more than, what the other evidence says or contains some minor differences in details, See Gabriel V. State (1989) 5 NWLR (Pt. 122) p.460
Idiok V. State (2006) ALL FWLR (Pt. 333) p.1788
On whether there were contradictions in the testimony of the prosecution witnesses, the Court of Appeal said:
“..............Having perused the evidence of the prosecution witnesses, it is my view that there are no contradictions at all in their testimonies. Contradiction in the evidence of the prosecution witnesses are fatal if they are material and they are material if they are likely to create doubt in the mind of the court. The PWI, PW2 and PW3 agree that there were matchet cuts on the deceased. In fact PW1 and PW2 actually saw when the appellant stabbed the deceased.
It would have been a different situation if PW1 and PW2 had said it was matchet cuts that the deceased sustained and it turns out that the deceased was shot with a gun or strangled, but that is not the case here. Also, issue as to whether PW1 saw lantern or not are immaterial to this case.
It is in the class of minor discrepancies. And in any case, the PW2 said since she was not in the room, she could not say if her mother saw lantern in the room or not.”
Where two or more witnesses, in this case PW1 and PW2 testify at a criminal trial and their testimony is contradictory or and irreconcible it would be wrong for the court to accept and believe the evidence of such witnesses. Where such is the case the trial judge must reconcile such testimonies before deciding to convict the accused.
Now, were their contradictions in the evidence of PW1 and PW2?
Was there the need for the trial judge to reconcile the testimonies of PW1 and PW2?
Learned counsel for the appellant made heavy weather on the issue of contradictions. He highlighted extracts from the testimony of PW1 and PW2 he understood to amount to contradictions. I reproduce some of them.
Postmortem Report concluded that there were two cuts on the deceased while PW1 and PW3 said there were three cuts.
PW1 said it was dark and the lantern was on, while PW2 said that the lantern was not on. PW1 said that the appellant gave matchet cut to herself and her daughter outside the house but in their compound, while PW2 said the incident took place in the backyard. Before a court can be satisfied that there are contradictions in the case of the prosecution, the contradictions must be material. Where two or more witnesses, witness an event, in this case murder and after some time they are told to say what they saw. If their testimony is exactly the same, there would be very strong suspicion that the witnesses had been tutored. There are bound to be minor discrepancies and this is allowed.
There would be contradictions in the testimony of two witnesses where there is a clear departure on material facts from the testimony of one witness by the other. Variations, discrepancies are expected. Where there are none it would be safe to conclude that the witnesses were tutored and that would not be reliable evidence.
Whether the lantern was on or off is immaterial as the identity of the appellant was never in doubt. The number of cuts the deceased received is also immaterial. There would have been a contradiction if the witnesses said that the deceased died from gunshot or from drowning or something different from matchet attack. Testifying that the murder occurred in the yard of the deceased is sufficient. To my mind there is no contradiction in the testimony of PW1 and PW2, rather there are discrepancies and this is allowed. I am satisfied that the deceased died as a result of matchet cuts inflicted on him by the appellant. PW1 and PW2 witnessed the incident and they are witnesses of truth. 8 The act of the appellant which caused the death of the deceased easily comes under section 316 (a) or (b) or (c).
“Was the act or omission of the accused person which caused the death of the deceased intentional with knowledge that death or grievous bodily harm would occur.”
Where the appellant strikes the deceased with such force that the deceased’s blood vessels were severed and exposed and blood gushed out of his abdomen, the reasonable conclusion is that the act of the appellant that caused the death of the deceased was intentional with the clear understanding that death or grievous bodily harm would occur. In this case grievous bodily harm occurred and this resulted in the death of the deceased. The ingredients of murder, (a) (b) and (c) alluded to earlier in this judgment are proved beyond reasonable doubt.
DEFENCE OF THE APPELLANT
In his defence, the appellant had told the learned trial judge that in the evening in question, he sent his two daughters to Mebere’s place to grind cassava. His daughters came home late. While he was scolding them the deceased and his two Sons and wife came to his house. As he was talking with the deceased’s sons, Marcellinus pushed him off the seat and he fell down. When he got up Marcellinus got hold of him. Light Orji, a son of the deceased had a matchet and their mother had a stick. He struggled with Light, Marcellinus and the deceased. Light extricated himself from him, raised the matchet he had on him to cut him (the appellant) but cut the deceased instead.
The learned trial judge rejected this line of defence as an afterthought.
Agreeing with the trial court, the Court of Appeal said:
“…….. I find it difficult to believe the story of the appellant ...........1 hold a strong view that this story by the appellant was cooked up peradventure the court may be persuaded to accept it as the true position. With all modesty, I think the court is wiser in such matters....................The evidence of the prosecution witnesses is water-tight and is cogent and credible enough to prove that the appellant gave the several matchet cuts on the deceased and also that the deceased died the same evening on their way to the hospital as a result of excessive bleeding from those wounds.”
I also find it hard to believe the defence of the appellant. He said his wife and children fought with the deceased and his children when they came to his house. He appeared comfortable calling only his daughter to give evidence. Also Mebere, who would have given vital evidence was not called. Failure to call Mebere to my mind is fatal to the appellant’s defence. The evidence of PW1 and PW2 cannot be faulted. Their evidence was corroborated by Medical Report that the deceased died from serious matchet cuts on his body which resulted in too much loss of blood before he could get medical attention. The findings of both courts below on the cause of death and the person responsible is affirmed by this court.
EVALUATION OF EVIDENCE
9 It is the duty of the trial judge to receive all relevant evidence. That is perception. The next duty is to weigh the evidence in the context of the surrounding circumstances of the case. That is evaluation. A finding of fact involves both perception and evaluation. See Gbileve V. Addingi (2014) 1-2 SC Pt. iii) p.1 Olonade V. Soweinino (2014) 5SC (Pt. ii) p. 97. The facts of this case clearly show that the case is based on eyewitness testimony, PW1 and PW2 on one side. The appellant, (DW1) and DW2 on the other side. After a diligent examination of the judgment of the trial court I am satisfied that, that court unquestionably evaluated the evidence and justify appraised the facts before arriving at its decision that the facts presented by the prosecution and affirmed by the Court of Appeal are true while the facts presented by the appellant are untrue.
In the end the appeal lacks merit. It is accordingly dismissed.
The judgment of the Court of Appeal is affirmed.
MARY UKAEGO PETER-ODILI, JSC.
I agree with the judgment just delivered by my learned brother, Olabode Rhodes- Vivour JSC and to register the support for the reasoning I shall make some remarks. This is an appeal against the judgment of the Court of Appeal, Owerri Division or court below or lower court delivered on the 20^th^March, 2013, Coram: John Inyang Okoro JCA (as he then was), Philomena Ekpe and Haruna S. Tsammani JJCA which affirmed the decision, conviction and sentence of the trial High Court, Imo State holden at Oguta per D.C. Ikpeama J.
The background facts are well captured in the lead judgment and there is no point repeating them save for when the need arises to uttilise and refer to any part of those facts.
The hearing date was 16/11/2017 and thereat, learned counsel for the appellant, L. M. Alozie Esq. adopted the appellant’s brief filed on 19/7/2013 and in it was distilled a single issue, viz:
Whether the prosecution proved the guilt of the appellant beyond reasonable doubt.
Mrs. K. A. Leweanya, Assistant Chief state counsel for the respondent, adopted its brief of argument filed on 27/08/2013 and in it were formulated three issues for determination which are as follows:
Whether the prosecution proved that the appellant committed the offence of murder as charged and found by the two courts below.
Whether there are material contradictions in the evidence of the prosecution witnesses.
Whether the learned Justices of the appeal court were right by declining to interfere with the findings of the trial court on the grounds that they properly evaluated evidence before it.
The sole issue of the appellant and Issue No I. of the respondent are sufficient for the use in the determination of this appeal and I shall use them as single issue.
SOLE ISSUE
Whether the prosecution proved the guilt of the appellant beyond reasonable doubt.
Learned counsel for the appellant submitted that the case presented by the prosecution is not only materially contradicted but the account cannot induce belief in the minds of the court. He referred to the account presented by PWI and that of PW2 stating that there were inconsistencies. He also pointed at the evidence of PW3 which learned counsel said was not to be believed and so a reasonable doubt had ensued and so the trial court’s decision was perverse and the court below ought not to have affirmed it. He cited
Almu V. State (2009) 10 NWLR (Pt. 1148) 31 at 46;
George V. FRN (2011) ALL FWLR 664 at 740;
Amobi V. Nzegwu (2005) 12 NWLR (Pt. 938) 120 at 138;
Onubogu V. The State (1974) ECSLR 403 at 411 etc.
That there were material witnesses and material evidence which the prosecution failed to place before the court and which the trial court never adverted to as these produced doubt reasonable enough to change the cause of events. He cited Awosile V. Sotumbo(1986) 3 NWLR (Pt. 29) 486 at 487; Section 167 of Evidence Act.
That there were gaps in the autopsy evidence leading to doubt as to the nature of injuries that caused the death of the deceased. He referred to:
Bozin V. State (1985) 2 NWLR 465 at 470-471;
Ajagbe V. Idowu (2011) 17 NWLR (Pt. 1276) 422 at 448;
Adelumola V. State (1988) 1 NWLR (Pt. 73) 683;
Abeke Onafowokan V. State (1987) 7 SCNJ 233 etc.
For the respondent it was contended by learned counsel that the prosecution carried out its duty of proving the charge against the accused person beyond reasonable doubt. That there is no dispute that one Silas Orji died on the 7th day of March, 2005 and that he had matchet cuts on that same day which were made by the appellant who intended the deceased to die from those injuries.
That the evidence of PW1 and PW2 are those of an eye witnesses. He referred to Garba V. State (2000) 6 NWLR (Pt.661);
DPP V. Smith (1960) ALL ER 161;
Akinkumi V. The State (1987) 3 SC 152;
Hyam V. DPP (1974) 2 ALL ER 43.
Learned counsel for the respondent submitted that the evidence of PW1 and PW2 were unchallenged and uncontroverted and being credible it was clear the prosecution established the ingredients of the offence of murder against the appellant. He cited Ogoala V. The State(1991) 2 NWLR (Pt. 175) 509; Idiok V. State (2006) ALL FWLR (Pt. 333) 1788). That the contradictions the appellant made a lot about were not material and could not affect the case of the prosecution. He relied on Ogbu V. State (1992) 8 NWLR (Pt. 259) 255; Ahmed V. State (2002) FWLR (Pt. 90) 1365 at 1376.
Also contended for the respondent is that prosecution did not need to call all the nine witnesses listed as what they ought to do and did was to call enough witnesses that could help it establish its case beyond reasonable doubt. He cited
Haruna V. A. S. Federation (2012) 3 KLR (Pt. 309) 1322;
Jammal V. State (1999) 12 NWLR (Pt. 632) 582 at 579;
Akindipe V. State (2012) 6 KLR (Pt. 313) at 2051;
Gabriel V. State (1985) 4 NWLR (Pt. 122) 457.
Learned counsel for the respondent submitted that both the trial court and the Court of Appeal carefully evaluated the evidence before them and so it was easy to accept the prosecution witnesses in preference to the evidence of defence. He cited
Adi V. Queen14 WACA;
Adaje V. The State (1979) 6 — 9 SC 28;
Asariyu V. The State (1987) 4 NWLR (Pt. 67) 709;
EmmanuelBen V. The State (2006) 7 SCNJ 217;
Ogbogu V. Ukwuegbu (2003) 4 SCNJ 79.
That the Court of Appeal was right to accept and affirm the findings of the learned trial judge which have been shown not to be perverse. He referred to Durugo V. State (1992) 7 NWLR (Pt. 255) 525 at 535; Eholor V. Osayande (1992) 6 NWLR (Pt. 24) 524.
3A To answer whether or not the prosecution proved the charge against the accused person beyond reasonable doubt is to go into what the prosecution needs do in a charge of murder to secure a conviction. To get a conviction effected, the prosecution must prove the following:
a) That the deceased died;
b) That the death of the deceased was caused by the accused and
c) That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was a probable consequence.
I refer to Eyo V. State (2010) ALL FWLR 1928;
Omonga V. State (2006) ALL FWLR (Pt. 306) 930;
Ogba V. State (1992) 2 NWLR (Pt. 222) 164;
Ubini V. The State (2003) 18 NWLR (Pt. 821) 224.
The prosecution in carrying out this duty required of it by law in establishing the essential ingredients of the offence of murder, provided the testimonies of PW1, PW2, PW3 and PW4.
In the case of PW1, the wife of the deceased, she stated thus:
“My daughter Queen came out and asked the accused why the accused gave me a matchet cut all over, the accused gave a machet cut to my daughter on her left shoulder. My daughter was shouting and crying following the matchet cut on us. The cries attracted my husband who was coming back from visit to one of his brothers in Christ. My husband was asking why his wife and child were crying1 The accused heard the voice of my husband and ran towards him1 He gave my husband matchet cuts on the left hand and his left arm nearly fell off, on the left and right sides of eth stomach1 My husband fell down and blood was rushing out like water1 I started shouting that Eze meaning the accused had killed my husband and he ran away. People rushed to the scene and helped me to take my husband to the hospital but before we got there he died.”
10 The evidence of PW1 is an eye-witness account and so also the testimony of PW2, the daughter of PW1 and the deceased. She stated thus:
“The accused ran to my father and gave him matchet cut on his hand, the left and right side of his stomach. My father the deceased fell down and the accused ran away. People took my father to the hospital but he died on the way”
PW1 had further stated as follows:
“The accused came to our house with a matchet calling Florence, Florence. I asked the accused what the matter was as he was calling me with a loud voice. The accused said if he did not kill my husband today, he would kill me. I was pleading with the accused not to kill us but he gave me matchet cuts.....”
The eye-witnesses account of PW1 and PW2 was graphic and the appellant did nothing much to dent the strength of the evidence and so the trial court had no difficulty in finding not only that the deceased died but that he died as a result of the injuries inflicted on him by the appellant who intended his death by the act of the matchet cuts. Those eye-witness reports were further buttressed by the evidence of PW3, Jonathan Nnawuihe, the Medical Doctor who tendered the report as Exhibit C. The PW4, the Investigating Police Officer narrated his conduct of the investigation which evidence was not impugned.
7A The appellant had sought to raise contradictions as between the evidence of the prosecution witnesses as to whether the matchet cuts were three or two. Such discrepancies are minor variations that could easily occur in the narrations by different persons in a given event that does not go into the root of the matter. The important thing is that the deceased died from matchet cuts which the medical doctor stated to be two and if the eye-witness, PW2 saw three or more cuts that is understandable and would not diminish the fact of matchet cuts from which injuries caused the death of the victim. 11 This position is buttressed by the fact that medical evidence though desirable, the absence of it would not forestall the proof of death caused by injuries as stated by either eye-witnesses which is direct evidence or inferred from circumstances surrounding the transaction. See Ogbu V. State (1992) 8 NWLR (Pt. 259) 255;
Ogoala V. The State (1991) 2 NWLR (Pt. 175) 509;
Idiok V. State (2006) ALL FWLR (Pt. 333) 1788);
Ehot V. State (1993) 4 NWLR (Pt. 290) 663.
Also need be said is that the hue and cry by appellant n the matchet not having been retrieved and tendered goes to no issue as this court has severally held in keeping with settled law that the failure to produce the murder weapon during trial is inconsequential. See Garba V. State (2000) 6 NWLR (Pt. 661).
The appellant had decried the failure to produce the said Mebere, whose house the incident took place and had asserted that the absence of that witness is fatal to the case of the prosecution. That assertion is against the run of what the prosecution is expected to do in proof of a criminal case such as the present murder trial. 12 This is so because the prosecution is not needed to provide a list of witnesses or a specified number to be taken seriously, rather all the prosecution is duty bound to do is proffer credible witnesses or even one witness whose evidence rock solid, credible and cogent such that the proof of the essential elements of the offence such as murder as we are tackling herein and the court would go on to make a finding of guilt and proceed to conviction and sentence. This is particularly so where the evidence proffered by the defence as DW1 and DW2 is so watery that it does nothing to shake the weight of evidence placed on the table by the prosecution. 13 This is an instance where the concurrent findings of fact of the two courts below are to be left undisturbed and not to be interfered with as there is no miscarriage of justice. See Emmanuel Ben V. The State (2006) 7 SCNJ 217;
Ogbogu V. Ukwuegbu (2003) 4 SCNJ 79;
Durugo V. State (1992) 7 NWLR (Pt. 255) 525 at 535;
Eholor V. Osayande (1992) 6 NWLR (Pt. 24) 524.
From the foregoing and the better reasoned lead judgment, I find no merit in this appeal and I dismiss it.
I abide by the consequential orders made.
AMIRU SANUSI, JSC.
The present appeal is from the Court of Appeal, Owerri division (lower court) delivered on 20-3- 2013 which affirmed the decision of Imo State High Court [the trial court] sitting at Oguta, which convicted the appellant of the offence of murder. The appellants appeal to the lower court was adjudged unmeritorious and dismissed, hence his appeal to this court as an indication of his dissatisfaction with the judgment of the lower court, now appealed against.
His lordship Hon Justice Rhodes-Vivour JSC, my learned brother, has done justice to the appeal in view of his articulate lead judgment in which he ably dealt with all the salient issues raised when the appeal was argued before us by learned counsel to the parties. I am at one with his reasoning and the conclusion he arrived at dismissing the appeal for being devoid of merit and thereby affirming the decision of the lower court.
Since the facts of the case and submissions of learned counsel for the parties in the appeal have been adequately captured in the lead judgment, it will be superfluous to repeat them here. Suffice to say however, that I would chip in few comments on some issues or complaints by the learned counsel of the appellant on the findings of the lower court vis a vis, the evidence adduced by the prosecution at the trial court (now respondent) in proof of its case thereat.
12A It was part of the grouse of the learned counsel for the appellant, that the prosecution failed to call material witnesses and material evidence thereby creating doubts in the mind of the lower court. To my mind and indeed the trite law is, that it is not necessary for the prosecution in order to discharge the onus of proof lying upon it, to call every available piece of evidence or witness. It is enough if it calls or tenders evidence which in its judgment, is sufficient to discharge the onus of proof, the law places upon it. What is relevant is always the credibility of a witness and not the number or host of witness called in proof of a case. The evidence of a single witness if believed by the court, can establish a criminal case even in a murder charge. See Effiong V. State (1998)8 NWLR (Pt. 562)362.
In this instant case, it is noted by me, that the prosecution had called eye witnesses who gave full and unpolluted account of all that had happened which they witnessed firsthand, such as PW1 the widow of the deceased, as well as PW2 another eye witness. Their testimonies went a long way in establishing the ingredients of the offence of murder on which the appellant was charged, tried, convicted and sentenced by the trial court which said latter1s decision was later affirmed by the lower court. It needs to be added, that the pieces of evidence given by the prosecution witnesses mentioned supra, were not contradicted or controverted materially as would cast some doubts in the mind of the trial court to warrant same being disbelieved or rejected.
On the whole, with these few remarks, I must say, that I fully and entirely agree with the reasoning of my lord, Rhodes-Vivour,JSC in his lead judgment wherein, he concluded that this appeal is unmeritorious and must be dismissed. I accordingly also dismiss the appeal for the same reason of want of merit, as I have no justifiable reason to depart from same. Appeal dismissed.
CLARA BATA OGUNBIYI, JSC.
I read in draft the lead judgment of my learned brother, Rhodes-Vivour, JSC. I agree that the appeal lacks merit and should be dismissed.
The two lower courts are concurrent on their decisions and the appellant has failed to show any reason why this court should interfere with the sound reasoning of the lower court in affirming that by the trial court.
The favour sought by the appellant is not a matter of course but that
which must be substantiated and legally sustained. The appellant has not
exhibited and furnished these requirements.
In terms of the lead judgment which I also adopt as mine, I hereby
dismiss this appeal as lacking in dire merit.
SIDI DAUDA BAGE. JSC.
I have had the benefit of reading in draft the lead Judgment of my learned brother Olabode Rhodes- Vivour, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. The appeal lacks merit, and it is accordingly dismissed by me.