Daniel Sugh V. The State (1988) LLJR-SC

Daniel Sugh V. The State (1988)

LawGlobal-Hub Lead Judgment Report

B. WALI, J.S.C.

The appellant was charged in the trial court with the following offence -“That you Daniel Iyorvershima Sugh, on or about the 17th day of October, 1984 along Makurdi-Gboko Road in Makurdi town within the Benue State Judicial Division did commit Culpable Homicide punishable with death in that you caused the death of one Robert William Carr by doing an act to wit: you stabbed the said Robert William Carr with a matchet on the left lateral side of his neck with the knowledge that his death would be the probable consequence of your act and you thereby committed an offence punishable under Section 221 of the Penal Code.”

The 2nd Accused, Michael Ba’aki who was charged with abetting the commission of the offence the appellant was charged with, was acquitted and discharged by the trial court for want of evidence.

The pathetic facts of the incident culminating in the cold and unprovoked murder of the deceased are narrated by the prosecution as follows:-

The appellant at the time of the incident was an engineer serving under Benue State Water Corporation, Makurdi. He befriended a lady by name Lourdes Paugillinam Orig, a Phillipino citizen, who was a teacher at Tilley Gyado College, Makurdi. She was P.W.3 at the trial. P.W.3 was also befriended by Robert William Carr, the expatriate General Manager of Gyado Fruit Co. (Nig.) Ltd., Makurdi, now deceased. Both the appellant and the deceased are married but none of them was living with his wife at the time of the incident. P.W.3 was co-habiting with the appellant in Makurdi. She is also married but left her husband in the Phillipines while coming to Nigeria.

On 7th October 1984 the appellant, in company of P.W.3 went to the deceased’s house in an attempt to resolve the issue as to who between the two of them, P.W.3 would exclusively follow. Neither the appellant nor the deceased was prepared to compromise. Then on 17th October, 1984, P.W.3 went to visit the deceased in his office. The deceased invited her to his house.

The deceased and P.W.3 joined the company’s bus No.BN 6937 NA being driven at the time by P.W.4. With them in the Bus were P.W.1 and P.W.5. They were forced to stop by the appellant who was then driving in his Volvo car No.BN 5 E. No sooner had they stopped the appellant emerged from the Volvo car carrying a cutlass and attacked the deceased on the neck below the jaw on the left side. The appellant then dragged P.W.3 out of the bus, put her in his car and drove away. The deceased was rushed to the General Hospital, Makurdi, where he was certified dead.

The prosecution called fourteen witnesses. Witnesses 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 13 and 14 were led in evidence by the prosecution, while witnesses 11 and 12 were tendered for cross-examination by the defence. The appellant testified in his own defence and called one witness. Learned counsel for both the appellant and the prosecution filed written addresses, which they orally elaborated upon. The learned trial Judge, after a thorough examination of the evidence adduced, discharged the 2nd accused for want of evidence.

As regards the 1st accused, now the appellant, he made the following findings:

1. “The charge against the 1st accused is clear enough and does not require any argument. It follows therefore that the argument of the learned counsel for the accused persons on the question of amendment of the charge is totally irrelevant.”

xxx xxx xxx

2. “I have considered very carefully the arguments advanced before me in favour of the 1st accused and also for the prosecution, and I find as a fact that it was the 1st accused who cut the deceased with a cutlass on his neck and caused his death. I believe the evidence of P.W.1 and P.W.4, P.W.5, who were eye witnesses of the event. I am unable to see any material contradictions in their evidence. P.W.1 and P.W.4 testified that the cut was done while the deceased was still in the bus (which I believe) while P.W.5 said he was cut outside the bus. These witnesses said somebody drove the 1st accused to the spot but I find as a fact that he drove himself as he also testified. Even though P.Ws. 4 and 5 ran away when the 1st accused came out with a cutlass and they tried to stop him and he resisted them, they did not go so far away that they could not see what was happening. These minor discrepancies in the case for the prosecution did not in any way discredit the case for the State.”

xxx xxx xxx

3. “I do not believe the evidence of the 1st accused that it was while he was trying to drag out P. W.3 and the deceased was also dragging her that P.W.5 mistakenly cut the deceased with a cutlass. If that story were true the 1st accused would certainly have said so in his statement to the police which was his first opportunity to explain what happened. He simply reserved his statement until he had seen his Lawyer. I find as a fact that he was the only one with a cutlass during the incident. If P.W.5 had a cutlass he would have used it to stop the 1st accused from coming near the deceased to attack him. The evidence is that P.W.5 used only a baton and ran away when the 1st accused tried to cut him with the cutlass.”

xx x xxx

4. “As to whether or not the cutlass Exhibit 7 was the instrument used in committing the offence I believe the evidence of P.W.10 that the 1st accused gave him that cutlass to keep in the afternoon of the incident. While there is no evidence of the exact time the cutlass was given to the witness, he said that it was after he closed from the office at 3 p.m. From the circumstantial evidence I find as a fact that it was after the incidence that the 1st accused gave the cutlass to P.W.10 to keep. I looked at the witness closely in the witness box and I am of the view that in spite of the fact that he too was arrested in connection with the case, he told me the truth in court and there was no cause why he should tell lies against the 1st accused who was his superior officer in the Benue State Water Corporation.

In any event, whether the Exhibit 7 was the instrument used or not there is no doubt in my mind that the accused used a cutlass to deal a deadly blow on the deceased and he died shortly after. I reject the evidence of D.W.1 that a man with a cutlass was standing near the deceased when he arrived at the scene. He impressed me as a man trying to help a friend out of an ugly situation. If anything, his evidence tended to support the case of the prosecution that the 1st accused committed the offence and was in a hurry to get away with P.W.3.

In summary, the prosecution has satisfied me beyond reasonable doubt that the 1st accused committed culpable homicide punishable with death by killing the deceased William Robert Carr and I find him guilty of the offence punishable under S.221(b) of the Penal Code and convict him accordingly.”

The appellant appealed against his conviction to the Court of Appeal, Jos Division. It dismissed the appeal for want of merit. The appellant has now appealed to this Court. Four grounds of appeal were filed and canvassed on his behalf. Both learned counsel for the appellant and the respondent filed and exchanged briefs of arguments.

In his written brief, counsel for the appellant formulated the following issues for determination:-

“(1) Where more than one accused persons are tried together on one charge or identical charges and the witnesses give evidence against them; whether the learned trial Judge can reject evidence of the said witnesses in respect of one accused and accept the Same in respect of the other accused person.

(2) Whether in a criminal trial the Court can reject the defence of the accused person on the ground that if the accused person had a good defence he would have made a statement to the Police to that effect and furthermore, whether Section 236(1)(c) of C.P.C. overrides Section 33(11) of the 1979 Constitution.

(3) In a criminal trial, whether it is for the trial Judge to pick and choose which prosecution witnesses to believe and which not to believe

(4) Whether it is right for the trial Judge to rely on Section 206 of the C.P.C. to convict on a defective charge which is not supported by evidence especially where the accused/appellant has been misled by the averment in the charge and has conducted his defence based on the averment in the defective charge.

(5) In evaluating the evidence of prosecution witnesses especially in a case of Culpable Homicide punishable with death, whether the trial Judge is right in law not to refer to evidence of the accused and the prosecution witnesses considered to be unfavourable to the prosecution’s case.

(6) Whether the trial Court was right to convict the appellant on contradictory evidence of witnesses instead of resolving the contradictions in favour of the accused person.”

On his part, respondent’s counsel formulated three issues in his brief. These three issues are covered by the six issues formulated by the appellant, and I therefore find it not necessary to reproduce them.

Issue No.1 deals with the findings of fact by the trial court on the evidence adduced. It covers grounds 2, 3 and 4 of the grounds of appeal. In his brief, learned counsel referred to the various portions of the evidence given by prosecution witnesses, particularly prosecution witnesses 1, 3, 4, 5 and 10 and submitted that if the learned trial Judge had considered and evaluated the evidence, he would have come to the following conclusions that-

1. The witnesses were inconsistent on the presence of the 2nd accused and the beetle car at the scene of the incident.
2. The witnesses were inconsistent as regards the time of the incident.
3. That Exhibit 7, the cutlass, could not have been used by the appellant to inflict the mortal injury on the deceased.

Having read the record myself I find the submission of the learned counsel untenable and misconceived. Both P.W.1, P.W.3, P.W.4 and P.W.5 who were eye witnesses to the incident gave implicating evidence against the appellant.

In his evidence, P.W.1 said;

“On our way going along Gboko Road we were put to a stop by a Volvo Car BN 5 E and instantly a man came out from the owner’s side with a long cutlass, attacked our bus, forced the door open and matcheted the late G.M. He put the white lady in our bus into his car and drove towards Makurdi. 1st accused was the man who came out of the Volvo and attacked the deceased.”

xxxx

“The 1st accused cut the deceased at the neck below the jaw on the left hand side. It was a long cutlass.”

P.W.3 said-

“We took the company van. I was sitting beside Mr. Carr. We had a driver, security guard who was sitting beside the driver. One or two other company workers sat behind us. I am not sure of the number. I was not feeling well that day and I started sleeping when the vehicle was in motion. Suddenly we were stopped. The van started swerving and I woke up. I saw 1st accused coming out of his car which was parked in front of the van. All I can remember is that he was asking me to go out of the car. Mallam jumped out of the car to meet him, and tried to stop 1st accused from coming near the van with his stick or baton. 1st accused came out alone. When Mallam was trying to stop him I saw 1st accused with a knife. It is Nigerian cutlass that is very common. Dan – 1st accused entered the bus where Mallam vacated with half of the body inside. He was still standing on the road. He was exchanging words which I cannot remember with the deceased.”

xxx x

“The next thing I noticed was blood on my legs and shoes. I noticed a cut on the deceased’s left side of the neck. I started shouting. Deceased opened the door and came down to allow me to get out. Then 1st accused took me away in his car back to Makurdi town in his blue Volvo car registered BN 5 E. I did not see the cutlass when 1st accused carried me away.”

P.W.4 while testifying stated thus –

“On our way going at about 4.05p.m. near Dr. Terwase’s sign board along Gboko – Makurdi Road, one Volvo car registered BN 5 E overtook from behind driving zig zag on the road, pushing our motor with the bush and forced us to a stop. The Volvo crossed our way and forced us to stop. When we stopped I saw a black man run out of the owner’s seat of the Volvo with a big cutlass. I decided to reverse and I saw a white beetle block us at the back. I do not know its registration number. 1st accused was the man who came out of the Volvo car with a cutlass. Then the man with the cutlass came nearer to us. He ran straight to where our G.M. was sitting. He forced the door of our motor open and cut our G.M. at the left neck, saying, “This is my wife” and forced the lady out of our vehicle. He went into his car and moved towards Makurdi.”

P.W.5, testifying on the point, said-

“On 17/10/84 I was guarding the gate and the Personnel Manager called me. I know him as George. He said that the driver should take me to the G.M.’s house on duty as I did not know the house. We entered the bus. The driver and I were in front, the G.M. and one white lady were in the middle and P.W.1 was at the back seat. We were heading towards Makurdi. When we reached block industry, one vehicle crossed our vehicle and Daniel (1st accused) came out of his car with a knife, passed the first door, went to the centre door, forced the door open and deceased came out and 1st accused cut him with a knife at the left neck. He dragged the woman out and put her in his vehicle.”

With the evidence above, it is my humble view that the learned trial Judge was justified in convicting the appellant as charged. The Court of Appeal was also justified when it said thus while dismissing the appeal-

“In the present appeal before us, it is clear that there is consensus of most of the facts and circumstances leading to the death of the deceased. The only controversy is whose hand inflicted the fatal injury on the deceased. It is that of the appellant as contended by the prosecution or that of P.W.5 as contended by the defence. Now P.W.1, P.W.4 and P.W.5 were eye witnesses of the attack by the appellant. P.W.3 saw the appellant approach their vehicle armed with a cutlass. The learned trial Judge at p. 186 found as follows:-

‘I find as a fact that it was the 1st accused (appellant) who cut the deceased with a cutlass on his neck and caused his death. I believe the evidence of P.W.1 and P.W.4, P.W.5 who were eye witnesses of the event. I am unable to see any material contradictions with their evidence. P.W.1 and P.W.4 testified that the cut was done while the deceased was still in the bus (which I believe) while P.W.5 said he was cut outside the bus. These witnesses said somebody drove 1st accused (appellant) to the spot but I find as a fact that he drove himself as he also testified. Even though P.W.4 and P.W.5 ran away when 1st accused (appellant) came out with a cutlass and they tried to stop him and he resisted they did not go so far away that they could not see what was happening.

These minor discrepancies in the case for the prosecution do not in any way discredit the case for the State.”

Learned counsel also vigorously urged the point that it was the P.W.5 rather than the appellant that “mistakenly cut the deceased with a cutlass.” The evidence that the learned trial Judge accepted as against that of the appellant on this point was that the 5th P.W. was carrying a stick on the fateful day, and not a cutlass. On this point, P.W.1 said –

“Bawa had a baton during the incident.”

On her part, P.W.3 testified that-

“Mallam jumped out of the car to meet him, and tried to stop 1st accused from coming near the van with his stick or baton.”

P.W.4 said-

“Bameyi was in the bus and was holding a stick. He too came down and tried to stop 1st accused who tried to cut him and he ran away also.”

While P.W.5, who gave his full name as Bameyi Bawa Mallam said under cross examination –

“On 17/10/84 I held a stick. I had the stick during the incident. I do not have a knife during the incident. J did not see any cutlass in the bus that day.”

(It is to be noted that P.W.1, P.W.3 and P.W.4 called 5th P.W. as “Bawa” “Mallam” and “Bameyi” respectively, which collectively are his full names.)

It was on this evidence that the learned trial Judge made his finding that he did “not believe the evidence of the 1st accused that it was while he was trying to drag out P.W.3 and the deceased was also dragging her that P.W.5 mistakenly cut the deceased with a cutlass”; which was subsequently affirmed on appeal, by the Court of Appeal, Jos Division.

It is trite that the assessment of credibility of a witness is a matter within the province of the trial court, as it is only that court that has the advantage of seeing, watching and observing the witness in the witness box. It has the liberty and privilege of believing him and accepting his evidence either as a whole or in part, in preference to the evidence adduced by the defence. And as Oputa, J.S.C., put it in Adelumola v. The State (1988) 1 N.W.L.R. (Part.73) 683 at 690 that

“That belief can only be questioned on appeal if it is obviously against the logical drift of the evidence considered as a whole or against the impact of the wave of probabilities disclosed by the

evidence.”

The evidence given by P.W.1, P.W.2, P.W.4 and P.W.5 who were eye wit, nesses to the incident, has not been successfully challenged by the appellant, as the undisputed facts are that he was seen at the scene of the incident with a cutlass which he used on the deceased to inflict the fatal injury on him. There is no evidence that P.W.5 was carrying any cutlass that day or that any cutlass was being carried in the bus or by any other person riding on the bus to suggest any inference being drawn against P.W.5, as is being suggested by the appellant in his evidence. In issue No.2, it was the contention of learned counsel for the appellant that the comment made by the trial court on the appellant’s failure to make a statement at the earliest opportunity to explain the happenings that resulted in the death of the deceased, is a violation of his fundamental right provided and protected by section 33(11) of the 1979 Constitution. He submitted that S.236(1) of the Criminal Procedure Code Law of Benue State is inconsistent with section 33(11) of the 1979 Constitution, therefore to that extent, null and void. He further submitted that the trial court failed to consider the defence put forward by the appellant. He relied on the case of Samson Aigbe And David Banji Ogundiran v. The State (1976) 9 & 10 S.C. 77 as his authority.

Section 33(11) of the 1979 Constitution provides that-

“No person who is tried for a criminal offence shall be compelled to give evidence at his trial;”

while section 236(1) of the Criminal Procedure Code states that-

“(1) an accused person shall be a competent witness on his own behalf in any inquiry or trial, whether he is accused solely or jointly with another person or persons, and his evidence may be used in proceedings against any person or persons tried jointly with him, and the following provisions shall have effect –

(a) the accused shall not be examined as a witness except at his own request.

(b) …..

(c) failure of the accused to give evidence shall not be made the subject of any comment by the prosecution, but the court may draw such inference as it thinks just;”

Both section 33(11) of the 1979 Constitution and section 236(1)(a) of the Criminal Procedure Code are provisions against compelling an accused person to give evidence in his trial. There is no conflict between the two. Subsection (c) of section 236(1) prohibits the prosecution, from making any comment on an accused person’s refusal to give evidence at his trial; this is meant to prevent the prosecution from polluting the mind of the Judge which may result in his failure to consider any possible defence that may be available to him in the given circumstance of the case. Section 33(11) does not prohibit the learned trial judge from drawing any unfavourable inference against the accused having regard to the evidence adduced in the case. The Court of Appeal therefore correctly stated the law that the appellant rightly exercised his right of silence under section 33(11) and 236(1)(a) of the 1979 Constitution and the Criminal Procedure Code Law respectively and that the trial Judge was equally right under section 236(1)(c) in making the observation and drawing the inference being complained of, particularly in the circumstance of this case where the appellant elected to give evidence. The prosecution is not bound to recall P.W.S to clear the imaginary contradiction alleged by appellant in his evidence-in-chief. If the appellant was serious in his allegation he would have applied to the court for the recall of P.W.5 to be further cross-examined on the point. Sub-sections (a) and (b) of section 236(1) of the Criminal Procedure Code are not, in my view contradictory to section 33(11) of the 1979 Constitution, but complimentary to it. The learned trial Judge seised of the facts of the case. He carefully considered them and reached the conclusion where he said –

“I have examined the facts carefully. The learned counsel for the 1st accused has not, raised any defence to reduce the gravity of the offence……..I agree with the learned State Counsel that none of the defences envisaged by sections 222(1), (2), (4) and (7) of the Penal Code is open to the 1st accused.”

All that the appellant tried to establish throughout the trial was that although he was physically there at the scene of the incident, he did not commit the offence. This was rejected by the learned trial Judge. There was nothing in the evidence to suggest any quarrel or provocative acts by the deceased to reduce the gravity of the offence the appellant committed. The evidence did not show that P.W.3 was a wife to the appellant. Both P.W.3 and the appellant admitted being married to their respective spouses at the time of the incident. The fact that the appellant and the P.W.3 were having adulterous cohabitation at the time of the incident, is not an evidence of marriage. It was out of blind jealousy that the appellant, unprovoked, followed and intercepted the deceased and murdered him in cold blood.

The argument on this issue is totally devoid of merit and it woefully fails.

Issues Nos. 3 and 6 were taken and argued together. In his submission learned counsel argued “that the learned trial Judge was wrong when he picked and chose evidence of prosecution witnesses which he believed and which he did not believe, instead of considering the totality of the evidence adduced before him.” He referred to various portions of the evidence in the record and cited the case of Boy Muka & 2 Ors v. The State (1976) 9 & 10 S.C. 305 in support of his submissions.

This was the subject of complaint in ground 2 in the Court of Appeal.

In his argument in support of the issue, learned Counsel for the appellant tried to make heavy weather on what he called failure by the prosecution to call P.W.11 and whom he referred to as an independent witness. The prosecution did not fail to call P.W.11 but tendered him for cross-examination by the defence. What he said under cross-examination did not, in any way contradict the evidence of P.W.1, P.W.3, P.WA and P.W.5. P.W.4 and P.W.5 admitted running into the bush when the appellant attacked them, but added that they did not go far and that they saw all what the appellant did to the deceased. The complaint by the appellant that the learned trial judge picked and chose who to believe among the prosecution’s witnesses is not correct. He carefully considered the evidence of the prosecution and arrived at the conclusion that there were no material and substantial contradictions in their evidence. The contradictions which learned counsel has all along been harping on relate to the time the alleged offence was committed, the cutlass used in committing it and whether or not the volkswagen beetle car allegedly driven to the scene by the 2nd accused was used in blocking the Bus from the hinder. All the evidence by prosecution eye witnesses identified the appellant with his volvo car at the scene. This was confirmed by the appellant in his evidence. They all gave evidence that the appellant emerged from his volvo car with a cutlass with which he cut the deceased on a mortal part of his body and that the episode happened between the hours of 3 – 4.30 p.m. The slight difference in the time mentioned by the prosecution witnesses, or whether Exhibit 7 is the actual cutlass used by the appellant, are not substantial having regard to the evidence. The appellant was seen with a cutlass at the scene of the incident about the time the offence was committed. He was the only person with a cutlass and had the opportunity of committing the offence. The learned trial Judge was justified in his conclusion that “these minor discrepancies in the case for the prosecution do not in any way discredit the case for the State.” See Enahoro v. The Queen (1965) N.M.L.R. 165. It is immaterial whether it was Exhibit 7 the appellant used in inflicting the injury.

Before a trial court can convict in a criminal trial, it does not have to call a whole host of witnesses upon the same point. It can even convict on the evidence of one witness in a case where the witness is not an accomplice, if the court is satisfied on cogent reasons, with that evidence in preference to that of the defence. See Joshua Alonge v. Inspector-General Of Police (1959) 4 F.S.C. 203; R. v. George Kure 7 W.A.C.A. 175; Anthony Igbo v. The State (1975) 9-11 S.c. 129 and N.M. Ali & Anor. v. The State (1988) 1 S.C.N. R 17 at 27

Issue No.4 is attacking the charge on the basis that while it alleges that the appellant stabbed the deceased with a matchet, the evidence given by the prosecution’s witnesses was that the injury found on the deceased was a cut. He submitted that the appellant was misled in his defence, hence section 206 of the Criminal Procedure Code Law could not cure the alleged defect. Now section 206 of the Criminal Procedure Code Law provides as follows –

“206. No error in stating either the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice.”

The charge stated the offence and its particulars thus –

“That you, Daniel Iyorvershima Sugh on or about the 17th day of October, 1984….. did commit culpable Homicide punishable with death in that you caused the death of one Robert William Carr by doing an act to wit: you stabbed the said Robert William Carr with a matchet on the left lateral side of his neck with the knowledge that his death would be the probable consequence of your act….”

The appellant who was throughout the trial in the High Court represented by a counsel, pleaded not guilty to the charge. He gave evidence on oath in his own defence, and it showed that he understood the accusation against him that he caused the death of the deceased by matchetting him. The evidence adduced by the prosecution proved that the matchet cut or stab was caused by the appellant and the wound inflicted on the part of the deceased’s body was such that his death would be “probable” and not “likely” consequence of that act. The mere fact that “stab” was used to describe the injury did not, in my view, mislead the appellant in his defence. There is infact no material defect in the charge. I agree with the learned trial judge when he said –

“To my mind the words stab and cut are similar words, and while I agree the more proper word that should have been used in the charge is cut and not stab, I cannot see how the accused has been prejudiced in his trial by this minor error…..”

x x x x

“The charge against the 1st accused is clear enough and does not require any amendment.”

This complaint is also misconceived and must be rejected.

Issue No.5 complained against the findings of fact by the learned trial judge on the evidence adduced. It is covered by Issue No. 1 which I have already dealt with (supra).

I have myself gone through the record of appeal and I am satisfied that both the trial court and the Court of Appeal correctly considered and evaluated the evidence, and the complaint is therefore without merit. In my view the lower court (per Jacks, J.C.A.) correctly stated the law when it said

“The general rule is that an appellate court would not normally interfere with the findings of fact by a trial court unless those findings are contrary to well established exceptions………..

Thus issues of facts, evaluation of evidence, credibility of witnesses are within the exclusive competence and domain of the trial court. See Chief Frank Eba v. Chief Warri Ogodo & Anor. (1984) 12 S.C. 139 at 176 and Omoregie v. Idugiemwanye Idugiemwanye (1985) 2 N.W.L.R. 41”.

Where the entire appeal revolved around issues of fact and there was nothing on the record to show that its findings were erroneous, the Court of Appeal would dismiss it – Lucy Onowon And Anor. v. J.J.I. Iserhien In Re Lucy Onowon – Appellant (1976) 9-10 S.C. 95.

There is no merit in any of the grounds of appeal canvassed by the appellant’s counsel. In consequence the appeal fails in toto and it is dismissed. The conviction and sentence passed on the appellant by the High Court Makurdi and affirmed by the Court of Appeal, Jos Division, are hereby confirmed.

SC.164/1987