Effia V The State (1999)
LAWGLOBAL HUB Lead Judgment Report
EJIWUNMI, J.S.C
Upon an information filed by the State at the Ogoja High Court Division of the High Court of Cross-River State, the appellant was charged with the offence of murder. His plea was taken, and the appellant pleaded not guilty. In support of its case, the State called three witnesses. At the end of the case for the prosecution, the appellant gave evidence on oath on his own behalf. The learned trial Judge, following the addresses of counsel for the appellant and the State, delivered a reserved judgment. For the reasons given in that judgment, the appellant was found guilty of the offence of murder. He was thereafter sentenced to death by hanging.
The appellant then filed an appeal to the Court of Appeal against the judgment and orders of the trial court. His appeal was dismissed. The appellant has now appealed to this court against the judgment of the court below. Upon the ground of appeal filed, the only issue identified in the appellant’s brief of argument for the determination of this appeal is whether in view of the nature and quality of evidence adduced by the prosecution, the Court of Appeal did not err by holding that the trial judge rightly convicted and sentenced the appellant to death for murder.
It must be noted that no respondent’s Brief of Argument was filed on behalf of the State. There is evidence, however, that appellant’s Brief of Argument was delivered to the Ministry of Justice of the former Cross-River State at Uyo, via the Services of DHL World Wide Express, at the instance of the learned counsel for the appellant. Mr. Olisa Agbakoba. SAN. When the appeal was called for hearing on the 11/3/99 the appellant’s counsel was absent The respondent was also not represented by counsel. In view of the rules of this court,it was decided to hear the appeal on the appellant’s brief.
At the trial, the prosecution called three witnesses. The first two witnesses who are brothers, were PW 1. Oregi Effia, and PW2, Mbam Effia. PW 1 said that on the 3rd of March. 1983, he was with PW2 and Ugow Effia, the deceased. They were all gathered with some other people at the graveside of Obeji Effia, the mother of PW2. With they were so fathered, a young boy came to the place with a bottle of wine and asked that the deceased should pour wine over the grave of the deceased’s mother. Just as the bottle of wine was brought, the appellant started to struggle with the deceased over the bottle of wine. In the course of the struggle, the appellant picked a stone with which he hit the deceased on the mouth and blood gushed out of the deceased’s mouth. The deceased then hit the appellant on the forehead with an empty bottle of Mirinda. At that stage, the people who were there separated them. After they were separated, everyone including the witness and the appellant returned to their seats. Apparently, they continued with their drinking. But he noticed hat the deceased resumed his seat by the graveside. Shortly, after they had all resumed their seats as aforesaid, he heard the deceased shouting, “Jones has murdered me”. “Jonas has murdered me”. And as the deceased was so shouting, he Jonas the appellant, took to his heels with a pen knife which had blood on it. He did not know when the appellant left them where they were all drinking. The witness with others, then rushed to where the deceased was, a distance of about 60 yards from where they were. He claimed that when he came to the deceased, he saw a stab wound on his neck and from where he was already dead. He then sent PW2, Mbam Effia to go and report the incident to the police. He sat with others beside the corpse, kept a vigil, until the police arrived there the next day with the appellant.
Mbam Effia, who gave evidence as PW2, said that on the 3rd of March, 1983, he was busy entertaining his visitors. This was in connection with the burial ceremonies of his late mother. It was while he was with his visitors that he heard the sound of people panicking and running. He then came and was told that his brother had been killed. He ran to the scene, where he saw that his brother, (the deceased) had been stabled on the left side of the neck. He was bleeding profusely from the wound. He claimed that he talked to the deceased who told him that Jonas had stabbed him. The 3rd and last witness for the prosecution was Sgt. Kieran Uwum, attached at the time to the Divisional Crime Branch, Ogoja. He gave evidence of the investigation he conducted after the case was referred to him. He subsequently charged and cautioned the appellant in the English language. The appellant made a statement in the English language, which the witness recorded. The statement was read over to the appellant and he agreed that it was correctly recorded. He therefore signed it. The statement was tendered at the trial court and admitted as Exhibit 1. The penknife which had blood stains on it, and allegedly used in stabbing the deceased, was tendered as Exhibit 2. The 3rd PW, further said that Post-Mortem examination was carried out on the body of the deceased by Dr. O.A.K. Sani. The Doctor who was at the time serving his Youth Corps programme there had since left the state. As his whereabouts were not known, he was unable to give evidence at the trial.
The appellant who gave evidence at the trial admitted that he had a fight which resulted in the death of the deceased. But his contention remained that he had one continuous fight with the deceased. He admitted also that he went to the scene to honour the deceased being his in-law. He also admitted that he brought a bottle of Champion beer to the ceremony for libation to be poured on the grave. He claimed that the deceased refused to pour the drink over the grave. He then went to the deceased to collect his bottle of drink. But the deceased refused to return it to him. The appellant said that the deceased then hit him with a bottle containing native gin which the deceased had with him. That annoyed the appellant, and he then grappled with the deceased who threw him on the ground. Appellant then claimed that it was while he was in that position that the deceased brought out a penknife from his pocket with which he stabled the appellant. According to the appellant, the penknife got stuck on his face. He then removed it and used it on the deceased. After he had stabled the deceased, the deceased released his grip on him, and the appellant then ran away.
The argument proffered for the appellant in the appellant’s brief is directed mainly at the evaluation of the evidence led at the trial. It is the contention of learned counsel for the appellant that the learned trial Judge was wrong to have relied on the evidence of PW1 and PW2, who are not only brothers of the deceased, but are also related to the deceased. While he conceded in his brief that the learned trial Judge cautioned himself on relying upon the evidence of witnesses whose evidence may be tainted, yet he urged this court to hold that the trial court should not have accepted their evidence. Argument similar to the above was canvassed before the court below and it was rejected. In the course of judgment in that court. Akanbi, P.C.A. dismissed the argument thus at page 83 of the records, and I quote:-
“The simple answer to this argument or submission is that it is beyond the duty of the court to substitute its view for that of the trial Judge who saw and heard the witnesses. It is settled law that the ascription of probative value to the evidence of witnesses is pre-eminently that of the trial court and unless his finding is not backed up by evidence, or is perverse, it ought not be reversed.”
That statement of the learned President of the Court of Appeal is undoubtedly good law. See Ebba v. Ogodo (1984) 4 SC 84 at pages 90-91; (1984) 1 SCNLR 372; Onwugbufor v. Okoye (1996) 1 NWLR (Pt. 424) 252 at 289. I have also had the benefit of reading the record where the learned trial Judge dealt with that complaint made for the appellant. It is my respectful view that the learned trial Judge adverted adequately to the legal position with regard to such witnesses and duly warned himself of the danger of placing reliance upon the evidence of PW1 and PW2. Having done all that he needed to do before accepting their evidence, I do not consider that there is merit in the complaint of the appellant in this regard. It is also argued for the appellant that if the learned trial Judge had properly evaluated the evidence of these two witnesses with the evidence of the appellant, he would have held that the fight which led to the death of the deceased was one continuous fight. By that contention made for the appellant, learned counsel also argued that the defence of provocation would have been available to the appellant.
This is based on the principle that the onus of proving absence of provocation rests on the prosecution throughout. See R v. Mcpherson (1957) 41 CR APRR 213.
On this contention of the learned counsel for the appellant. I need to refer to the portion of the judgment of the trial court where the learned trial Judge considered the questioned. At page 32 of the record, the learned trial Judge, said:-
“From the evidence before me, I do not believe that the fight was a continuous one. I accept PW1’s evidence that the fight stopped, and the celebrants dispersed. Therefore, the accused still exasperated by deceased’s action in not using his wine to pour libation attacked the deceased the second time and stabbed the deceased to death. In fact, it would be strange having regard to human conduct, if sympathizers were to stand by and watch a fight at a graveside without intervening to stop the fight. Hence, I am convinced that the fight was stopped. I therefore find as a fact that after the accused and deceased were first separated, the accused who was controlled by his anger launched another and fresh attack on the deceased and in a most barbaric manner stabbed the deceased on the neck, one of the most vital organs of a human body.”
It must be borne in mid that the contention being made for the appellant is not that the appellant did not fight with the deceased, but that it was a continuous fight. This contention made for the appellant was also argued before the court below and it was rejected. From the evidence and the clear analysis of the sequence of events by the learned trial Judge of what happened before the deceased died, I must reject the argument advanced for the appellant that the learned trial judge was wrong to have held that the fight was not a continuous fight. In my respectful view the defence of provocation cannot also be available to the appellant in view of the clear finding of the learned trial Judge that it was the appellant who attacked the deceased a second time when the deceased was killed.
Learned counsel for the appellant in the brief of argument has also complained that the court below should not have affirmed the judgment of the trial court because of the contradiction and inconsistencies in the evidence of the witnesses for the prosecution. This contention now made to this court was also made to the court below which did not find merit in it. It is pertinent to state that it is settled law that for any conflict or contradiction in the evidence of prosecution witnesses to be fatal to the case, the conflict or contradiction must be fundamental to the main issues in question before the court. See Onubogu & Anor. V. The State (1974) 1 All NLR (Pt. 11) 5; Nasamu v. The State (1968) NMLR 86; Enahoro v. Queen (1965) 1 All NLR 125; Ibe v. State (1992) 5 NWLR (Pt. 244) 642 at 649; Namsoh v. State (1993) 5 NWLR (Pt. 292) 129. In the instant case, the contradiction and inconsistencies harped upon by the learned counsel for the appellant are in respect of the evidence of PW1 & 2 on the one hand, and between PW 2 & PW 3. I have earlier on reviewed the evidence of PW1 and PW2 and cannot support the proof of the guilt of the appellant. The contradiction, between the evidence of PW 2 & PW 3 about whether it was the appellant who gave the knife, the murder weapon, to the police or it was PW 2 is in my view immaterial in the face of the evidence of the appellant himself who admitted that he gave the knife to the police. It is not every discrepancy or contradiction in the evidence of the prosecution witnesses that would lead to the rejection of such evidence. It must be shown that the contradiction and inconsistencies in their evidence are so material that grave doubts are cast of the prosecution.
I have anxiously considered the evidence of these witnesses and do not have any doubts as to their credibility. The common thread that ran through their evidence is that the appellant was the one, and no other, who with a penknife fatally wounded the deceased. .
For all the reasons give above, I am satisfied that the prosecution established the guilt of the appellant beyond reasonable doubt. The appeal is therefore dismissed by me and the judgment and orders of the court below are hereby upheld.
SC. 13/98