Felix Nwosu V. The State (1986)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C.

On the 19th June 1986, I allowed this appeal, quashed the conviction and sentence and substituted an order of not guilty, discharged and acquitted. I now give my reasons.

The appellant was charged on an information with the murder of one Johnson Francis, before the High Court of Ondo State and was convicted of the offence and sentenced to death. His appeal to the Court of Appeal was dismissed and his conviction and sentence were affirmed.

The conviction of the accused was based mainly on the evidence of two prosecution witnesses (P.W.2 and P.W.4). 2nd P.W. was the only alleged eye-witness. The accused made two statements to the police (Exhibits C and D). The first was said to be confessional and the second explanatory of the first. The two statements with his evidence in court were all ignored by the learned trial judge (Ogunleye J.) who held that they were conflicting and unreliable. He said he would ignore them for that reason. This is what he said:-

“I am therefore left with the evidence of p.w.2 in proof of accuser’s guilty intent. This witness stayed behind the perforated door of accused’s room but was able to see what was happening inside the room. The door was then ajar. P.W.2 testified, inter alia:-

“…The deceased and I slept on a bed. The accused used to sleep with us on the same bed owned by the accused…At the instance of the accused. I took my junior brother from accused’s bed and put him on our mat … After the prayers he made for the door, took exhibit “X” for identification (now Exh. “A”) and used it on the head of my junior brother – Johnson Francis…When the iron-rod fell on my brother he could not scream…That was the end of his life.” “As I clearly indicated earlier, I feel no difficulty in accepting this witness’s evidence. It is credible and uncontradicted and I believe and accept it. In the circumstance it cannot be said that the accused did not intend “to do the person killed … some grievous harm”.

It is therefore clear from the above passage of the judgment that the conviction was based principally on the evidence of the 2nd P.W. alone. The point was made before him that the 2nd P.W. was unreliable for he contradicted himself in a number of material matters and that his evidence was in conflict with that of another important witness P.W.4, whose evidence was accepted and relied upon by the learned trial Judge, without even attempting to resolve the two inconsistencies. The learned trial Judge said:-

“I am aware that where prosecution witnesses contradicted each other in their testimony, the court would not choose the accuracy of one witness as against the other except where the prosecution has adduced cogent (sic) reasons e.g. that a witness is hostile. All of them are otherwise unreliable (See Onubogu & Anor. v. The State (1974) 9 S.C. 1 at p.20).

This is not such an instance. I admit there is a minor inconsistency here (p.w. 2 speaks of a “perforated door” and P.W.4 of a “whole plank” door). I have directed my mind to these minor inconsistencies or inaccuracies and appreciate their existence. But they do not go to the material issues for determination in this case. Besides both witnesses speak of two different situations – where the door is closed and where it is ajar.

Viewed in another way, “the discrepancies were not conflicts and were a minor nature that is expected in the testimony of witnesses who have not had the advantage of being schooled about their evidence” (See Umunna & Ors. v. Okwuraiwa & Ors. (1978) 6 S.C.1 at p.13 per Obaseki, J.S.C.). Later on, on the same page of the judgment he emphasised the importance and reliance on the evidence of both p.w.2 and p.w. 4 when he said:-

“As I said before, I accept the testimony of p.w.2 and I am satisfied that he is a witness of truth. P.W.4 is, no doubt, a truthful witness. I also find as a fact that p.w.1 was called into accused’s room by p.w.2 after the accused had killed the deceased.” The important ground of complaint before the Court of Appeal was the unsatisfactory evidence of the prosecution witnesses and the confused thinking of the learned trial Judge. It was contended that the case against the appellant was not satisfactorily proved; that the conflict between the evidence of the two principal witnesses, if properly evaluated, could not support the conviction on ground of irreconcilable, conflicting and inconsistent evidence.

Omo-Ebo, J.C.A., in the lead judgment of Court below agreed that there was material (not minor) conflict in the evidence of the two witnesses but refused to intervene, and gave the following reason:- “There is no doubt that there was contradiction in the evidence given by p. w.2 under cross-examination wherein he said as follows:” I stayed behind the perforated door and was able to see what was happening inside the room. The door was ajar.”

when compared with the evidence of p.w.4 – the investigating police constable who visited the scene of the crime and testified as follows:- “A wall of mut (sic) separates p.w.1’s room from that of the accused, deceased, and p.w.2. Each room has a wooden door but there is no door connecting the two rooms. The door of Benson’s room can not be seen through i.e. it is a whole plank through which it is impossible for the eye to, penetrate. Once outside it, one can not see what happens inside the room – P.W.2’s room.”

“In my view, since p.w.2 in his evidence had stated that as soon as the accused entered the room (after he had opened the door for him he (accused) asked him to get out of the room and he did so, then on the evidence of P.w.4 it would not be possible for P.W.2 to see what happened inside the room or what the accused was alleged to have done inside the room through the door which the p.w.4, as the investigating police constable had described as being made of a whole plank through which it was impossible for the eye to penetrate. In the circumstances of this case, I agree with the submission of Counsel to the Appeallant (sic) that this was a material contradiction in the evidence of P. W. 2 and P. W. 4 as tendered by the prosecution. However, since the door was not perforated and could not be seen through, it must be borne in mind that P.W.2 also stated in his evidence that he also saw what happened in the room through the door as it was left ajar.”