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.”

I am of the view that he was in error. In Onyema Oke & Ors. v. Amos Eke & Ors. (1982) 12 S.C 218 p.233, Irikefe, J.S.C. (as he then was) stated the correct principle when he said:-“….There was a glaring inconsistency in the testimony on the boundary and this, regrettably, was not resolved by the learned trial Judge at the end of the case…. The learned trial Judge failed to make an express finding on this conflict and I would wish to adopt the language of this court in Okoye v. Kpajie – (1973) N.M.L.R. page 84 where it was said –

“With respect, learned counsel for respondents must appreciate that where conflicting evidence was adduced in a court of trial, and the learned trial Judge who heard and saw the witnesses failed to resolve the conflict, it is impossible for an appeal court to make findings in such a situation.” See also Fashanu v. Adekoya – 1974 – 6 S.C. p.83 where Coker JSC delivering the judgment of this court stated as follows: “The appraisal of oral evidence and the ascription of probative values to such evidence is the primary duty of a tribunal of trial and a court of appeal would only interfere with the performance of that exercise if the trial court had made an imperfect or improper use of the opportunities of hearing and seeing the witnesses or has drawn wrong conclusions from accepted or proved facts which those facts do not support or indeed has approached the determination of those facts in a manner which those facts cannot and do not in themselves support.” See also Woluchem vs. Gudi 1981 5 S.C.p.291 and Board of Customs & Excise vs. Barau – S.C 39/82″.

I must observe that the witness p.w.2 did not say he saw what happened through the open door because it was ajar. His evidence was that he peeped through the perforated door. For the trial Judge himself found

“I also accept the evidence of P.W.2 that he saw accused hit the deceased with an iron rod (Exh.A) on a mat (Ex. B) while he was peeping into the room of accused where there was candle light through a perforated door that was ajar.”

The question whether or not P.W. 2 actually saw the accused commit the act which resulted in the death is most crucial to the case of the prosecution and without that evidence, the accused cannot be found guilty of the murder. Therefore it was wrong for the trial Judge to hold that.

“I have directed my mind to these minor inconsistencies and inaccuracies and appreciate their existence. But they do not go to the material issues for determination in this case. ”

With respect to the learned trial Judge, they do. Equally, the learned justice of appeal was in error to dismiss the complaint because according to him

“understanding of the law issuing from the principle that a court of appeal may not substitute its own opinion of the fact for that of the trial court in respect of a finding of fact which is not unreasonable or illogical and which is supported by the available evidence. So I do not consider myself competent to interfere with the said finding of fact.” With due respect to the learned justice of appeal, I think he was in error, for his view is only half truth. It is illogical to accept and believe the evidence of the two witnesses who gave two different and irreconcilable conflicting accounts of the same situation.

It is equally wrong for a trial Judge to attempt to rationalise the evidence of a witness for purpose of arriving at a preconceived conclusion, particularly when what the witness said is impossible having regard to human experience. For how can a person see through a solid piece of wooden door This is not a question of opportunity of seeing and hearing the witnesses “and being in a position to watch their demeanour.” It is a matter of common sense, a matter of evaluating the evidence of the witness and is a duty which the appeal court is competent to undertake. The issue here is not that of credibility of the 2nd p.w. or p.w.4 . It is that of not resolving the conflicting testimony of two witnesses both of whom the trial Judge believed and relied upon for his decision. That cannot be a sound decision.

The learned justice of appeal himself was of the view that:

“I, for my part, might not have placed so high a premium upon the evidence of P.W.2 and may not have arrived at the same conclusion which the learned trial Judge did.”

It is the duty of the appeal court carefully to look at the whole evidence and make up its mind whether the finding of the trial court is sound. If it comes to the conclusion that that finding is unsound or perverse, it ought to set the finding aside. In Lawal v. Dawodu & Ors. (1972) 1 All N.L.R. (Pt.2) 270, p.286 line 25 to p.287 line 42:-

“A trial Judge, however learned, may draw mistaken conclusions from indisputable primary facts and may indeed wrongly arrange or present the facts of which the foundations of the case rest. In those circumstances, it would be completely invidious to suggest that a Court of appeal should not intervene and do what justice requires but should abdicate its own responsibility and rubber-stamp an error however glaring.

In Fatoyinbo and Ors. v. Williams alias Sanni and Ors. (1956) 1 F.S.C. 87 the Federal Supreme Court observed on a similar occasion as follows at pp.87.

“The appeal is accordingly one on facts and the principles on which a court of appeal acts in such appeals are succinctly stated thus in the opinion of Lord Thankerton in Wall or Thomas v. Thomas ….. III. The appellate Court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakenly so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court.”

….For these reasons, applying the principles in Wall or Thomas v. Thomas it seems to me that as the learned Judge did not, in coming to his decision, rely on the advantages of having seen and heard the witnesses, and as some of the reasons which he gave for his decision have been shown to be erroneous, I think that this appeal falls within the first and third of Lord Thankerton’s propositions above quoted. It is therefore open to this Court to examine all the evidence in the suit…”

Only recently the Supreme Court had occasion to re-state the principles on which a court of appeal acts in its approach to appeals on fact. And, in Paul O. Omoregbe v. Ehigiator Edo SC.142/69, decided on the 29th October, 1971, this Court observed as follows at p.9 of the judgment:-

“It is not the business of a court of appeal to substitute its own views of the facts for those of the Judge or tribunal that had heard and seen the witnesses but if the judge or tribunal has failed to make proper use of the opportunity of seeing and hearing the witnesses, or if from stated or uncontroversial or indisputable facts inferences are shown to have been drawn which are wrong or are not supported by the evidence, then the court of appeal must in the interest of justice exercise its own powers of reviewing those facts and drawing appropriate inference from them … (the italics mine)

The learned trial Judge himself said he ignored the two statement the accused (Exhs. C and D) and his evidence on oath. He was wrong to do so. The law is clear that so long as the statements were made by the accused voluntarily, they are admissible and should have been considered. See Jimoh Yesufu v. The State (1976) 6 S.C. 167. R. v. Vami (1952) 14 WACA 30 Inusa Seidu v. The State (1982) 4 S.C. 41,58-59. Obue v. The State (1976) 2 S.C. 141. As Obaseki J.S.C. said in Chief Ebba v. Chief Warri Ogodo & Ors. (1984) 4 S.C. 84 p.91;

“The need to see that justice is not miscarried should always dominate the attitude of the appeal court when dealing with appeals raising question of fact”.

It was not right for the learned trial Judge to ignore the contents of the two statements and the evidence on oath of the accused. His defence was that the deceased was struck accidentally with the iron rod. One of the policemen (p. w.5) who investigated the case did not consider it fit to investigate whether or not accused was owing the father of the deceased (P. W.1) arrears of rent and whether there was in truth a fracas over the rents between him and the accused that night. The learned trial Judge did not consider the aspect of the hitherto cordial and harmonious relationship between the accused and the two sons of P.W.1. He also did not consider why P.W.1 should lie that he took the iron rod to the police station when in fact P.W.4 said he found the iron rod at the scene and recovered it from the place. He did not consider why P.W.2 should contradict himself by saying first that he was in the room when the accused hit the deceased with the iron rod but changed that he was outside. And why did the witness (P. W.2) try to reconcile his evidence by saying the door was ajar after the untruth that the door was perforated when in fact it was solid piece through which it was impossible to see what happened in the room.

These and other nagging questions should have persuaded the trial Judge that the evidence of P.W.2 and P.W.1 could not be relied upon and that the evidence adduced by the prosecution on the whole was unsatisfactory with the result that the guilt of the accused was not proved beyond reasonable doubt.

There is yet another aspect of the judgment which is most unsatisfactory. The learned trial Judge, I venture to say, was not clear in his mind what he had to decide. For his judgment is confused, conflicting if not incomprehensible. Let me mention just some few passages in the judgment: “The accused made a voluntary statement (Exh. C) … This is a voluntary confession within the meaning of section 27 of the Evidence Act. It was not alleged that it was caused by any inducement or promises …. ”

“The confusion is quite possible. I accept the evidence of P.W.5, 3 and 4 to the effect that accused made exh. ‘C’ voluntarily on 15/7/80 and that it was confirmed as a voluntary statement before p.w.3 and 15/7/80.”

Yet he came to the conclusion that:- “I direct myself accordingly and I am firmly of the view that exhibits C., D. and accused’s oral evidence in court do not constitute evidence upon which this court can act. Such inconsistency makes the evidence always unreliable. “That is exactly what our decision in that case (i.e The Queen v. Joshua (1964) 1 All N.L.R. 1 at p.3) was intended to convey and did convey” (per Fatayi-Williams , J.S.C (as he then was) in Christopher Onubogu & Anor. v. The State (1974) 9 S.C. 1 at p.19). This Court (since the evidence of the accused was different from the contents of his earlier statements to the police (Exhs. C and D, is entitled to treat both statements and accused’s oral testimony as unreliable and ignore them (see SC.41/80; Omogodo v. The State (unreported) decided on Friday 8/5/81 per Nnamani, J.S.C.) The net result is that exhibits ‘C’, ‘D’ and accused’s oral testimony in court do not constitute evidence for the consideration of this court. They are all inconsistent and inconsistent with each other. They are therefore “unreliable” and should be “ignored”. 1 hereby conform.”(sic)

Later on the same page 30/30 – “Both defences fall to the ground. Besides accused’s oral testimony in court is inconsistent with his statement to the police (Exh.C). The legal effect is that both should be regarded as unreliable and be ignored. I comply.” (sic). He repeated the same view still later in his judgment when he said:-

“Both statements are inconsistent and are unreliable and must be ignored. That is the law.”

I have myself read the two statements and the testimony of the accused as recorded. I can find no inconsistency in them. The accused admitted the iron-rod accidentally hit the deceased, he stated that it was during a scuffle between him and P.W.1. He was holding the iron-rod trying to fasten the door when P.W.1 arrived to demand the arrears of rent he was owing him. A scuffle ensued between the two of them. He never knew how the iron-rod landed on the head of the deceased who was sleeping on the mat in the room. There was no previous quarrel between him, P.W.1, P.W.2 and the deceased. He was unable to explain how it all happened. That is a summary of the two statements of the accused and his testimony in defence of the charge. The learned trial Judge held that the statements and testimony in court were inconsistent, unreliable and therefore would be ignored.

In my view the judgment of the trial Judge was most unfair to the accused person and wrong in law. To say the least, the judgment seemed to be the product of a defective robot and the statements of the law and their application to the facts of the case, misleading and misconceived. He said the accused “is a liar and worthless witness …. I am unable to believe or accept his evidence in this case. All the defences fairly raised on the evidence has been considered. They all fall to the ground. “Mr. Rhodes has contended that the learned trial Judge failed to give due consideration to the defence because he considered the two statements (Exhibits C and D) to be inconsistent with his oral evidence and therefore regarded the accused a liar and worthless witness. He submitted that it is not the law that accused should be convicted because the Court regarded him to be a liar. He submitted that what the court should consider is whether the prosecution has proved its case against the accused person. I agree that there is substance in this submission. After reading through the whole proceedings, I hold the view that the case against the appellant was not satisfactorily proved and that his defence was not adequately considered. The trial Judge in another passage in his judgment said:-

“….. the accused impressed me forcibly as an unmitigated and shameless liar. He had every appearance of lying and lied unto the Court.” With respect, I do not know how appearance alone could show that a witness is an unmitigated liar. However, there are decisions of this Court that it is not right to convict a person for an offence which has not been proved simply because he lied. See Okpere v. The State (1971) 1 All N.L.R. 1 Haruna & Anor. v. Commissioner of Police (1967) N.M.L.R. 145. In Philip Omogodo v. The State (1981) 5 S.C. 5, p.22 per Nnamani, J.S.C.

“The tribunal ought, in spite of numerous lies told by the appellant, have weighed the case of the prosecution very carefully, to determine whether on the totality of that evidence, the guilt of the appellant was proved beyond all reasonable doubt. I do not think it did so.”

I agree with this statement, which is particularly relevant to this case. These misdirections and the unsatisfactory conduct of the proceedings by the trial Judge are my reasons for allowing this appeal, quashing the conviction and sentence of death and substituting a verdict of not guilty, discharged and acquitted.

ESO, J.S.C. (Presiding): I had a preview of the Reasons for Judgment which had just been delivered by my learned brother Coker J.S.C. and I am in complete agreement with him that the judgment of the trial Court was like a swinging pendulum. This is precisely how justice could never be attained.

The appeal was allowed for these reasons and the reasons contained in the judgment of my brother Coker J.S.C.

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SC.111/1985