Jonathan Igbi & Anor V. State (1998)
LawGlobal-Hub Lead Judgment Report
ACHIKE, J.C.A.
The two appellants and six others were arraigned and charged on two count charge of conspiracy and murder of one Abel Emunemu (now deceased) on or about the 25th day of May, 1986 at Otumara Village in Orerokpe Judicial Division, contrary to sections 324 and 319 (1) respectively of the Criminal Code Cap. 48 Vol. II, Laws of the Bendel State of Nigeria, 1976, applicable to Delta State. In the course of the trial, three of the accused persons i.e. 1st, 2nd and 3rd died in prison. At the conclusion of trial, 4th, 5th and 7th accused persons were discharged and acquitted while the 6th and 8th accused persons were convicted and sentenced to death by the trial Judge, Okungbowa, J, The two accused persons have herein appealed against their conviction and sentence.
On the night of 24/5/86, the deceased, one Josephine P.W.1, P.W.2, P.W.3 and P.W.4 and others attended the burial ceremony in a neighbouring village, Otumara. P.W.3, Grace Edema, was one of the chief mourners. The above-named persons and some others went to the burial on P.W.3’s invitation. Also, at the burial ceremony were the two appellants, who were from the aforesaid village. At a point during the ceremony (about 3.00 a.m.) of 25/5/86, the deceased was alerted by one Umukoro, 7th accused at the trial that some Otumara boys were planning to attack him and those with him on their way home, it being alleged that the deceased was befriending Josephine who was once a girl friend to one of the Otumara boys and had the effrontery of bringing her to their village. The deceased thereafter sent Josephine back to Igun with the help of P.W.1 who look her away in his car at about 12 a.m. Later, the 7th accused came to inform the deceased and his group that the Otumara Boys had gone to waylay them on the road.
At about 3 a.m., the deceased, P.W.2 and P.W.4 against the advice of P.W.3, decided to go back to Igun through an alternative road, unknown to them that this was the route which their attackers were waiting, On their way home, they were chased by a group of boys among whom were the 1st and 2nd appellants and who were armed with a gun and a cutlass. At the nearby bush the deceased was matcheted to death.
At the trial, the trial Judge believed and accepted the evidence of P.W.2, P.W.3 and P.W.4 as to what happened at burial ceremony leading to the scene of crime on that fateful bright moonlight night.
Learned counsel for the 1st appellant (i.e. the 6th accused) Mr. J.I. Ojeh identified the following five issues for determination:
(i) Whether the 1st appellant (Jonathan Igbi) has been properly identified in this case.
(ii) Whether the side of the road (Igun/Utumara, road) P.W.2. P.W.4 and deceased ran to and the contradictions in their evidence are material in the circumstance of this case.
(iii) Whether the trial court was right in relying on Exhibit “8” to convict the 1st appellant (who was the 6th accused) after holding that it is no evidence on which the court can act.
(iv) Whether the trial court was right in believing the evidence of P.W.2 and P.W.4 to convict the 1st appellant.
(v) Whether the prosecution has proved the case against the 1st appellant beyond reasonable doubt.”
Again, learned counsel for the 2nd appellant, Mr. C.J. Akpobome postulated four issues for determination, to wit:
(i) “Was the learned trial Judge right in convicting the 2nd accused/appellant for murder of Abel Emunemu when there are contradictions and incons1stencies in the evidence of P.W.2 and P.W.4, the star witnesses in the case.
(ii) Was the learned trial Judge right when he relied on Exhibit “G” which was statement given to the Police by the 6th accused person now the 1st accused/appellant in convicting the 2nd accused/appellant after considering the following cases R. v. Ukpong (1961) 1 All NLR 25 (1961) 1 SCNLR 53 and Asuquo William v. The State (1975)9-11 SC. P. 139 at 154. See P. 58 line 30-32 and P. 58 lines 36-41.
(iii) Was the learned trial Judge right when he said in his judgment see p. 53 lines 42-46 and p. 54 lines 1-10 that and I quote “whether or not the deceased, 2nd and 4th P.W. ran to one side of the road or the deceased and the 2nd P.W. to one side and the 4th P. W., alone to the other side is immaterial. What is important is whether or not from the positions the 2nd and 4th P.W.s were in the bush, they could recognise the accused person.” It is quite clear from the statement of 2nd P.W. that he was not in a position to see the people who murder Abel Emunemu that night because in Exhibit 1 he said and I quote “As they were pursuing us I ran to the bush and hid while others ran into another direction. Later I started to hear shout from my brother Abel that he was killed by some people. I was afraid and I hid in the bush”. See p. 63 lines 20-24. He did not say I saw the accused persons killing the deceased. See Exhibit 1. the statement of P.W.2 given to the police on 25/5/86.
(iv) Was the learned trial Judge right in believing the evidence of P.W.4 that he identified the accused/appellant in the police custody on 25/5/86 when in fact, the 2nd accused/appellant only came by himself to the police station, Eku on 10/6/86? See p. 15 lines 16-20 and p. 16 lines 17-19. This piece of evidence also contradicted the evidence of P.W.6 (I.P.O) when he said that the 2nd accused/appellant was arrested on 10/6/86 and that P.W.4 did not identify the 2nd accused/appellant to the police. See p. 23 lines 16-20, p. 24 lines 5-6, p. 26 lines 3-5 and lines 7-14.”
For the respondent, the learned principal legal officer Mr. C.O Emifoniye, postulated three issues for determination, namely,
Issues for determination:
- “Were there material contradictions in the evidence of P.W.2 and P.W.4 as to raise doubts about their veracity?
- Whether the accused/appellants were sufficiently identified.
- Whether the conviction of the accused/appellants was based on Exhibit ‘8’.
Examining the three sets of issues for determination I find the respondent’s issues sufficiently cover the issues to be considered in this appeal. I therefore prefer the respondent’s set of issues as good and ample for the consideration of this appeal.
Issue No. 1
- “Were there material contradictions in the evidence of P.W.2 and P.W.4 as to raise doubts about their veracity?”
On behalf of 1st appellant, his learned counsel, Mr. J.I. Ojeh, submitted that there were material contradictions between the statement made by the star witness, P.W.2 in his statement to the police, Exhibit I and his testimony in evidence – in – chief, as well as under cross-examination. The relevant pages in the record are page 3 lines 20 – 24, page 8 lines 19 – 22 and page 9 lines 32 – 34. Furthermore, it was submitted that the statement in Exhibit I and the aforesaid excerpts of P.W.2’s testimony were contradictory with the testimony of P.W.4 at page 14 lines 20 – 24.
A similar submission was made in favour of the 2nd appellant by his learned counsel, Mr. CJ. Akpobome, the references to pages of the record being identical. Both counsel cited several legal authorities including Bozin v. State (1985) 2 NWLR (Pt.8) 465; Aruna v. State (1990) 6NWLR (Pt.155) 1255; Onubogu & Anor v. State (1974) 9 S.C. 1 and Boy Muka & 2 Ors. v. State (1976) 9 – 10 S.C. 305.
The learned Principal State Counsel, Mr. C.O. Emifoniye, for the respondent, submitted to the contrary, contending that the statement of P.W.2 to the police, marked Exhibit 1, was neither contradictory with his oral testimony nor the testimony of P.W.4. Finally, counsel submitted that for any conflict to be fatal, the conflict or mix-up must be substantial and fundamental as to any of the vital issues in question at the trial court. He relied on Namsoh v. State (1993) 5NWLR (Pt.292) 129.
We shall first identify the statement, Exhibit 1 made by P.W.2 and his testimony both of which are alleged to be in conflict with each Other and also in conflict with the evidence of P.W.4. In Exhibit 1, this is what P.W.2 said inter alia;
“As they were pursuing us I ran to the bush and hid while others ran into another direction. Later I started to hear shout from my brother Abel that he was killed by some people. I was afraid and I hid in the bush. They used cutlass to kill my brother Abel. They carried the body to a place I did not see”.
Then in his oral testimony, P.W.2 testified as follows in evidence- in-chief:
“While we ran along the road for a while, the deceased and I diverted into the bush on the left hand side of the road and we hid behind some grass known as a shell or Owolowo grass. Moses diverted to the bush on the right hand side of the road. Shortly afterwards the 6th accused person came to where the deceased and I were hiding. There was bright moon-light and I was able to recognise him. I saw him inflict matchet cut on the deceased. He did not inflict matchet cut on the deceased. He did not inflict any matchet cut on me.”
Under cross-examination the same witness stated that –
“My late brother the deceased was killed on the right side of the road while facing Igun from Otumara.”
A close scrutiny of Exhibit 1 shows that it is vague as regards the direction from where they (i.e. the deceased, P.W.2 and P.W.4) were running from nor can it be pinned down with any degree of certainty to where P.W.2 “ran to on the bush and hid while the others ran into another direction”. It will be palpably erroneous for anyone to read into the content of Exhibit I that the three people ran either into two opposite sides of the road (i.e. in terms of right and left) or the proximity of P.W.2 from the deceased and P.W.4 respectively. So far, from Exhibit 1, that is a mere guess. Even the testimony of P.W.2 while led in evidence does not shed much light to the situation because it merely stated that P.W.2 and the deceased diverted to the bush on the right of the road while P.W 4 diverted to the left. Again, there is no indication as regards from what direction to what direction they were running, nor how far each was from the other. One point that is being made clear from this piece of evidence is, namely, that the deceased met his death on the right of the road bur with no degree of certainty, as earlier stated, whether it was towards or away from Igun. It cannot be said that this testimony contradicts any portion of Exhibit I but it is fair to recognise that there appears to be a discrepancy between it and the assertion in Exhibit I wherein there is the impression that P.W.4 and the deceased ran towards a direction different from that taken by P.W.2. Finally, P.W.2’s answer under cross-examination by counsel for 8th accused, simply confirmed the testimony of P.W.2 to the extent that the deceased met his waterloo on the right side of the road while facing Igun from Otumara.
It seems to me that except for its discrepancy as identified above, it cannot be said that there is any conflict in the content of Exhibit 1 and the testimony of P.W.2 at the hearing.
Against this background, one can now examine the testimony of P.W.4 vis-Ã -vis the evidence of P.W.2., P.W.4 in his testimony (see P. 14, lines 20-24) attested as follows:
“Three of us, myself, the deceased and P.W.2 ran to the left right hand side of the road. In the bush I hid on the left while the deceased and P.W.2 hid themselves on the right”.
While there is clearly the agreement in both P.W.2’s and P.W.4’s testimonies that P.W.2 and the deceased were rather together on the right side of the bush, P.W.4 was on the left side; the only discrepancy is that all three were on the right side of the road. And the only question was the direction from which this people were moving to.
The question is what do I make of this discrepancy as to the resultant directions to which the deceased, P.W.2 and P.W.4 found themselves. I can only effectively deal with this resultant directions and positions of these three dramatis personae in the context of the circumstances of this case. Whether they were on the same side of the road or on different sides of the road, to my mind, is not necessarily controlling. The substantiality of their positions or directions may become relevant and material to the determination of the crucial issue raised in the appeal only if it relates to the quality of their evidence with regard to the fact of the murder of the deceased.
Bearing in mind that the evidence discloses that the incident occurred at the earlier hours of the morning of 25/5/86 (sometime after 3 a.m.), it seems to me that the visibility on that fateful night and the positional location of P.W.2 and P.W.3 vis-Ã -vis the deceased at the time the deceased was allegedly killed are undoubtedly matters of crucial importance in order to give credence or otherwise to the evidence of these two star eye witnesses. P.W.2 in his testimony stated he heard the deceased shouting that he was killed by some people; he also said they used cutlass and that they carried the body to a place he did not see. Not guided by any evidence from P.W.2 as regards his distance from the deceased, it is certainly doubtful to me that this piece of evidence without more, could have lent much weight to the prosecution’s case. Even P.W.2’s evidence-in-chief did not improve the situation. Although this witness said he saw the 6th accused inflict matchet cut on the deceased under the bright moon-light, never-the less in so Faras he failed to show his relative proximity from the deceased that piece of evidence, on proper evaluation, would be worth very little. P.W.2’s further testimony in answer to the cross-examination by counsel to the 2nd appellant, i.e. 8th accused, was equally wholly unhelpful in this regard.
In other words, the evidence of P.W.2 as evaluated above, with or without the mix-up or discrepancy, would have been very little.
Nevertheless, the missing link in the prosecution’s case as regards the relative positions of the deceased from P.W.2 and P.W.4 was supplied by P.W.4 when he testified that he was about 18 feet away from the deceased and P.W.2. Under the bright moon-light and a distance of 18 feet away, P.W.4 could have been advantageously placed to see the deceased’s assailants, and with P.W.2 obviously closer to the deceased, he was even in a better position to observe the killing of the deceased, his brother, on that ill-fated day.
To round off the discussions on issue No.1, I am clearly of opinion that the discrepancy or mix-up in this appeal as specifically addressed by the learned counsel for each of the appellants and the respondent, in so far as they are not substantial and fundamental to the issues in question before the trial court, cannot be fatal to the prosecution’s case. Accordingly, Issue No. 1 is hereby resolved against the appellants. See Onubogn v. The State (1974) 9 S.C. 1 at 2; Namsoh v. State (1993) 5 NWLR (Pt.292) 129 at P. 142.
Issue No.2
Whether the appellants were sufficiently identified?
We shall turn to the evidence of the witnesses to see whether or not each of the appellants was sufficiently identified. P.W.2 in Exhibit I stated at the earliest opportunity that though he did not know the names of the people who killed the deceased, nevertheless he could identify them. This statement was made on the day of the murder. At the trial, P.W.2 also testified that he knew all the accused persons.
He further testified that the 6th accused, herein 1st appellant, came to where he and the deceased were hiding on that day of the murder and he was able to recognize him because of the bright moon-light that was shining. He stated categorically that he saw 1st appellant inflict matchet cut on the deceased. It is manifest that P.W.2 was not effectively cross-examined by learned counsel to the 1st appellant on these assertions save that it was feebly suggested to him that he did not see 1st appellant on that day. That suggestion was not sustainable when it was in evidence given by P.W.4 that P.W.2 and himself ran into the bush with the deceased on the date of the murder and 1st appellant admitted running into the bush on the same day in company of some of the accused persons in pursuit of this alleged thief. This piece of evidence was not challenged by 1st appellant. Even if the last submission is disregarded the suggestion that P.W.2 did not see 1st appellant cannot be true when, it has earlier been stated that P.W.2 was at the burial ceremony and ran to the bush in company of P.W.4 and the deceased, who was his brother, and when it is also borne in mind that 1st appellant testified that he was the master of ceremony for the burial ceremony. Clearly, the 1st appellant by his own ipse dixit occupied a significant position at the burial ceremony where every person in attendance would have noticed him.
I concede the submission of learned counsel to 1st appellant that since 1st appellant was arrested on 14th June, 1986, the testimony of P.W.6 that the P.W.2 and P.W.4 identified the accused persons to him did not include the 6th accused (herein 1st appellant) because the date of 1st appellant’s arrest was later in time to the date of arrest referred to by P.W.6. Reading the evidence of P.W.6 between the lines, it is very clear to me that when he (P.W.6) said that P.W.2 and P.W.4 identified the accused persons to him, (at p. 26 lines 5 and 6) the issue of identification was clearly referable only to the arrests of 4th accused and one Johnhull Ideno which were respectively made on 28/5/86 and 26/5/86. The conclusion by learned counsel for 1st appellant that P.W.6 lied when that witness said that the accused persons were identified to him is an unfair comment because unfortunately counsel is reading the testimony of P.W.6 grossly out of context in order to vilify him. There is no need for this. The testimony of P.W.6 is now in black and white and cannot be tampered with by anyone who may wish to do so. Any grand design to effectively disparage that piece of evidence by P.W.6 would fail because P.W.6’s testimony in this regard must be read contextually and be seen to flow from the full testimony of that witness in that regard.
I would wish to conclude this aspect of issue No.2 as it relates to the 1st appellant by observing that the identity of 1st appellant was not in issue throughout this case. I cannot place my hand on any part of the record to suggest or show that the testimony or Exhibit 1 made by P.W.2 that he knew all the accused persons was a subject of any controversy. Counsel cannot, in his brief, make a case on behalf of his client when such a case was not even feebly put across for consideration by the trial court having regard to the evidence led at the trial.
We shall now turn to the evidence of P.W.4 as it relates to the question of identification of 1st appellant. In his testimony, this witness first claimed that he knew the accused persons. Furthermore, he attested to the fact that while he, P.W.2 and the deceased ran into the bush for cover, he saw 1st and 2nd appellants inflict matchet cuts on the deceased while some others attacked with sticks. He remained in hiding until the deceased was killed by the attackers. Testifying lucidly, the witness further stated that after the deceased was killed, he saw 1st and 2nd appellants; with the other attackers remove the deceased to a destination he did not know. He further attested to accompanying the police to arrest 2nd appellant and some accused persons, but did not include 1st appellant. The witness also confirmed not telling the police the names of 1st and 2nd appellants but stated that he could identify them if he saw them. The witness also confirmed in his evidence that when he described the 2nd appellant at the police station, one of the accused persons mentioned the 2nd appellant’s name. He further emphasised that 2nd appellant matcheted the deceased and that he also identified 1st appellant after the 1st appellant was arrested.
This witness remained unshaken as to knowing 1st appellant and the role he played leading to the death of the deceased. We pause to state that in no place did the record show that this witness was challenged in cross-examination as regards his testimony about knowing or identifying 1st appellant.
With regard to the identification of 2nd appellant, the testimonies of P.W.2 and P.W.4 confirmed that they knew the 2nd appellant, but did not know his name and gave detailed and vivid evidence in relation to what they saw at the scene of crime as it relates to 2nd appellant, leading to the death of the deceased. Like in the case of 1st appellant, there was no serious challenge to the testimony that both P.W.2 and P.W.4 were there at the locus in quo on the eventful day and were positioned advantageously some 18 feet away from the deceased on a bright moonlit night to observe the dastardly acts of the 1st and 2nd appellants, including those of the other accused persons.
It is clear to me that some misunderstanding appears to exist in the minds of the counsel for the appellants with regard to the question of the identification of the appellants. A person can ordinarily be identified without the need to mount a colourful parade of suspects to a crime at any stage of the investigation. I am referring to what is generally called “identification parade.” Whether such a parade should be mounted or not, a lot depends largely on the facts available to the investigating police officer at the time of investigation and the necessity to have such a full-dressed identification parade. Where no serious issue of identity of the suspect is raised from the facts available to the investigating police officer, it will be absurd to embark on a large-scale colourful exercise. Where, for example, a witness in his statement to the police states that he does not know the name of a suspect but would easily identify him when he sees him and the witness, on seeing the suspect, spontaneously and without any prompting by any person, goes on to say using such words to that effect, and pointing at the suspect, confirms that he is the person he saw on the fateful day, this, to my mind will be sufficient and proper identification of the suspect, moreso, when such a witness is not shaken nor discredited under cross-examination to show that he is not a witness of truth.
It is erroneous in law to oppose or impugn the identification of a suspect by a witness merely because the witness does not know the name of the suspect. No doubt knowing the suspect’s name will strengthen the credibility to such testimony. Alluding to the fact of visual identification in Adeyemi & Ors. V. The State (1991) LRCN 490 at p. 504; (1991) 1 NWLR (Pt. 170) 679 at 694 F-H Olatawura J.S.C. opined:
“It is fallacious to think that the only identification of an accused person acceptable when an issue of identification is raised is an orchestrated identification parade. Identification depends on mental ability and perception of individuals. Where a witness who gave evidence of visual identification was not cross-examined not (sic) shaken under cross-examination, nothing stops a trial Judge from accepting his evidence.”Undoubtedly, the positive, convincing and virtually unchallenged evidence of P.W.2 and P.W.4 of identification of 1st and 2nd appellants from a distance of about 18 feet from the deceased at a point where he was killed point unequivocally to the fact that the appellants were the assailants of the deceased, moreso as the witnesses were not discredited. See Anyanwu V. State (1986) 5NWLR (Pt.43) 412 and Orimoloye v. The State (1984) 10 S.C. 138. Where, as in this case, the learned trial Judge had before him positive and unchallenged eye-witness accounts of the sordid murder of the deceased attested to by P.W.2 and P.W.4, and by their proximity to the scene of matcheting of the deceased, on a bright moon-lit early hours of the morning, and the assailants had been unequivocally identified to the satisfaction of the court, he is entitled to believe the witnesses and act on their evidence. See Azeez v. The State (1986) 2 NWLR (Pt.23) 541.
In all the circumstances, having regard to the positive and unshaken evidence of P.W.2 and P.W.4 of identification of the 1st and 2nd appellants which the trial Judge accepted and rightly, in my view, acted upon, I am bound to resolve the second issue in favour of the respondent.
Issue No.3
Whether the conviction of the accused/appellants was based on Exhibit 8?
Counsel for the 1st and 2nd appellants expressly postulated this issue in their respective briefs, to wit, as Issue No.3 in 1st appellant’s brief, at page 4, and as Issue NO.3 in the 2nd respondent’s brief at p. 3. I am to say that save to mere setting it out in 1st appellant’s brief at p. 4 of this issue, no argument was advanced in respect of same. In the result, 1st appellant’s issue No.3 is deemed abandoned and the same is hereby struck out.
I shall now consider 2nd appellant’s argument on this issue which is set out in less than half a page of page 6 of the 2nd appellant’s brief. Thereafter, I shall consider the respondent’s argument on the same issue which is set out at pages 4 and 5 of its brief.
First, the 2nd appellant’s argument. As earlier stated, this issue runs only about half the page. I observe that the argument advanced therein deals with the issue of contradictions and inconsistencies that has been dealt with under issue No. 1. There is no argument, directly or indirectly, referable to the 2nd appellant’s conviction being based on Exhibit 8; in fact, there is no mention whatsoever of Exhibit 8 in that half-paged argument in the brief. In the result, there is no substantial argument whatsoever made on behalf of the 2nd appellant in respect of the third issue for determination. For the respondent, the learned Principal State.
Counsel submitted that the learned trial Judge was right to disregard Exhibit 8, statement made by 1st appellant which was found to be incons1stent with his testimony on oath. Nevertheless, counsel submitted that the trial Judge proceeded to consider the other available evidence adduced at the trial before arriving at the conclusions he did.
It is clear the 1st appellant’s statement to the police Exhibit 8 was at variance and in contradiction to his testimony in court. The trial court is not allowed in law to pick and choose between the two assertions. And rightly in my view, the learned trial Judge found the oral testimony and Exhibit 8 in the circumstances unreliable and declined to act on either of them. The learned trial Judge was unquestionably correct in his posture with regard to the contradictions between 2nd appellant’s extra judicial statement to the police and his testimony in court before him. The law is now trite that a trial court faced with substantial and fundamental contradictions between the evidence of a witness at the trial and the said witness’s previous statement of statements on an issue or issues crucial to the determination of the case in hand, the court is left with only one option, namely, that it is unsafe to act on such unreliable evidence or the previous unsworn (or even sworn) statement; in the result the court is obliged to reject both the previous statement as well as the evidence tendered at the trial. See Onubogu v. The State (supra); R. v. Ukpong (1961) 1 All NLR 25; (1961) 1 SCNLR 53 and Asuquo William v. The State (1975) 9-11 S.C. 139 at 154. Now having disbelieved the evidence of 2nd appellant, the Judge looked elsewhere, namely the evidence of P.W.2 and P.W.4 to satisfy him about the guilt of the appellants. These were the eye-witnesses to the killing of the accused. The learned trial Judge believed these two witnesses and accepted their evidence. I had earlier in this judgment had the opportunity to evaluate the evidence tendered by these two witnesses which I found to be positive and unequivocal. I also noted their respective testimonies were neither unchallenged nor contradicted. I may be permitted to repeat what I had stated earlier, if only by way of emphasis, namely, that where the trial Judge finds the evidence of a witness is unchallenged or uncontradicted, and where by its very nature the evidence is not incredible, the trial court has no option but to accept it and act on it. This is precisely what the trial Judge did in the case in hand. See Azeez v. The State (supra) and Bello v. Eweka (1981) 1 S.C. 101.All in all, I am satisfied and agree with the learned trial Judge that on the totality of the evidence placed before the trial Judge by the witnesses, particularly those of the eye-witnesses, P.W.2 and P.W.4, the prosecution sufficiently proved the offence of murder against the appellant respectively under section 319(1) of the Criminal Code beyond reasonable doubt. I do not find any panicle of merit in this appeal.
In the result, the appeal deserves to fail; accordingly, I dismiss the appeal of each appellant in its entirety.
Other Citations: (1998)LCN/0387(CA)