Mr. Sunday Ikenne V. The State (2018)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Enugu Division, hereinafter referred to as the lower Court, dismissing appellant’s appeal against the decision of the Anambra State High Court, hereinafter referred to as the trial Court.
The appellant and three others were arraigned before the trial Court for the murder of one IFEANYICHUKWU UDECHUKWU contrary to Section 274(1) of the Criminal Code Cap 36 Vol. 2 Revised Laws of Anambra State 1991. The four pleaded not guilty and the case proceeded to trial. The prosecution called six witnesses while each of the four accused gave evidence in his own defence. Three other witnesses also testified on behalf of the accused persons. At the end of trial including final addresses of counsel, the Court on the 19th November 2012 delivered its judgment discharging the 1st, 3rd and 4th accused persons but convicting and sentencing the appellant as charged.
This appeal is against the dismissal of appellant’s appeal against the trial Court’s judgment by the lower Court in its decision dated 14th November 2014.
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At the hearing of the appeal, having identified the briefs parties earlier filed and exchanged, counsel adopted and relied on same as their arguments for and against the appeal. The unusually repetitive seven issues distilled in the appellants brief as having arisen for the determination of the appeal read:-
“ISSUE ONE ARISING FROM GROUND ONE
Whether the Justices of the Court of Appeal of Nigeria, Enugu Division, were right when they upheld and/or confirmed the conviction of the appellant for murder and the death sentence passed on him by the trial Court
ISSUE TWO ARISING FROM GROUND TWO
Whether the learned Justices of the Court of Appeal of Nigeria, Enugu Division, were right when they held that the learned trial judge had no obligation to make any findings on the inconsistencies and contradictions in exhibits “C and “D vis-a-vis oral evidence in Court of PW2 because no submissions were made on them by counsel for inter-alia, the appellant in trial Court in his final address
ISSUE THREE ARISING FROM GROUND THREE
Whether the learned Justices of the Court of Appeal of Nigeria, Enugu Division, were right when they
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held that it was too late in the day for the appellant’s counsel to ventilate the question of consistency or contradiction in the extrajudicial statement of PW2 tendered as exhibit “D” vis-a-vis his oral evidence and therefore the appellant’s submission on the alleged contradictions are of no moment as they go to no findings of the trial judge
ISSUE FOUR ARISING FROM GROUND FOUR
Whether the learned Justices of the Court of Appeal of Nigeria, Enugu Division, were right when they failed to declare the findings of the trial judge on his evaluation of the evidence of PW2 and PW3 as being perverse which would have enabled them to intervene and reevaluate their evidence
ISSUE FIVE ARISING FROM GROUND FIVE
Whether the learned Justices of the Court of Appeal of Nigeria, Enugu Division, were right when they held that the prosecution was not obliged to call Chekwube Aniakor and Chimezie Okafor who PW2 and PW3 claimed were with them and witnessed what happened but who made statements that did not support the evidence PW2 and PW3 gave in Court
ISSUE SIX ARISING FROM GROUND SIX
Whether the learned Justices of the Court of Appeal
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of Nigeria, Enugu Division, were right when they agreed with the trial judge that the appellant shot the deceased on 13/12/2008 which he intended to cause him grievous bodily harm and which eventually led to his death
ISSUE SEVEN ARISING FROM GROUND SEVEN
Whether the learned Justices of the Court of Appeal of Nigeria, Enugu Division, were right when they affirmed the learned trial judge’s disbelief of the appellant’s evidence”
The three issues the respondent proposes in its brief as calling for determination in the appeal are:-
“Issue No. 1
Whether the Justices of the Court of Appeal of Nigeria Enugu Division were right when they held that the prosecution has through PW2, PW3 and PW5 proved their case against the Appellant beyond reasonable doubt.
Issue No. 2
Whether the Justices of the Court of Appeal of Nigeria, Enugu Division were right when they held that there was no material contradiction in the evidence of prosecution witnesses.
Issue No.3
Whether the Justices of the Court of Appeal of Nigeria, Enugu Division were right when they declared that the learned trial judge properly evaluated the evidence the defence put by the appellant.”
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Certainly, the appellant does not require all the seven issues he distilled, one each from his seven grounds of appeal, to succeed in his appeal. The practice is not commendable. It is never the number of but, rather, the relevance of the issues and the potency of the arguments on them which put the appellant on a better stead. See Ikweki V. Ebele (2005) 2 SC (Pt II) 95, and Simon Ezechukwu & anor V. I.O.C. Onwuka {2016} LPELR-26055 (SC}.
Appellant’s real grouse in the appeal hinges on the concurrent decisions of the two Courts below convicting and sentencing him as charged notwithstanding the prosecution’s failure to prove the offence for which he is convicted beyond reasonable doubt as required by law and/or on the basis of contradictory and incredible evidence. Indeed, appellant’s first issue alone subsumes all the concerns he desires to canvass in the appeal. The issue will, accordingly, be the basis of the resolution of the appeal.
Arguing the appeal, learned appellant’s counsel submits that for the prosecution to secure the conviction of the appellant for murder under Section 274 of the Criminal Code, it must prove all the ingredients of the offence by
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credible evidence. Both Courts below, it is submitted, relied on the evidence of PW2, PW3 and PW5 in arriving at their concurrent verdict. The oral evidence of PW2 at pages 182 to 185 of the record of appeal, learned counsel contends, stands in material contradiction to exhibits C” and “D”, his extra-judicial statement to the police, and exhibit “R”, the police investigation report tendered through PW6. Exhibit “R”, it is submitted, are summaries of the statements of Chekwube Aniakor and particularly Chimezie Okafor the prosecution deliberately refused to call as witnesses. The summaries of the extra judicial statements of this witnesses that were never called to testify, it is further submitted, violently contradict the oral evidence of PW2 and PW3. The respondent, in the light of the quality of the evidence it relied upon, it is argued, cannot be said to have discharged the burden the law places on it to obtain the concurrent findings of guilt of the appellant by the two Courts. The material contradictions between the oral evidence of PW2 and exhibit C, D, as well as between the oral evidence of PW2, PW3 and exhibit
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R render the evidence too incredible for any Court to rely upon to convict the appellant. Learned counsel relies on Ezemba V. lbeneme (2000) 10 NWLR (Pt 674) 61 at 63, Tangale Traditional Council V. Fawu (2001) 17 NWLR (Pt742) 293 at 330, Akalonu V. State (2000) 2 NWLR (Pt 643) 165 in urging that the incredible evidence on which the two Courts rely be expunged and their decisions set-aside.
Responding, learned counsel submits that the ingredients of the offence of murder for which the appellant is convicted have all been established by the prosecution beyond reasonable doubt. The evidence of PW2, it is contended, at pages 182-184 of the record of appeal, states it all. PW3 who was apprehended by the appellant and his co-accused on the day of the murder and equally witnessed the commission of the offence corroborated the testimony of PW2 at pages 205-207 of the record of appeal. PW5, the pathologist, at page 237 of the record confirmed the death of IFEANYI UDECHUKWU. Relying on Agbo V. The State (2006) 6 NWLR (Pt 977) 545 at 564, learned respondent’s counsel submits that the material contradictions the law envisages to render oral evidence
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of witnesses incredible do not arise in relation to the statements of PW2 and PW3.
Further relying on Uwagboe V. State (2007) 6 NWLR {Pt 1031) 606 at 620, learned respondent’s counsel submits that the appellant’s act of firing a gun at an unarmed person without provocation justifies the lower Court’s affirmation, at pages 411-412 of the record of appeal, of the trial Court’s finding that appellant had intended to cause the deceased the grievous bodily harm which eventually led to his death.
Further arguing the appeal, learned counsel emphasizes that with the failure of learned counsel to the appellant to raise the issue of inconsistency or contradiction in exhibits C and D vis-a-vis the oral evidence of PW2 at the trial Court, the lower Court’s unassailable finding that it was belated to raise it on appeal, be upheld. lf there is any such inconsistency, however, same not being material and fundamental, it is contended, is not fatal to the prosecution’s case. Certainly, it is submitted, exhibit R not being prepared by PW6 through whom it was tendered and the PW6 not being an eye witness, the report cannot be the basis of rejecting the evidence of PW2 and PW3.
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Citing in Ani Vs State (2003) 11 NWLR (Pt 830) 142, Ikwuepenikan V. State (2011) 1 NWLR (Pt 1229) Page 449 at 481, Ochiba Vs. State (2011) 17 NWLR (Pt 1277) at 659 696 and Garko Vs. State (2006) 6 NWLR (Pt977) 524, counsel urges that the issue be resolved against the appellant and his appeal dismissed.
Now, this appeal is about the inconsistency rule and how it impacts on the burden of proof in criminal proceedings. Our jurisprudence is replete with decisions on the principle. The inconsistency rule, in relation to the testimony of a witness, renders incredible and unreliable the oral evidence of a witness as well as his earlier statement the oral evidence materially contradicts. Thus in the instant case, if as asserted by the appellant, the oral evidence of PW2 and PW3 indeed materially contradict their extra judicial statements, their statements as well as their contradictory oral evidence, must necessarily be discountenanced. Being incredible and unreliable, the statements and the oral evidence will be incapable of sustaining the concurrent conviction of the appellant by the two lower Courts. See Tunde Asimi V. The State (2016) LPELR- 40436
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(SC), Friday Smart V. State (2016) LPELR-40827 (SC) and Akinlolu V. State (2015) LPELR-25985.
It is pertinent to stress that for the inconsistency rule to apply, PW2 and PW3, must be seen to have failed, on being confronted with their earlier contradictory statements in the course of their oral testimony, to explain away the inconsistencies which, again, must be fundamental. lt follows, therefore, that the rule will neither apply if they were not confronted with the earlier contradictory statements in the course of their oral testimony or, having been confronted, they had given sufficient reasons or explanations for the inconsistencies in the earlier statements and subsequent oral evidence. See Jizurumba V. State (1976) NSCC (Vol. 10) 156, Egboghonome V. State (1993) 9 SCNJ 1.
In the case at hand, the witnesses whose oral evidence the appellant asserts contradict their extra judicial statements were never confronted with the statements, in the course of their testimony, with the view to having them explain the inconsistencies between the two. Raising the matter in counsel’s address alone, I agree with learned respondent’s
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counsel, is insufficient. on the point in issue, the lower Court firstly held as follows:-
“It appears too late in the day for Mr. Moghalu now learned counsel to the appellant, to ventilate the question of any alleged inconsistency or contradiction in the extrajudicial statement, particularly, exhibit “D” vis-a-vis the evidence of PW2 at the trial. He cannot be permitted now, to do in this Court what neither he nor C.P Oguchienti Esq, failed to do at the trial Court. Therefore the submissions contained at paragraphs 5.02-5.04 of the appellant brief of argument which dealt extensively with alleged contradictions in exhibit “D” and the oral evidence of the PW2 are of no moment, as they go to no finding of the learned trial judge. They therefore pale into insignificance and are accordingly discountenanced by me, since they were not ventilated or raised by the appellant’s counsel in his written address at page 106-113 of the record of appeal, hence the learned trial judge made no findings thereon in his judgment.”
The Court enthused further thus:-
“Furthermore, neither HNC Moghalu Esq. for the 1st defendant at the trial nor C.P. Oguchienti Esq, for the
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2nd defendant/appellant, in their final written addresses at the trial Court, made any submission with respect to any inconsistency or contradiction in exhibits “C” and “D” vis-a-vis the oral evidence in Court by PW2. Hence, the learned trial judge had no obligation to make any findings on them.”
The foregoing affirmations of the trial Court’s findings by the lower Court are unassailable.
It is evident from the record of appeal that PW2 and PW3 were never confronted with the inconsistencies the appellant insists exist in their statements and oral evidence for their explanation. Most importantly, the record of appeal does not reveal any vital inconsistency between the statements of the witnesses and their oral evidence. Learned appellant counsel’s submissions that the inconsistency rule applies to render the evidence of PW2 and PW3 unreliable is accordingly misconceived.
Both sides agree, and rightly too, that to prove the offence of murder for which the appellant is convicted the prosecution must prove beyond reasonable doubt:-
(a) The death of the deceased.
(b) The act or omission of the accused which caused death and
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(c) That the act or omission was intentionally done with the knowledge that death or grievous bodily harm will ensue.
See Dare Jimoh V. The State (2014) LPELR-22464 (SC) and Ugochukwu V. State (2016) LPELR-40012 (SC).
PW2 and PW3 gave eye witnesses account of the act of the appellant, firing a gun shot at close range, which resulted in the death of the deceased. The testimony of PW5, the pathologist, proves the fact of the death of the deceased. The uncontroverted evidence of the three witnesses establish beyond reasonable doubt the ingredients of the offence for which appellant is convicted. The Courts below have not erred in their concurrent findings in this regard.
I remain equally unimpressed by learned appellant counsel’s argument that the respondent’s failure to call witnesses whose extra judicial statements as summarized in exhibit “R” favour the appellant is fatal to his conviction. The law is long settled that the prosecution is only required to call the number of witnesses necessary to prove its case beyond reasonable doubt. What is important is the degree of proof attained and not the number of the witnesses the prosecution called. A single credible witness, if believed,
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is enough to establish an accused person’s guilt. See Chukwu V. The State (1992) 1 NWLR (Pt 217) 255 at 263-264, Ijiofor V. The State (2006) 6 NSCQR (Pt 1) 209 at 237, Julius Bayode Ayeni V. The State (2016) LPELR-40105 (SC).
As a whole, I find no merit in this appeal. In dismissing same, the concurrent judgments of the two lower Courts the appellant failed to show are perverse or hereby affirmed.
SC.856/2014