Osita Emordi V. The State (2000)
LawGlobal-Hub Lead Judgment Report
IKONGBEH, J.C.A.
The appellant and his younger brother and younger sister were tried before the Imo State High Court sitting at Owerri for murder. The two brothers and their sister were alleged to have murdered one Nicholas Ojunkwu. The prosecution called 7 witnesses. Only PW1 and PW2 were eye witnesses. The defence called three.
The case for the prosecution, as put forward by PW1 and PW2, was as follows: On the fateful day PW1, a boy of 10, went out into the street with his ball to play. As he bounced his ball around, waiting for his playmates to show up, the 2nd accused came along and took the ball from him. He pleaded repeatedly but unsuccessfully to have his ball back. Instead of letting him have it back, the 2nd accused cut it up with a knife he had. To add insult to injury, the 2nd accused slapped him and brought him down with a kick to the legs. He pressed him to the ground and threatened to cut him with the knife. This made the boy to cry out in alarm. This in turn drew the attention of the boy’s elder brother, the deceased, and his sister, PW2, who both ran to the rescue. The deceased got to the scene first. He was trying to pry his brother out of the assailant’s grip when the latter stabbed him on the right shoulder and took off in flight for home. The deceased and his sister PW2 gave chase. The 2nd accused ran upstairs followed by the deceased. At this point, the 2nd accused came out of their room and got hold of the deceased. Almost immediately, the appellant, who was the 1st accused at the trial came out and stabbed the deceased in the chest, leaving the knife buried there. He and his sister, the 3rd accused, then ran back into their room. As the deceased tried to talk in reply to his sister, PW2, blood gushed out of his mouth and nose. He died on the way to the hospital.
The story as told by the appellant in the court below was this; his attention was drawn by a commotion outside. He came out of his bedroom where he had been reading to discover that it was his younger brother, the 2nd accused, who was fighting a small boy (PW1). He made peace between them and went back to his reading.
Shortly afterwards, the 2nd accused rushed into the room, slamming the door behind him. Almost immediately, the door crashed open and the deceased charged in, demanding the whereabouts of the 2nd accused who had taken refuge in another room. As the deceased did not get the answer to his inquiry he set upon the appellant and a fight ensued between the duo. The appellant managed to push his adversary, and the fight, out into the sitting room. The deceased’s younger sister, PW2, was in the sitting room. The deceased called on her to fetch the knife he had in his pocket for him. She did and he tried to stab the appellant with it but was blocked by the latter. In the fight and the struggle for possession of the knife, they fell and rolled a number of times. At one point, the deceased stopped fighting and the appellant saw blood coming out of a wound on the right side of his chest where he also saw the knife sticking out. The deceased pulled out the knife and ran out of the room. PW2 picked the knife and ran after him. He followed them downstairs where he saw the deceased still bleeding. On the advice of those who had gathered, he went and reported the incident to the police.
In his judgment delivered on 7/10/98, the learned trial Judge (E.O. Metu, J.) discharged and acquitted the 2nd and 3rd accused persons. He however convicted the 1st and sentenced him to death.
Aggrieved by his conviction and sentence, he appealed to this court on four original grounds. With leave of the court, five additional grounds were filed. Mr. C.A.C. Anyanwu, who prepared the appellant’s brief of argument formulated six issues for determination:
“A. Whether there was a fight between the deceased and the appellant before this unfortunate incident.
B. Whether the deceased chased the 2nd accused (Ikechukwu Emordi) into the appellant’s room.
C. Whether the learned Judge properly evaluated the evidence of the parties before coming to the conclusion that the appellant murdered the deceased.
D. Whether the appellant raised the defence of self-defence and or provocation at the trial.
E. Whether the P.W.6 (Dr. Idoko) is qualified as a pathologist to give evidence of cause of death of the deceased.
F. Whether Exhibit ‘8’ is the knife which featured between the appellant and the deceased.”
Mrs. C. C. Dimkpa, Principal Legal Officer, Imo State, filed a respondent’s brief in which she formulated three issues:
“(1) Whether the learned trial Judge was right by relying on the kitchen knife Exhibit ‘B’ as instrument of murder for conviction.
(2) Whether the learned trial Judge was right in convicting the appellant in the light of the evidence adduced at the trial.
(3) Whether the learned trial Judge was right by relying on the evidence of a general medical practitioner for conviction.
I shall take issues, A, B and C in the appellant’s brief together with issue (2) in the respondent’s brief.
The gist of the complaints of counsel for the appellant on these issues is that the learned trial Judge paid undue attention to irrelevant pieces of evidence and almost completely ignored the relevant ones. The result was that he came to the erroneous conclusion that the appellant caused the death of the deceased and that he did so in circumstances that amounted to murder.
The first complaint then was against the learned Judge’s refusal to accept the defence that the injury that the deceased sustained had resulted not from the appellant’s deliberate act but from an incidental fall on the knife during the struggle between the appellant and the deceased. He drew attention to pieces of evidence, even from prosecution witness, that the deceased sustained the injury in the appellant’s sitting room as claimed by him and not on the landing outside as claimed by PW1 and PW2. He drew attention also to findings and observations by the Judge that further detracted from the value of the evidence of PW1 and PW2.
All that the learned Principal Legal Officer has done in answer to the complaints of the appellant is to re-emphasize the evidence of PW1 and PW2.
Now, I have myself read the record of proceedings. I see much justification in the appellant’s complaints here. Had the learned Judge been more critical of the evidence before him, I have no doubt in my mind that he would have been less certain in his conclusion that the appellant caused the death of the deceased in circumstances amounting to murder. In the first place, he paid far too much attention to irrelevant matters and not enough to the relevant ones. For instance, he gave far more consideration to the question of where the stabbing took place that it required. Conversely, he did not give enough attention to the question as to who did the stabbing and in what circumstances. The primary question that should have engaged the attention of the Judge is “Did the appellant stab the deceased as claimed by PW1 and PW2, or did the deceased fall on the knife as claimed by the appellant”. He should have also inquired into whether it was the appellant who brought the knife used as “alleged by PW1 and PW2 or the deceased’s sister, PW2 fetched it from the deceased’s pocket for that latter and at the latter’s request as claimed by the appellant. Where in the universe the appellant and the deceased were when the knife took the fatal plunge into the chest of the deceased would not matter a fig if the evidence did not show clearly that it had been guided by the deliberate or reckless hand of the appellant.
Now, at p.110 of the record, the learned Judge correctly observed that:-
The question is: Has the prosecution proved that the 1st accused killed the deceased? Was the killing unlawful? Has the prosecution adduced cogent evidence linking the accused with the death of the deceased, by showing either a positive act or negative omission of the accused causing injury to the deceased which in turn resulted directly in the deceased’s death?”
Unfortunately, however, instead of pursuing this line of inquiry, he immediately veered off into an irrelevant area. After asking the questions just set out he continued:
“I have given the 1st accused’s side of the story in this judgment. PW1 and PW2 were eye witnesses. DW1 and DW3 were also according to them eyewitnesses or a least they claimed to be.
The 1st accused and the DW1 i.e. 3rd accused testified to the effect that the deceased got as far as their bedroom, PW1 and PW2 in their own testimony maintained that the deceased did not go beyond the 1st landing of the staircase of the accused person’s house. I am of the view that it is proper to determine where the knife was used.”
(All emphasis supplied).
This passage shows clearly that, without at all assessing the evidence on the point, the Judge came to the vital conclusion that the knife was in fact used. This, with the utmost respect to the Judge, was a serious mistake. If indeed, as the appellant claimed, the deceased fell on the knife while he and the appellant fought and struggled for possession of it, then there cannot properly be any talk of its having been used. To use something is employ that thing for a purpose, or to bring it into service. See Oxford Advanced Learner’s Dictionary. The expression “employ something for a purpose” and “bring something into service” all imply a conscious deliberation on the part of the person so employing the thing or bringing it into service.
From this analysis, it can be seen that the first task of the learned Judge should have been to find out whether in fact the appellant used the knife. Instead, he exhausted all of four foolscap papers and more (pages 110 – 114) to investigate where the deceased was on the premises at the time he received the injury. He arrived at the conclusion that the knife was used on the landing rather than in the appellant’s sitting room not by any positive evidence other than the testimony in court of PW1 and PW2. What he did was to put the evidence of DW1 and DW3 under a microscope looking for discrepancies that would demolish their story. At the same time, he glossed over the evidence of PW1 and PW2 seeing only such points as tended to prop up his conclusion.
This can be clearly seen at pages 111 – 113.
‘The 1st accused said the knife was used in their parlour where he stated he succeeded to push the deceased to from their bedroom. He denied using it. The DW3 in her own testimony under cross-examination said she did not see the 1st accused push the deceased from the 1st accused’s bedroom. It is important to note that this witness on two occasions during her testimony said to a question under cross-examination.
‘You did not witness the incident to which you testified’
Answer: ‘I witnessed the incident I was there when it all happened.’
If that was the true position, I am of the view that she contradicted the 1st accused in a material particular.It is settled that two pieces of evidence contradict one another when they are by themselves inconsistent. See Gabriel v. State (supra) (1989) 5 NWLR (Pt.122) 457.
Again she was asked, Question: Before this incident you were not known to any of the accused persons. ANSWER: I knew them before the incident. DW3 was again asked by the learned prosecuting counsel, L. C. Azuama Esq. why 1st and 2nd accused did not mention her name in their various statements to the Police. She answered:
“I was there when it all happened.”
The DW3 and the 3rd accused said in their testimonies that while the fight was going on in the 1st accused’s parlour, the deceased requested his younger sister Ginikachi Ojunkwu to give him the knife he the deceased had in his pocket. I have indicated this piece of evidence earlier in this judgment. I am now using it together with the others as to where the knife was used to evaluate the evidence of the 1st accused vice-versa those of DW1, DW3, PW1, PW2.
DW3 1st accused and DW1 i.e 3rd accused said in their testimonies in court that the deceased requested the PW2 to him the knife he the deceased had in his pocket. That PW2 did so but they did not know when and how the knife struck the deceased on the right chest. The 1st accused did not only contradict DW3 and DW1 on this point rather he also contradicted his written statements Exhibits “D” and “G” he said:
“As I was still inside our house Nicholas Ojunkwu forced our door open and chased my junior brother inside our bedroom. I held him and asked him ‘na wetin’ he then started to beat me. And I started to fight him. As we were fighting he drew a small knife stabbled me on my mouth. I then held his knife and we started to drag the knife and the knife stabbled him on his chest and he ran out off our house’.
This evidence contradicted the evidence of DW1 i.e. 3rd accused. DW3 before the court and that of 1st accused himself. It is important to note that in the two statements made by the 1st accused there is no mention of a right in the parlour. It is settled that when a witness is shown to have made a previous statement inconsistent with the evidence given at the trial the court has been slow to act on the evidence of such a witness. In Regina v. Golder (1960) 1 WLR 1169 at 1172 LORD PARKER C.J. delivering the judgment of the court on this point stated as follows:
”In the judgment of this court, when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the Jury should not merely be directed that the evidence given at the trial should he regarded as unreliable; they should also be directed that the previous statements whether sworn or unsworn, do not constitute evidence upon which they can act.”
See also the case of Joshua v. The Queen (1964) 1 All NLR 1 at 3 – 4. Since I am sitting as a Judge and Jury I have so directed myself.
PW1 and PW2 gave evidence to the effect that the deceased never got beyond the 1st landing of the staircase to the accused person’s flat. In their written statements to the police, PW1 and ID.3 which eventually was not tendered by the prosecution. Consequently this court has no need to make use of it. It is not evidence before me. See Bello v. Ringim (1991) 7 NWLR (Pt.206) 668,678. PW2 made Exhibit ”A”, both in her oral testimony at the trial and in Exhibit “A” she was consistent that the knife was used at the landing. The oral evidence of PW1 at the trial on the issue was not contradicted. Both PW1 and PW2 maintained that the stabbing took place at the 1st landing of the staircase of the accused person’s flat. The defence said it was at the parlour that blood came out during a struggle over the possession of the knife.
It is significant to note that PW3, Sergeant Donatus Akpa, No.1 06192, in his evidence-in-chief on 9/7/94 said:
”When I got to their house, I did not see the 1st and 2nd accused persons. I only saw the 3rd accused and I arrested her. I saw blood around the landing in front of their room upstairs. The accused persons live on the first floor of the house.”
Under cross-examination, this witness was asked that he recovered a blood stained cloth from the house of the accused and he replied thus:
”I did not. It is not true.”
It was again suggested to him that there were blood stains inside the house of the accused persons. He answered thus:
”I did not observe any blood stain in the house of the accused persons.”
The PW5 corroborated this evidence. From the above analysis of the evidence as to where the stabbing took place, I am of the view that, and I find as a fact that the stabbing took place at the 1st landing of the staircase in the accused person’s house and not at their parlour.”
As can be seen, the learned Judge has made much heavy weather of DW3’s testimony in cross-examination that she did not see the appellant push the deceased from the bedroom into the parlour. With respect, I think the Judge viewed this answer completely out of con. The witness made it absolutely clear that she came into the picture after whatever pushing from the bedroom to the parlour that took place had taken place. The relevant portion of her evidence-in-chief reads:
“I witnessed the event between the accused persons and one Nicholas Ojunkwu… That day, I went to the house of accused persons to give their sister, Fidelia Emordi the cloth I wanted her to assist me to make. When I got there, Fidelia was not in, I then stayed on the balcony and went through the pages of the catalogue she left there. While I was there I heard a noise at their parlour. At first, I thought it was children making noise but when it became louder I went into the parlour to find out what was the matter. When I got there, I saw the 1st accused and the deceased at grips with each other. They were fighting. The fight was going on in the parlour”.
The italicised words make it clear that it was the commotion from the parlour that drew her attention to the incident and took her to the venue of it. If she testified that she did not see any event that happened before she got to the scene she spoke the gospel truth and she could not be said to have contradicted any person there before she came who said the event which she did not see, happened. The Judge also made heavy weather of DW3’s answer that she witnessed the incident because “I was there when it all happened.” I fail to see how this could be ground for finding a contradiction. All that she said was that from the time she arrived on the scene she witnessed all that happened. It would be most unreasonable to interpret her statement, as the learned Judge appears to have done, to mean that she witnessed everything that happened that day, including those that had happened before she came on the scene!
As against this unfair treatment of the evidence of DW1 and DW3, the Judge found corroboration for the evidence of PW1 and PW2 from the most impossible places. Evidently, forgetting that he had earlier at p.105 declared these two witnesses tainted witnesses who had their own purpose to serve and had warned himself not to rely on their testimony without corroboration the Judge easily found corroboration for the testimony of one in the evidence of the other and vice versa. See p.115, 11.1-3.
It is trite law that evidence of a witness that requires corroboration cannot provide corroboration for the evidence of another that also requires it. To say it can will be like trying to convince this court that one can add zero to zero and come up with something more than zero.
Had the Judge given the evidence before him a dispassionate appraisal that it was his law-imposed duty to give, he would have seen that apart from not having the requisite corroboration the evidence of PW1 and PW2 was seriously punctured by evidence supplied by other prosecution witnesses. On the venue of the sustenance of injury by the deceased, with which the Judge appeared obsessed, PW5 testified that he investigated the appellant’s allegation that the deceased did in fact come as far as into their room and found it true. See the Q & A session between defence counsel and him at p.27.
“Q. In your finding during investigation, you found out that the deceased chased the 2nd accused person into their room.
Ans. When the 2nd accused was alleged to have stabbed the deceased, he the deceased chased him into the room. This was what made me visit the house twice. It was alleged that the deceased pursued the 2nd accused to the room when he was stabbed by the 1st accused.”
On whether or not there had been a struggle between the appellant and the deceased the following Q & A session between defence counsel and PW3 was recorded:
“Q. Did you record that Nicholas chased Ikechukwu into Ikechukwu’s house?
Ans. I said so
Q. Did you also record that Osita Emordi had a struggle with Nicholas?
Witness wants to refresh his memoranda the report is given to him.
Ans I recorded so.
Q. Who gave you the information on which you based all that you have recorded?
Ans. Got the information from PW1 and PW2.”
At the very earliest opportunity, when the matter was still fresh in their minds, PW1 and PW2 told PW3 that there had indeed been a struggle between the appellant and the deceased as alleged by the appellant. The prosecution never made any effort to explain away the discrepancy between what these witnesses told PW3 and what they said in court and what PW5 said he found following his investigation. Yet the learned trial Judge was, as has been seen, able to declare at p.115 in regard to the appellant’s struggle over possession of the knife off and on the ground:
“Without hesitation I make bold to say that I find as a fact that no such thing happened. It has already been shown that if the struggle took place in the parlor the blood which the 1st accused admitted was spotting (read spurting?) out of the deceased’s right chest would have been all over the parlour. Instead blood was found around the 1st landing in front of the accused’s flat. (Brackets and content mine).
Some unfairness to the appellant can be seen again here. In the first place, the appellant never said that blood was spurting out of the deceased. His evidence, at p.47, was that he saw blood.
“coming out of his body at the right side of the chest. The knife was stuck into his body he pulled it out of his body and ran away.”
There is, with due respect, a world of difference between blood coming out of a wound and blood spurting out of it. To spurt, especially of liquids, is to come out in a sudden burst, or to push. There is a suggestion in this definition of the thing said to spurting being pushed out under some high pressure. To say that blood came out does not necessarily mean that it spurted. It can also mean that it merely oozed. Spurting blood is more likely to be all over the surrounding area than oozing blood. Because the Judge wanted some facts to back his argument that because no blood was found in the parlour blood could not have been shed there he put words in the appellant’s mouth that would make his claim illogical.
Again the fact that blood was seen outside the room did not necessarily mean that the injury could not have been sustained inside the room. After all, the appellant himself testified that shortly after the deceased sustained the injury he ran out to where the appellant later found him.
The “most unkindest out of all” was the learned Judge’s conclusion on p.117 that the fatal wound on the deceased had been inflicted by the appellant. As usual, it was the ubiquitous PW1 and PW2 that did it. What I have already said about their evidence should suffice to show the unfairness of this finding.
Viewed dispassionately, the evidence before the lower court could not support the conviction of the appellant. There was his claim that there was a struggle between the deceased and him for possession of the knife; that in the course of the struggle, the knife pierced the deceased in the chest. There was no other evidence to contradict this other than the evidence of PW1 and PW2. I have shown that these witnesses themselves had earlier confirmed that the deceased did chase the appellant’s brother into the latter’s room and PW3 confirmed that there has indeed been a struggle between the appellant and the deceased. The appellant may have told the truth when he said that the knife pierced the deceased accidentally during the struggle. He also may have lied about it. He may have deliberately stabbed the deceased. All these were likely possibilities. It is trite, however, that a conviction, especially in capital offences, cannot be had on likely possibilities. The prosecution is always obliged to eliminate all other likely possibilities, leaving only the probability that the accused person did in fact commit the offence charged.
The learned Judge observed that “to establish that the accused killed the deceased the prosecution must adduce cogent evidence linking the accused with the death of the deceased by showing either a positive act or negative omission of the accused causing injury to the deceased, which in turn resulted directly in the deceased’s death.” No such cogent evidence was adduced before the learned trial Judge.
For the reasons I have given, I resolve the issues under consideration in favour of the appellant. The evidence before the learned Judge did not justify the conviction of the appellant for any offence, least of all murder. In view of my decision on these issues I see no point in considering the remaining issues. They are all supposed to lead up to a finding whether or not the appellant was properly convicted of murder.
On the whole, the appeal succeeds and is accordingly allowed. The conviction and sentence of the appellant are set aside. In their place, I enter a verdict of not guilty and accordingly discharge and acquit the appellant.
Other Citations: (2000)LCN/0742(CA)