The State Vs Godfrey Ajie-2000
LAWGLOBAL HUB Lead Judgment Report
ONU, J.S.C.
On 4th May, 2000, I summarily dismissed this appeal and reserved the reasons for my decision therefore to today. We did not feel obliged to call on the learned counsel for the respondent to reply.
I herein proffer my reasons briefly as follows –
At the conclusion of the prosecution’s case before the trial High Court against the respondent for murder punishable under section 319(1) of the Criminal Code, that court (per Olukole, J.) sitting at Omoku returned a verdict of guilty against the respondent and accordingly sentenced him to death by hanging on 18th October, 1991. The Court of Appeal, holden at Port-Harcourt (Coram: Katsina-Alu, Uwaifo, JCA as they were and Nsofor, JCA) to which the appellant’s appeal lay, after a dispassionate appraisal of the case reversed the trial court’s decision by holding, inter alia, as follows “it will be seen plainly that the cause of death is consistent with the version of the appellant. His case was that he was held by the deceased and Onyebuchi Okoro who was armed with a stick (sic) took aim at his head. He dodged and the deceased was hit on the left side of his head.
The deceased slumped and was taken to hospital. The medical evidence is that the deceased suffered a fractured skull. He did not suffer a broken neck which would have been consistent with the evidence called by the prosecution.
In conclusion, the failure of the learned trial judge to consider and examine the defence of the appellant led to a miscarriage of justice. Secondly, the prosecution failed to establish that it was the act of the appellant that caused the death of the deceased. It was unsafe to convict the appellant on the evidence available. The conviction cannot stand.” (Italics above is mine for emphasis).
Not satisfied with the decision of the court below, the prosecution have most unusually, appealed to this court on five grounds of appeal against the accused/respondent’s acquittal. The appellant has submitted four issues for our determination, while the respondent for his part, even though equally proffering four issues, has ultimately condensed them into two as arising for consideration. I am of the view that the two respondent’s issues are enough to dispose of the appeal. The two issues ask:-
“a. Was the court below right in making use of the contents of Exhibit “E” in arriving at the decision it handed down in the appeal before it (Ground 4 of the Ground of Appeal).
b. If Exhibit ‘E’ was properly admitted, in evidence was the court below justified in their decision that the trial court did not arrive at a fair decision on the case before it as presented by the prosecution and the defence (Grounds 1,2,3 and 5).”
Issue No. ‘A’
I will first of all consider Issue No. A. which questions whether the court below was right to use Exhibit ‘E’ in arriving at its decision. In answer thereto, it is pertinent to stress that Exhibit ‘E’ is the medical report obtained by the police in the course of their investigation into the death of the deceased, Barrister Okpara (Barrister was his first name and does not indicate his profession). One Dr. Chinwa of the University of Port- Harcourt Teaching Hospital (UPTH), a medical doctor, performed a post-mortem examination on the body of the deceased. The identification of the deceased’s body was made by his brother called Christian Okpara, who testified as PW. 5 through whom the prosecution sought to tender this report but was objected to by the defence. The learned trial judge gave a considered ruling and admitted the report as Exhibit ‘E” through the 6th P.W. to whom Dr. Chinwa had handed it before he travelled overseas. The learned judge’s ruling was further explained in his judgment by stating that what the 6th P.W. did was to comply with section 42(1) of the Evidence Act, Cap. 112 Laws of the Federation of Nigeria 1990. A medical officer in the service of a state for purposes of undertaking a post-mortem examination is a pathologist and his report is a certificate as envisaged in section 42(1) (a) of the Evidence Act (ibid). The certificate when tendered and admitted in evidence is regarded as sufficient evidence of the facts stated therein.
The learned trial Judge’s ruling, as later explained in his judgment, cannot in my view, be faulted. The situation is very similar to what happened in the case of endered where the doctor who authored it was out of the country. As in the analogous case of Ehot v. The State (1993) 4 NWLR (Pt. 290) 644 at page 657G to page 658B wherein it was held as perfectly permissible for such a report to be tupra), the defence in the instant case never requested for Dr. Chinwa to present himself for cross-examination. The trial court was therefore bound to accept Dr. Chinwa’s certificate as sufficient evidence of the facts therein stated. Afortiori, the court below was justified in confirming that ruling. For come to think of it, the issue in the court below was whether Exhibit ‘E’ and the evidence of PW4, Dr. M. Gogo Abiti, of University of Port-Harcourt Teaching Hospital, Port-Harcourt are legally admissible ..
For the purpose of this judgment nothing further will be said about the evidence of D.W. 4 as there has been no complaint about it. Our query therefore relates only to the admissibility of Exhibit ‘E’ and whether the court below came to any decision on it. I am satisfied that the court did satisfy itself that Exhibit ‘E’ was admissible before making use of it in arriving at its decision notwithstanding the fact that it was not stated categorically that its’ admissibility was being decided upon. In the course of the leading judgment (Per Katsina Alu, JCA as he then was) the court below stated, inter alia thus:
“Exhibit ‘E’ is a medical report. It was issued by Dr. Chinwa who performed the post-mortem examination on the body of the deceased. Exhibit ‘E’ was received in evidence through P.W. 6 Inspector Bamidele Araba. Dr. Chinwa was out of the country at the time of the proceedings …”
I am of the firm view that based on the above statement that sufficient reasons had been given in the judgment for the admissibility of Exhibit ‘E’. I also hold that the omission of a statement such as:
“for these reasons we hold that Exhibit ‘E’ is admissible in evidence.”
is not enough to warrant the conclusion that the issue as to admissibility of Exhibit ‘E’ Was raised but not decided. Assuming but not conceding, that I am wrong in the view I have taken, I must ask myself whether the absence of words indicating a definite statement that the court below came to a decision on the issue of admissibility of Exhibit ‘E’ led to a miscarriage of justice in this case. The general rule is that a court has a duty to pronounce on all material issues raised before it. See. Olowolagba & Ors. v. Bakare & Ors. (1998)3 NWLR (Pt. 543) 528 at page 534; and Ukpai v. Okoro (1983) 2 SCNLR 380. But the result of a court of appeal not complying with the general rule depends on the facts and circumstances of each case. See. Onifade v. Olayiwola (1990) 7 NWLR (Pt. 161) 130 at page 165 G-H. The question to ask is the nature of the act oromission about which a complaint had been laid. In this case the complaint is that the court below cannot be said to have considered and given a decision on the question whether or not the trial court should have admitted Exhibit ‘E’. In order to answer that question I humbly refer to two well established rules for dealing with the question.
The first rule may be stated as follows:-
“Where an appellate court is satisfied that the court of trial has been guilty of improper use of its powers in the performance of its adjudicative functions, it must go further and ask itself whether the error was such that it could be corrected from the evidence in cold print without injustice to either side. If it is, then the appellate court can correct the error, but if it is not, it must order a retrial.”
Per Nnaemeka-Agu, JSC in Sanusi v. Ameyogun (1992) 4 NWLR (Pt. 237) 527 at p. 549 F-O. G.
The second rule defines the position in relation to substantive or procedural defects in the course of a trial. Karibi- Whyte, JSC put it this way in Ejelikwu v. The State (1993) 7 NWLR (Pt. 307) 554 at p. 583. D
” … I venture to suggest that for a condition to nullify judicial proceeding it must be a substantive provision which affects the jurisdiction or competence of the court, or a procedural defect in the proceedings which would result in a miscarriage of justice …”
See also Onifade v. Olayiwola (supra) per Agbaje, JSC, at p. 168 D-E. Appellant must establish any prejudice to him for failure by the court below to give a decision on admissibility vel non of Exhibit ‘E’ , bearing in mind the highly probative value of that Exhibit. I am therefore of the firm view that the record of appeal contains all the pieces of evidence needed to determine whether Exhibit ‘E’ is admissible and therefore properly admitted in evidence.
It is common ground that Exhibit ‘E’ was tendered by the appellant (prosecution). It is also clear from the records that the appellant (prosecution) never cross-appealed on it’s (Exhibit E’s) admissibility in the court below. As I earlier pointed out on the position in relation to substantive or procedural defects in the course of the trial, any attack based on alleged lack of consideration of the issue relating to Exhibit ‘E’ must show that the lack of consideration led to a miscarriage of justice. Miscarriage of justice has been variously defined in the case of Total (Nigeria) Limited & Anor. v. Wilfed Nwako & Anor. (1978) 5 S.C. 1 at p. 14 where this court adopted its definition as:
” …Such a departure from the rules which permeate all judicial procedure as to make what happened not in the proper sense of the word judicial procedure at all”, vide Devi v. Roy (1946) A.C. 508 at 521. See also Nnajifor v. Ukonu (1986) 4 NWLR (Pt. 36) 505 at pages 516-517 – where the above definition was approved.
What will constitute a miscarriage of justice may vary, not only in relation to particular facts, but also with regard to the jurisdiction which has been invoked by the proceedings in question, and to reach the conclusion that a miscarriage of justice has taken place does not require a finding that a different result necessarily would have been reached in the proceedings said to be affected by the miscarriage. See: Adigun v. A.G. of Oyo State (1987) 1NWLR (Pt. 53) 678. It is enough if what is done is not justice according to law. See: Okonkwo v. Udo (1997) 9 NWLR (Pt. 519) 16 at page 20.
However, where a trial court or the court below fails to advert its mind and treat all issues in controversy fully and there is sufficient material before the appellate court for the resolution of the matter, an order of retrial will not be made. See Okeowo v. Migliore & Ors. (1979) ANLR 280, at page 381 and Awote v. Owodunni (No. 2) (1987) 2 NWLR (Pt. 57) 366 at 369 E-F. The court itself will resolve the issue.
The issue is accordingly answered in the affirmative.
Issue No. B:
The question posed in this issue is, whether the court below was justified in its decision on the case before it as presented by the prosecution and defence. It is my desire to consider this issue on two planks. The first plank which is conterminous with the appellant’s 3rd issue and whose grouse is as to whether the court below came to the proper conclusion when it held that the trial court considered only the case for the prosecution without considering the defence before convicting the respondent. In other words, did the court below properly evaluate and assess the evidence of the prosecution and defence and make proper findings thereon
Did the trial court at that point in time, namely, at that early stage of the case accept that:-
” … the death of the deceased was caused by the blow inflicted on him on 30/1/88 …”
Or that:-
” … The only point of dispute is whether the death was caused by the voluntary act of the accused person in this case and that to me is the only point for determination which I shall proceed straight to find out from the evidence the admissible evidence before me …”
It is my firm view that in the determination of the issue, the trial court failed to draw the proper conclusions and inferences from the evidence before it and the court below so found.
Appellate courts ought not to interfere with findings of fact of trial courts which had the unique opportunity of seeing and hearing the witnesses give evidence and observing their demeanour in the witness box. There are, however, a number of exceptions to this rule, a major exception being that where such findings are in fact inferences from findings properly made, the Court of Appeal is in as good a position as the trial court to come to a decision. See: Chief Frank Ebba v. Chief Warri Ogodo (1984) 1 SCNLR 372; (1984) 4 S.C. 84 at pages 98-100; Fabunmi v. Agbe (1985) 1NWLR (Pt. 2) 299 at 314; Fatoyinbo v. Williams (1956) SCNLR 274; (1955) 1 F.S.c. 87 and Ukatta v. Ndinaeze (1997) 4 NWLR (Pt. 499) 251 at page 263.
An appellate court will also interfere with findings of fact where such findings are perverse. A decision is said to be perverse:
(a) When it runs counter to the evidence; or
(b) Where it has been shown that the trial court took into account matters which it ought not to have taken into account or shuts its eyes to the obvious; or
(c) When it has occasioned a miscarriage of justice:
See: Missr v. Ibrahim (1975) 5 S.c. 55; Incar Ltd. v. Adegboye (1985) 2 NWLR (Pt.8) 453 and Ramonu Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360; (1985) 4 S.C. (Pt. 1) 250 at 282.
In the instant case, I take the firm view that the court below was justified in interfering with the findings of fact of the learned trial judge which was herein demonstrated, were in fact perverse. While the evidence of PW1, PW2 and PW3 was categorical that the respondent hit the deceased at the back of the neck, Exhibit ‘E’ is positive that the cause of death was due to “extensive skull fracture with severe heamorrhage” which occurred on the left side of the head. From the evidence the finding of the learned trial Judge:-
“that during the fight the accused took the plank Exhibit ‘C’ pursued late Barrister Okpara and hit him with the plank on the upper part of his neck particularly at the left hand side of his head” cannot be supported.”
The contradictions, which bring out the conflict between the assertions of the prosecution witnesses and Exhibit ‘E’ as to the cause of death were too serious to be ignored that the doubt thus created, I must say, should be resolved in favour of the accused (respondent herein). See: Namsoh v. The State (1993) 5 NWLR (pt. 292) 129 at page 145 E-F and page 146 paragraphs A-B; Kalu v. The State (1988) 4 NWLR (Pt. 90) 503 at page 510 ‘F’ at page513 A-D; Ogoala v. The State (1991) 2 NWLR (Pt. 175) 509 at page 526 G-H; State v. Danjuma (1997) 5 NWLR (Pt. 506) 512 at 528 H-529D; and Chukwu v. The State (1996) 7 NWLR (pt. 463) 686 at 697 – 698 C and 701 G-H.
The learned trial judge having failed to properly evaluate the evidence before him the lower court was duty bound to intervene and evaluate same for reasons earlier given. Besides, I am to stress that resort to the phrase “I believe” or “I find as a fact”
when used by a trial Judge is not final and conclusive. They must be backed by substance which led to the conclusion. Indeed, there must be a reason for believing one witness and disbelieving the other. See: Board of Customs & Excise v. Ibrahim Barau (1982) 10 S.C. 48 at 137. The learned counsel for appellant’s assertions by the use of epithets such as no “attempt whatsoever to assemble, collate, assess, discuss, evaluate and or review the respective versions of the evidence led by the prosecution and the defence …” and “jumped the gun into rejecting and reversing … findings of fact made by the trial Judge” are untenable and lacked force and reasoning.
The lower court evaluated the evidence and found that it did not support the finding by the learned trial Judge. I hold that the justices of the lower court were justified in reversing his decision for reasons I had herein-before given. Onyebuchi Okoro – a material witness was not called.
Coming to the second plank of Issue B, the question posed is as to whether there was adequate and proper investigation of the allegation that Onyebuchi Okoro was responsible for the death of the deceased and therefore a material and essential witness who ought to have been called by the prosecution.
It is trite that the prosecution has a duty to place before the court all available relevant evidence. This does not mean that a whole host of witness must be called upon the same point, but what it does mean is that if there is a vital point in issue there is one witness who will settle it one way or the other, that witness ought to be called. Opayemi v. The State (1985) 2 NWLR (Pt. 5) 101 at 108H-109E; Ogoala v. The State (1991) 2 NWLR (Pt. 175) 509e. In criminal cases the burden of proving the charge lies on the prosecution while the standard of proof is proof beyond reasonable doubt. See: Asariyu v. The State (1987) 4 NWLR (Pt. 67) 709; Paul Ameh v.The State (1978) 6/7 S. C. 27 at 35; and Philip Omogodo v. The State (1981) 5 S.C. 5 at 21.
Where therefore a person accused of murder raises the defence that it was somebody else who killed the deceased, it is part of the onus on the prosecution to prove its case beyond reasonable doubt to disprove that assertion and defence. It is incumbent on the prosecution to rebut the allegation by evidence. See: Obri v. The State (1997) 7 NWLR (Pt. 513) 352; Opayemi v. The State (supra) and Ozaki v. The State (1990) 1 NWLR (pt. i24) 92120 D-E and 125 D-E in relation to the defence of alibi.
The need to call witnesses at all arises from the duty the law imposed on the prosecution to prove the essential ingredients of the crime. In a case of murder such as the one in hand, the contentious issue is not usually that the deceased is dead but as to who killed him. A lone witness, if believed can establish this issue. An appellate court will only intervene where an essential witness has not been called.
See: Ali v. The State (1988) 1 NWLR (Pt. 68) 1 pages 17G-18C. The contention of the appellant’s counsel on the failure of the prosecution to call Onyebuchi Okoro is misconceived. It is not the case of failing to call a witness but failing to call a material and essential witness whom the accused (respondent) alleges has committed the offence – a witness who when the police arrested and confronted him, gave conflicting accounts of his whereabouts vide Exhibits ‘D’ and ‘F’. No reason was given by the prosecution for the police failure to continue this line of investigation.
See: Theophilus v. The State (1996) 1NWLR (Pt. 423) 139 at page 151 C-D. The evidence on oath by Onyebuchi Okoro could surely have helped to resolve the issue as to how the deceased’s skull came to be broken. He was therefore, in my view, a material witness. See Akpan v. The State (1991) 3 NWLR (Pt. 182) 646 at page 659 E-F, and Ali v. The State (supra). It is a settled principle of law that if the accused feels a witness is material he should call him. See: Ohunyon v. The State (1996) 3 NWLR (Pt. 436) 264.
In the instant case, the witness (Onyebuchi Okoro) will definitely not give evidence favourable to the respondent; thus the issue of a hostile witness would arise. I agree with the respondent that the witness ought to have been called if not for anything but for the purposes of being tendered for cross-examination by the accused as rightly found by the court below. See: Rex v. Thompson Udo Essien (1938) 4 WACA 112.
The police were similarly inclined and that accounts for Okoro being arrested twice wherein he gave two stories of his whereabouts when the incident occurred. As earlier pointed out, since Onyebuchi Okoro’s conflicting statements were inconclusive, it was incumbent on the police to have ensured that they filled in the gaps or if they believed they had enough “eye-witnesses” to produce Onyebuchi Okoro for the respondent Akpan v. The State (supra) at page 659. The case of Idowu v. The State (1998) 13NWLR (pt. 582) 391 upon which theondent to cross-examine him. See: appellant strongly relied is with due respect, inapplicable to the peculiar facts of this case. The witnesses that were not called in Idowu’ s case (supra) were neither eye-witnesses nor witnesses when the respondent allegedly committed the offence. In the instant case, there was a conflict between the evidence of PW1, PW2 and PW3, the so called eye-witnesses. This fact was absent in the Ohunyoh ‘s case (supra), in which the trial court found that the prosecution’s evidence was direct and supported by medical evidence. Furthermore, the investigating police officer in Ohunyon’s case testified that from his investigation the culprit had no link with the death of the deceased. Contrast this with the present case where the police arrested Onyebuchi Okoro, took two statements from him, which were conflicting and did not exculpate the said Onyebuchi Okoro. Two other persons, Kenneth Banigo and DW3, according to the police (PW4) said Onyebuchi Okoro was the culprit. DW2 confirmed that Onyebuchi Okoro made two statements which were conflicting and did not exculpate the said Onyebuchi Okoro. DW2 also confirmed that Onyebuchi Okoro was in Okposi on the date of the incident and that the earlier reported him to the police. From the totality of the evidence it is palpable that the prosecution withheld a material and essential witness who would have weakened its case at the trial. The court below rightly so held and I see no reason to interfere there with.
It was for these reasons for judgment that I too dismissed this appeal and affirmed the judgment of the court below on the 4th day of May, 2000.
SC.71/1999