Uche Williams V. The State (1992) LLJR-SC

Uche Williams V. The State (1992)

LawGlobal-Hub Lead Judgment Report

I. L. KUTIGI, J.S.C

The appellant was charged with the murder of one Blessing Ngozi Boms contrary to Section 319 of the Criminal Code applicable in Rivers State. He pleaded not guilty to the charge.

The facts of this case are well stated in the judgment of Ogundare J.C.A. who delivered the unanimous judgment of the Court of Appeal. On 29th November, 1985, Ama Boms (P.W.1) who was the landlord of one Bassey Udoh had a disagreement with one Friday Udoh, a relation of Bassey Udoh over the volume at which Friday was playing his stereo set. Friday was staying in Bassey’s room who had travelled abroad then. There was a fight as a result of which P.W.1 sustained injuries and lodged a complaint at the Police Station. Consequently, Friday and one Anthony Ekanem who was with Friday at the relevant time were arrested and detained by the Police. Later in the day, the two arrested persons were released on bail to the appellant. The three of them together with two policemen and one other person called Atako went to the house of P.W.1 to plead with the latter to allow both Friday and Anthony spend the night in the premises. This was between 7-8 p.m. in the evening. They met P.W.1 with his father (P.W. 2) and the deceased (brother of P.W.1) P.W.1 refused the request of Friday and Anthony for fear that they may harm him. During these discussions in P.W.1’s compound there was a power failure and so there was no light although the witnesses said that there was moonlight. Following the refusal of P.W.1 to allow Friday and Anthony to spend the night in the house, appellant and his team proceeded to leave the compound with the two policemen in the lead. The deceased also followed them as well as P.W.2 while P.W.1 went inside his room. While still inside the compound however, the deceased raised an alarm and ran towards his father (P.W.2). As the deceased was trying to explain the situation to P.W.2, the appellant appeared and shot the deceased with a gun by the left side of the chest. The deceased fell down. P.W.2 raised an alarm and people rushed in to render assistance. The deceased died on the spot. After the shooting the appellant and his team disappeared. In fact, Friday, Anthony and Atako have not been seen since then. Later that evening, irate neighbours set ablaze the car used by the appellant to convey his team to the premises earlier on.

The appellant both in his statement to the police and evidence in court denied shooting the deceased. He said he was at the material time standing outside the gate when he heard a voice inside the premises to the effect that “he had been stabbed.” He then ran to the gate to see what was happening. As he opened one side of the gate a bottle was thrown at him. The bottle hit the gate and got broken. Some particles of the broken bottle hit his eye lens and cut his left eye lid. When the two policemen saw him bleeding from his eye, they ran away. He went by taxi to report at the police station that he was injured by an unknown person. He was later treated at a private clinic before returning home. On reaching home he went with his landlord to the premises of P.W.1 to collect his car. They discovered the car had been burnt.

At the trial, the prosecution called seven witnesses and closed its case. The appellant testified in his own defence and called no witnesses.

At the conclusion of the trial, the learned trial Judge in a reserved judgment found the charge proved and convicted the appellant. He was sentenced to death.

Being dissatisfied with the decision of the trial court, the appellant appealed to the Court of Appeal on a number of grounds and raised the following four issues for determination –

“1. Whether there was a plea to the Charge or amended Charge by the Appellant before the trial court?

2. Whether on the evidence of P.W. 2 and other prosecution witnesses it can be said that it was the Appellant and no other person that shot the deceased?
3. Whether the prosecution on the facts proved its case beyond reasonable doubt and consistent with Section 137 of the Evidence Act; R. V. ABDULAHI ISA (1961) 2 SCNLR 347; (1961) All NLR 668; ABEKE ONAFOWOKAN V.THE STATE (1987) 3 NWLR (Pt.61), p. 538 at 545, and as a corollary?
4. Whether the Appellant had a fair trial as provided in Sec. 269(1) of the CPC, and Sec. 33 of the Constitution?”

The Court of Appeal considered all these issues some of which had been raised before and determined by the trial court, and in a unanimous decision given on the 11th day of December 1990 dismissed the appeal and confirmed the conviction and sentence thereon.

The appellant has further appealed to this Court. Counsel on both sides filed and exchanged briefs of argument on which they relied and expatiated in argument before the Court. In his brief Chief Jide Oki learned counsel for the appellant has formulated the issues for determination in this appeal as follows:

“1. Whether the guilt of the Appellant was proved beyond reasonable doubt in the light of the evidence of the prosecution witnesses?

2. Can it not be said there was substantial miscarriage of justice and a breach of section 33 of the Constitution of the Federation 1979?
3. Whether the contradictions and inconsistencies in the evidence of the prosecution witnesses particularly P.W.2 and P.W.4 are sufficient to affect the Appellant’s conviction and sentence to death?
4. Was the Appellant positively and properly identified by the prosecution witnesses, to wit, P.W. 2 in accordance with any form of identification known to the administration of justice?”

First Issue

Learned counsel for the appellant submitted that the learned trial Judge erred in law and misdirected himself when he stated at page 98 lines 28-31 of the record that-

“As a matter of fact the duty of an accused person is to give evidence that will destroy the prosecution’s evidence against him, or that will declare his innocence of the offence charged against him.”

He said no such duty lies on an accused person. It is not the duty of the defence to fill in details nor for the accused to prove his innocence. That conviction in a criminal trial is based on certainty and that whenever there is a doubt, the benefit must be given to an accused person. No man shall be found guilty unless his guilt is proved beyond all reasonable doubt by the prosecution. The burden of proof on the prosecution in any criminal case never shifts. When therefore the learned trial Judge purported to shift the burden on the appellant as above, he was seriously in error. He said, the prosecution asserted in their charge that the appellant shot the deceased with a gun but failed to lead evidence to that effect. The following cases were cited in support –

Bakare v: The State (1987) 1 NWLR (Pt. 52) 579 at 587 Adisa v. The State (1991) 1 NWLR (Pt. 168) 490 at 504 C.A. Alonge v. I.G.P.; (1959) SCNLR 516, (1959) 4 FSC 203, Mandilas & Karaberis v. l.G.P. (1958) SCNLR 335; (1958) 3 F.S.C. 20, Aruna v. The State (1990) 6 NWLR (Pt. 155) 125.

We were also referred to sections 137, 138 & 141 of the Evidence Act and to section 33(5) of the Constitution.

Responding Mr Jimoh learned counsel for the respondent said he agreed that an accused person has no onus placed on him to prove his innocence and that there is nothing on the record to suggest that the appellant was asked to prove his innocence. He said the prosecution dutifully proved its case against the appellant beyond all reasonable doubt. That the view expressed by the learned trial judge being complained of had no impact at all. It had not been shown to becloud his thinking and reasoning in arriving at his decision and has therefore not occasioned any miscarriage of justice. That a review of the entire case would show that there was sufficient unassailable evidence of credible witnesses to warrant the conclusion reached by the trial Court. The trial of the appellant was conducted in accordance with the procedure laid down in our laws. The following cases were cited Omisade & Ors v. The Queen (1964) NMLR 67; Lori & Anor v. The State (1980) 8 – 11 S.C. 81 at 99; Efe v. The State (1976) 11 S.C. 75; Miller v. Minister of Pensions (1947) 2 All ER 372 at 373.

There is no doubt whatsoever that under our system of criminal justice, an accused person is presumed innocent until he is proved guilty. There is therefore no question of an accused proving his innocence before a law court. For the duration of a trial an accused person may not utter a word, he is not bound to say anything. The duty is on the prosecution to prove the charge against an accused person beyond reasonable doubt. It can therefore easily be said that the learned trial Judge was in serious error when he made the statement complained of above. It is not the law. But having said that if one examines the context in which the particular statement was made and reading carefully pages 96 – 98 of the judgment, it will be found that the learned trial Judge was simply trying to establish from the evidence before him what the cause of death was. The prosecution witness said it was “gun shot wound” while the appellant said it was “stab wound”. It was in the process of trying to resolve this issue that he made the statement. And that was even after he had accepted the prosecution’s version and rejected appellant’s story. The appellant, by his own showing had stated that it was the voice of Friday Udoh that he heard shouting that “he had been stabbed” and not that of the deceased.

It is settled that any defence to which an accused person is on the evidence entitled to should be considered however stupid or unreasonable for what it is worth (See R. v. Fadina (1958) SCNLR 250; (1958) 3 FSC 11, Udofia v. The State (1984) 12 S.C. 139, Ojo v The State (1972) 12 S.C. 147). The learned trial Judge therefore rightly in my view considered the contention by the appellant that death was caused by a stab wound and not gun shot wound as contended by the prosecution when he came to decide the issue of the cause of death of the deceased. The learned trial Judge gave his reasons for disbelieving the appellant and those reasons have not been faulted before us. The finding that the deceased died of gun shot wound is a finding of fact. The Court of Appeal endorsed the finding. It is not the function of this Court to disturb findings of fact of the trial court especially where those findings are based on the credibility of witnesses who had testified before the trial court unless the decision is shown to be perverse and not the result of a proper exercise of judicial discretion (See for example Elabanjo v. Tijani (1986) 5 NWLR (Pt. 46) 952, Akpagbue v. Ogu (1976) 6 S.C. 63 Odofin v. Ayoola (1984) 11 S.C. 72). I agree with the respondent’s counsel that the statement complained of was not shown to have beclouded the thinking and reasoning of the learned trial Judge in arriving at his final decision and that there has been no miscarriage of justice. There was ample evidence on record that the deceased actually died of a gun shot wound and not stab wound which was the issue that gave rise to the statement complained about.

Second Issue

It was submitted by counsel that the appellant had anything but a fair hearing because only the case of the prosecution was considered by the trial court. It was also submitted that it was not enough for the learned trial Judge to say” I believe, I disbelieve” without properly evaluating the evidence led by the prosecution as well as the defence. He referred to the evidence of P.Ws 1 and 2. Counsel did not however say which evidence the defence led that was not considered at the trial. He said the learned trial Judge was for most of the time on a voyage of speculation as he arrived at conclusions not borne out by the evidence. That it was not the function of the court to supply missing links or speculate on possibilities not supported by evidence. A number of cases were cited including – Akpene v. Barclays Bank (1977) 1 S.C. 47; Nwachukwu v. The State (1986) 2 NWLR (Pt. 25) 765; Mohammadu v. Kano N.A (1968) 1 All NLR 424; The Queen v. Wilcox (1961) 2 SCNLR 296; (1961) 1 All NLR 631; The Stool of Abinabina v. Enyimadu (1953) 12 WACA 171.

In reply counsel for the respondent submitted that there was nothing inherently wrong in a Judge believing or disbelieving evidence led before him because he had the singular honour of watching the demeanour of the witnesses. In addition the learned trial Judge gave his reasons for believing the prosecution witnesses and disbelieving the appellant. He said that learned trial Judge gave adequate consideration to the totality of the evidence before him before arriving at his conclusions. We were referred to the cases of Fabumiyi & Anor v. Obaje & Anor(1968) NMLR 242; Okobi v. The State (1984) 7 S.C. 47; Akinloye v. Eyiyola & Ors (1964) NMLR 92; Fabunmi v. Agbe (1985) 1 NWLR (Pt. 2) 299; Omisade & Ors v. The Queen (1964) NMLR 67.

I think the issue here is a very narrow one. It is settled by a chain of authorities that an appellate court will not disturb the findings of fact of a trial court relating to credibility of witnesses and evaluation of evidence which are matters within the knowledge of the trial Judge who alone saw and heard the witnesses unless of course such findings are perverse and not justified by the evidence (See for example Okobi v. The State (Supra), Akinloye v. Eyiyola (Supra). It is equally settled that believing or disbelieving a witness is the exclusive competence of a trial court and where such belief or disbelief is supported by reasons he cannot be said to have failed to make use of his having seen and heard the witnesses.

Consequently this Court cannot interfere (See Fabunmi v. Agbe (Supra).

In the instant case the learned trial judge properly evaluated and appraised the evidence led by the two sides at the trial. He also gave ample reasons why he accepted and believed the prosecution witnesses and disbelieved the appellant. I think there is no substance in the complaint that the learned trial Judge went on a voyage of speculation before coming to his conclusions. All the material conclusions or findings relevant to the charge against the appellant were clearly based on the evidence led at the trial. I am therefore unable to see anything unfair in the trial of the appellant as a whole.

Third Issue.

It was submitted that there existed material contradictions in the evidence of P.Ws 1, 2 & 4, strong enough to have caused reasonable doubt in the mind of the trial Judge. He said while P.Ws 1 & 2 said that the appellant was one of the people who entered inside the compound, P.W. 4 said that the appellant was standing by his vehicle parked at the side of the gate. He said the appellant himself stated that he was still standing at the gate when he heard a shout inside, and that when he opened the gate, a bottle was thrown at him.

There is no doubt that the appellant in his evidence denied entering the premises of P.W.1 although in his statement (Exh. C) he admitted going into the premises with others who came with him. The learned trial Judge after considering the evidence before him found on page 101 of the record thus –

“I am therefore left with no option than to hold that the accused entered the premises of P.W.1 when he drove the two policemen PWs 3 & 4 ………….. to the residence of P.W. 1. Having so held, there is no doubt in my mind that the accused’s presence was very much in the premises on the night of the 29th November 1985 and I believe the evidence of P.Ws 1 & 2 when they stated that the accused was in the premises while the two policemen chatted with P.W.1 and that he was seen pacing up and down the compound with one hand in his trouser pocket. I do not think there was any discrepancy in P.W.4’s evidence. Rather he gave a correct sequence of the event as known to him at the time the accused then entered the compound after locking his car as he himself stated.”

I think the learned trial Judge adequately considered the evidence before him on the issue and rightly came to the conclusion that there was no inconsistency or discrepancy in the evidence of the prosecution witnesses. The Court of Appeal also agreed with the conclusion arrived at by the trial court. We cannot interfere now.

Appellant’s counsel also referred to another inconsistency in the evidence of P.Ws 6 & 7. He said while P.W.6, the Pathologist, stated that the wound on the deceased was caused by a gun shot, and that death was caused by the gun shot, he still did not recover any bullet from the body because he did not try to find if there was a bullet in the body. P.W.7 the police inspector on the other hand stated that he searched the premises to see if he could recover the bullet shell but found none. He also said when he requested P.W.6 for the bullets he recovered from the body of the deceased, the latter said he did not recover any. P.W. 6 also informed him (P.W.7) that there was no exit (wound) from the back of the deceased. It was submitted that the unanswered questions in the case ought to have been resolved in favour of the appellant. He referred to Onubogu v. The State (1974) 9 S.C. 1, Akosile v. The State (1972) 5 S.C. 332; Ikem v. The State (1985) 1 NWLR (Pt. 2) 378.

The respondent in reply said that there were no contradictions in the evidence of P.Ws 6 and 7. He said P.W.6 was positive that, the death was caused by gun shot. That the fact that he did not try to recover a bullet from the body or could not remember whether or not he was specifically asked to look for a bullet, were no contradictions at all.

Now Dr Ogbonna Chinwo (P.W.6) who performed the post mortem examination testified on pages 30-32 of the record as follows –

“On the 2nd December, 1985, I remember I performed a post mortem examination. I wrote a report of this post mortem examination……………………. The person on whom I performed the post mortem examination is known as Blessing Ngozi Boms…………………… There was a bullet wound on the left upper chest……………. There was massive haemorrhage in the thoracic cavity. The wound was caused by a gun shot. Death was caused by the gun shot. The wound could not have been caused by anything else that I can think of other than a bullet. I did not recover any bullet from the body. I did not try to find if there was a bullet in the body…………… ”

Under cross-examination he continued thus –

“It has not been my practice to look for bullets in the body of deceased persons during examination all the time. I look for bullets in the body of deceased persons when I am specifically requested to do so by the investigating police officer. I cannot remember whether I am specifically asked to look for bullet on this occasion. A wound caused by a bullet has a characteristic which I saw in the wound on the body of the deceased. I reject the suggestion that the deceased did not die of gun shot wound…………………. The wound could not have been caused by pellets. Pellets enter the body causing multiple wounds. A bullet enters the body causing one direct wound.”

On the other hand Police Inspector Weston Ghomorai who testified as P.W.7 stated in cross-examination on page 35 of the record that –

“I requested the doctor P.W.6 to produce the bullets he recovered from the body of the deceased. The doctor said he did not recover any bullet(s) from the body of the deceased. P.W.6 also informed me that there was no exit from the back. I did not find any spent bullet in the premises.”

With respect to learned counsel for the appellant, I think I have no alternative other than to agree with the submission of counsel for the respondent that the so called contradictions or inconsistencies are no contradictions whatsoever. There was positive evidence that the deceased died of gun shot wound. Apart from the evidence of P.W.6 the testimonies of other prosecution witnesses was to the effect that the deceased died on the spot after he had been shot. In such a situation the court can infer the cause of death even without expert evidence of the doctor. (See Adamu v. Kana N.A. (1956) SCNLR 65; (1956) 1 FSC 25). I also feel that P.W.6 adequately explained why he did not look for any bullet from the body of the deceased in the instant case. There is clearly no merit in this complaint.

Fourth Issue

It was submitted that the identification of the appellant by P.W. 2 was not legal or proper. The need for a proper identification in accordance with laid down rules and procedure became stronger in this case as the alleged offence was committed in the night when visibility was impaired because of NEPA blackout, and also when the appellant contended that at the material time he was standing outside the premises. He said the police should have paraded the appellant along with other persons generally of similar build, height, physical looks and complexion, before the identifying witness. He said although P.W.2 said he saw the appellant pass him and shoot the deceased with a gun, seven other people including two policemen were then present at the scene of crime. It was submitted that the learned trial Judge was wrong to have accepted the evidence of P.W.2 without any reservation. He said even P.W. 4 in his evidence said the appellant was standing by his vehicle outside the gate. It was contended that the identification of the appellant by P.W. 2 was improper since he failed to mention appellant’s name to the police even though he said he knew him (the appellant). He referred to Bay Muka & Ors v. The State (1976) 9 – 10 S.C. 305; Ikem v. The State (Supra); Adeaye v. The State (l959) NMLR 100; Anyanwu v. The State (1986)5 NWLR (Pt. 43) 612.

Mr Jimoh in reply submitted that the identification of the appellant was positive and cogent. He said there was overwhelming evidence on the record showing that the appellant was at the scene of the crime at the material time when the offence was committed. He referred to the evidence of P.Ws 1, 2 & 4, and particularly that of P.W.2 which showed that he had known the appellant two years before the incident whenever he visited P.W.1 in his compound. It was therefore submitted that in the circumstances of the case the holding of an identification parade was wholly unnecessary and uncalled for. He said the prosecution adduced sufficient and acceptable evidence that the appellant committed the offence in question. He referred the court to – Njovens & Ors v. The State (1973) 5 S.C. 17, Ntam & Anor v. The State (1968) NMLR 86.

The learned trial Judge considering the issue of identification and the evidence of P.W. 2 said on page 103 of the record-

“The distance 10 feet in my view could not have presented any difficulty in recognising a person well known to 2nd P.W. under a moonlight. He had also earlier seen the accused in 1st P.W’s premises pacing up and down and third and fourth prosecution witnesses chatted with 1st P.W. Above all, observing 2nd P.W. in the witness box, he did not during the over 90 minutes of his examination-in-chief convey the impression to me he had a bad sight. Rather I observed he had strong, clear, piercing eyes. Second P.W. identified a person who had not just a brief acquaintance with him, but one whom he had known very well for a period of more than two years. Since the witness testified that he knew the accused very well as a person who frequently visited 1st P.W.’s house to see Bassey Udoh who was 1st P.W’s tenant, I accept and believe his evidence and I hold that there was nothing which was unacceptable in the identification. It was not a mistaken one as suggested by the defence.”

I agree entirely with the views expressed by the learned trial Judge in the passage above. I have no doubt at all like the Court of Appeal that the learned trial Judge gave adequate consideration to the totality of the evidence adduced before him on this issue before arriving at the conclusion he reached above. I see no justification whatsoever in interfering with his finding on the issue of identification. His finding is amply supported by the evidence. The circumstances of the case were such that conducting a formal identification parade was unnecessary. The P.W. 2 knew the appellant and identified him even though he did not know his name. Identification parades are conducted for real and tangible human beings and not for mere intangible names. The complaint herein lacks substance.

All the issues having been resolved against the appellant, the appeal fails. It is hereby dismissed. The conviction and sentence are further confirmed.

Other Citation: (1992) LCN/2218(SC)