Non-Material Contradictory Evidence in Criminal Trials are Insufficient to Set Aside a Conviction
It is a settled principle of law that, it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness in criminal trials that will be fatal to a case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the court and thus necessarily creates some doubt in the mind of the trial court that an accused will be entitled to benefit from it. THEOPHILUS v THE STATE (1996) 1 NWLR (Pt. 423) 139 SC. In the instant appeal, the Court of Appeal applied this principle of law and held that the inconsistencies in the evidence of the prosecution witnesses, were insufficient to set aside the conviction of the Appellant.
Facts
On or about the 1st day of September, 2001, the Appellant, a police office (in police uniform) and two other police officers (in mufti) stopped a Veragon Volkswagen Bus at the Church Bus Stop, Ipaja, Lagos, and ordered all passengers to alight from the bus. The deceased, who was one of the passengers, came down from the bus and brought out his identity card and service pistol, to show that he was a police officer. The deceased was subsequently asked to surrender his gun but he refused. This resulted in a struggle between the team of police officers and the deceased. When the struggle intensified, the deceased agreed to surrender his gun to only the Divisional Police Officer at the Appellant’s station. However, as the deceased was boarding the police’s bus, to go to the station, the Appellant pulled him back and shot him in the stomach. Subsequently, the deceased was taken to the police station, where upon confirmation that he was a police officer, he was rushed to a hospital where he died two days later.
Following the death of the deceased, the Appellant was arrested and arraigned before the High Court of Lagos State, Ikeja (“the trial court”), on a sole count of murder. During trial, the Respondent called five witnesses and tendered twelve exhibits to prove its case, whilst the Appellant testified in his defence and called no other witness. The Appellant relied on the defence of accident under section 24 of the Criminal Code, self-defence and the defence offered under the Police Force Order 237. At the conclusion of trial, the trial court found the Appellant guilty of murder and convicted and sentenced him accordingly.
Dissatisfied with the decision of the trial court, the Appellant appealed against same to the Court of Appeal, Lagos (“the Court of Appeal”). The Appellant distilled the following issues for determination in his brief of argument, to wit, (i) whether the trial court properly evaluated the evidence tendered before it; (ii) whether the conviction of the Appellant can be sustained having regard to the material conflicts in the evidence of the Respondent’s witnesses; (iii) Whether the trial court rightly held that the defences relied on by the Appellant did not avail him; and (iv) whether the Judgment of the trial court is not unreasonable and unwarranted in the circumstances.
Issues numbers 1, 2 and 4 were argued together whilst issue number 3 was argued alone. For the sake of convenience, issues numbers 1, 2 and 4 will be collectively referred to as issue number 1, while issue number 3 will be referred to as issue number 2.
On issue number one, the Appellant reiterated the principle of law on the burden of proof in criminal trials, which is proof beyond reasonable doubt and thereafter submitted that the Respondent failed to prove all the ingredients of murder against the Appellant, particularly the fact that it was the act of the Appellant that caused the death of the deceased. The Appellant submitted further that, the evidence tendered by the Respondents during trial, reeked of numerous material contradictions, which were not explained by the prosecution. These contradictions include the different accounts given on the rounds of ammunition issued to and returned by both the Appellant and the deceased, the examination of the Appellant’s gun and the make of the Deceased’s gun. On this premise, the Appellant submitted that the trial court ought to have resolved the foregoing contradictions in the Appellant’s favour and thereby erred in law by relying on the speculative evidence of the Respondent in convicting him. The Appellant relied on the cases of ONUBOGU v QUEEN (1974) 9 SC; ASUQUO WILLIAMS v THE STATE (1975) 9 -11 SC 87; VINCENT U. EGHAREVBA v DR. OROBOR OSAGIE (2010) All FWLR (Pt. 513) 1255.
The Appellant submitted further that, the trial court failed to evaluate the evidence of some of the prosecution witnesses and thereby occasioned a miscarriage of justice. He relied on the case of ALFRED USIOBAIFO & ANOR. v CHRISTOPHER USIOBAIFO & ANOR (2010) FWLR (Pt.61) 1784 and urged the Court of Appeal to resolve this issue in favour of the Appellant.
On issue number two, the Appellant submitted that assuming without conceding that it was the bullet fired from his gun that killed the deceased, the discharge was accidental as it was neither intended nor foreseeable by him. He relied on his evidence which was to the effect that, his legs slipped as he was jumping over a gutter to safety, during the exchange of shooting, and in the process, two bullets exploded into the air from his already cocked gun. The Appellant relied on section 24 of the Criminal Code and the case of ADELUMOLA v THE STATE (1988) 1 NWLR (Pt.73) 683.
The Appellant also submitted that, the defence of self-defence and the defence offered under the Police Force Order 237, will avail him, based on the evidence on record to effect that there was a struggle between the police and the deceased over the deceased’s gun and in the process several shots were fired by all parties. The Appellant urged the Court of Appeal to resolve this issue in his favour.
In response, on issue number one, the Respondent submitted that it had proved the three ingredients necessary to establish murder. On the first ingredient, which is the death of the deceased, the Respondent submitted that the evidence on record revealed that the Appellant shot the deceased with his gun and the deceased died from injuries sustained therefrom.
On the second ingredient, which is whether the death of the deceased was caused by the accused, the Respondent submitted that the death of the deceased resulted directly from the gunshot injuries sustained by the deceased. The Respondent relied on the eyewitness accounts of its witnesses. On the third ingredient, which is that the act or omission of the Appellant was intentional, with knowledge that such act will cause death or grievous body harm, the Respondent submitted that having regard to the nature of the weapon used and the severity of the injury caused, there can be no doubt that the Appellant intended to kill the deceased. The Respondent relied on the case of MICHEAL ONYIBOR NNAMAH v THE STATE (2005) 9 NWLR (Pt. 929) 147.
On the alleged contradictions, the Respondent submitted that the contradictions were not material and urged the court of Appeal not to interfere with the trial court’s findings, the trial court having observed the testimony of the witnesses and ascribed the necessary probative value to same. The Respondent relied on the case of BALOGUN & ORS v AGBOOLA (1974) 10 SC.
On issue number two, the Respondent submitted that none of the defences relied upon by the Appellant availed him. The Respondent submitted that on the defence of accident, the Appellant ought to have foreseen, as a reasonable man of prudence would, that his cocked gun could trigger off at any moment. On the defence of self-defence, the Respondent submitted that, there was no evidence on record that shots were fired by the deceased. Lastly, on the evidence under the Police Force Order 237, the Respondent submitted that the said order only permits a police officer who is in imminent danger to shoot an assailant on his legs in self-defence, which was not the case in the instant appeal. The Respondent accordingly urged the Court of Appeal to resolve this issue in its favour and dismiss the appeal.
In determining the appeal, the Court of Appeal held on issue number one that, the Respondent proved every ingredient of murder beyond reasonable doubt, as it is not in doubt that the Appellant shot the deceased with the intention to kill him or cause grievous body harm. The Court of Appeal held further that, it is an established principle of law that where death is alleged to have resulted from the actions of an accused person, a causal link between the death and the actions must be established beyond reasonable doubt. Applying this principle to the instant appeal, the Court of Appeal held that from the evidence on record, it is clear that the deceased died from the gunshot wounds he sustained since there were no intervening factors. The Court of Appeal relied on the case of OFORLETE v STATE (2000) 12 NWLR Pt. 631 Pg. 415.
On the materiality of the contradictions, the Court of Appeal observed that it is a trite principle of law as was held in the case of EBEINWE v THE STATE (2011) 7 NWLR Pt. 402, that contradictions or inconsistencies will not operate to affect the substance of a criminal case, such as to upset the judgment of a trial court, except where such contradictions are of great magnitude, to cause a miscarriage of justice.
On the premises of the above authority, the Court of Appeal considered all the contradictions complained of and held that they were all minor discrepancies which did not derogate from the vital element of the case, which is that the Appellant shot the deceased at close range in the stomach and the deceased died as a result of the wounds sustained.
On whether the Appellant’s act was intentional, the Court of Appeal held that the law is settled that an intention to kill can be inferred from the nature of the wound inflicted on the deceased and that where a person with full knowledge exposes a victim to the risk of grievous body harm or death and the victim dies, the perpetrator is guilty of murder. Applying this principle to the instant appeal, the Court of Appeal held that the Appellant who shot the deceased in the stomach at close range, intended to inflict grievous body harm or death on the deceased. The Court of Appeal relied on the case of ORISAKWE v THE STATE (2004) 12 NWLR Pt. 887 p. 258.
The Court of appeal held that the prosecution had proved its case and accordingly resolved this issue in favour of the Respondent.
On issue number two, the Court of Appeal agreed with the Respondent that, none of the defences relied upon by the Appellant availed him in the circumstance. The Court of Appeal observed that the Appellant failed to lead evidence in proof of the accident, as the Appellant neither called any witness in proof of his defence nor explained how the accident occurred.
The Court of Appeal also observed that the Appellant could not validly plead the defence of accident and self-defence at the same time as he did. The Court of Appeal, however held that the defence of self-defence does not avail the Appellant since all the eyewitnesses never mentioned that any other person, besides the Appellant, fired a gun on that day. The Court of Appeal agreed with the Respondent that the defence under the Police Force Order 237 neither availed the Appellant.
The Court of Appeal dismissed the appeal accordingly and affirmed the conviction and sentence of the Appellant. Representations For the Appellant: O.O. Oniyire Esq, with N.E. Igiewe