Hearsay evidence has no probative value – SC

If there was a break in the fence the witness is not competent to say when the break took place, more so when the incident took place in the rainy season. For the appellant to scale the fence, she would have to get into the deceased’s neighbourhood’s premises. Who let her in? The PW1 did […]

If there was a break in the fence the witness is not competent to say when the break took place, more so when the incident took place in the rainy season. For the appellant to scale the fence, she would have to get into the deceased’s neighbourhood’s premises. Who let her in? The PW1 did not say. In any case, the evidence of PWl reproduced above is in irreconcilable conflict with the evidence of PW2 who said:
 “There is a fence wall demarcating my premises from the premises of my neighbour. There were metallic pins on the fence that no individual can climb through it without sustaining injury.”  PW1 said: “The accused had a minor cut on one of her fingers”. That minor cut on one finger cannot be the result of climbing the wall on which there were metallic pins. In any case, the PW1 disproved his own assertion that the appellant scaled the wall when he said:
 “I carefully examined the injury and saw that it was self-inflicted”.
Appellant said that one Blessing Chinda knew when the deceased came to pick her. The prosecution contended itself with tendering the statement allegedly made by Blessing Chinda, from which the PW1 quoted profusely.

No reason was given why the witness was not called to give evidence proving or disproving the assertion of the appellant. That evidence could be, and is not produced and it is assumed that it could have been unfavourable to the case of the prosecution if it had been produced by the prosecution who withheld it. See Section 149 (d) of the Evidence Act, 2011. See also Amgbore v. Sylva (2009) 1 NWLR.
The PW1 said that it is unfounded that on 30th July 2001, the accused slept with the deceased.” If the appellant’s story is false or unfounded, where did she sleep on 30/7/2001? The PW1 answered the question thus: “I do not know where the accused slept on 30th July, 2001.” One may ask on what basis the PW1 described the appellant’s claim as unfounded? Why did the prosecution not call evidence as to where the appellant slept on 30/7/2001?
 Again, that evidence was withheld by the prosecution because it would have damaged the case that the appellant stole into the premises and into the apartment of the deceased.
Appellant said that the deceased gave her the sum of N10,000.00. That sum was found in her bag, Exhibit 10. PW1 said: “Yes, N10,000.00 was found in Exhibit 10”. He added: “It is not correct that I did not investigate this matter.”

If “this matter” included the N10, 0000.00 appellant said the, deceased gave her and the veracity of her claim, the matter was not investigated. An investigation of the matter would have included a finger print test on the money. Apart from speculations, there is no proof that the appellant had a key to the deceased’s apartment after the deceased “the (deceased) brother of ours words were very firm ‘ that he had made up his mind to terminate the relationship”.
 There is evidence that the appellant was banned from the premises. Assuming but not conceding that the appellant had a key to the apartment of the deceased, she could not have used the key unless she got into the premises and no one has said how she got into the premises except the speculation of PWl. In the circumstances, I hold the view that the appellant did not sneak into the premises and into the deceased’s apartment. The deceased brought her into the premises and into his apartment on 30/7/2001.

Even in spite of his extreme prejudice against the appellant, the 9W1 actually exonerated the appellant from the killing by giving conflicting evidence as to who killed the deceased. PWI said:
 “From my  investigation and findings the accused murdered the deceased.”
In cross-examination, the same witness said:  “I came by the conclusion that the accused had a self-inflicted injury because of the magnitude of the injury on the deceased. If the accused was present at the time the deceased was injured she could have had half of the injury the deceased sustained.”

If the appellant “was not present at the time the deceased was injured”, she could not have killed or injured the deceased. In any case, the court cannot pick and choose between the evidence of PWl that the appellant killed the deceased and the evidence by the same witness that the appellant could not have been present at the time the deceased was “injured or killed” as no explanation was proffered for the inconsistency in the evidence of the witness, PW1. PW1 was carried away by his imagination.
At page 45 of the record, he said:
 “The accused said she was going to kill the deceased if he does not marry her. I got this information from the deceased’s father Mr. Paul  Nemieboka, the deceased’s brother Mr. Mark Nemieboka …”
Not only are the facts stated by the PW1 hearsay, they are false. It is in evidence that the appellant attempted to take her life but there is no evidence that the appellant ever said she would kill the deceased under any circumstance at all. PW1 said: from her testimony in the trial court.
 In any case, the mere fact that the circumstantial evidence adduced by the prosecution is complete and the chain of evidence is unbroken” does not lead to the irresistible conclusion that the appellant and no one else committed the murder.
That the evidence is complete and the chain of evidence is unbroken do not invest the circumstantial evidence with the cogency required for the court to draw inference of the guilt of the appellant therefrom. Had the trial court considered the conditions that must be present before the inference of guilt of an accused can be drawn from the circumstantial evidence, the appellant would have been acquitted and discharged. Had the Court of Appeal considered the trial court’s reason for reliance in the circumstantial evidence, it would have been clear to it that evidence that is complete and unbroken cannot, by that fact alone, found conviction on a charge of murder.

Again, had the lower Court considered the substance of the evidence of PW1-PW4, it would have been clear to it that the rest of the evidence is as much hearsay as Exhibits Band S – the statements of  Blessing Chinda and Cecilia Genesis that were expunged. It would have been clear to it that the witnesses testified not to help the trial Court to get the truth but to take their pound of flesh on the appellant who they believe killed the deceased even before she was tried.
They, from their evidence, did not seek justice but vengeance and to reinforce their intent, and make the trial Court act on same, they had to paint the appellant with the tarnished brush of a whore in evidence of bad character that is irrelevant and therefore inadmissible. I resolve issue 5 against the respondent and in favour of the appellant.

All the five issues having been resolved in favour of the appellant and against the respondent I allow the appeal and set aside the judgment of the Court below that the appellant and others at large killed the deceased and the judgment of the trial Court that the appellant alone killed the deceased.
Consequently, it is my order that the appellant Vivian Odogwu be and is hereby, acquitted and discharged on the charge of murder.
Appeal allowed. Appellant acquitted and discharged.

Representations:
Dr. Onyechi Ikpeazu SAN (leading Emeka Etiaba Esq, Jerry Okpala Esq, lke Ogbogu Esq, Prisca Ozoilesike (Miss) and Ifeyinwa Nwabueze (Miss) for appellant.
R. N. Godwin State Counsel, Rivers State (leading C. U. Ekel Chief State Counsel Rivers State) for respondent.

Concluded.