Hearsay evidence has no probative value – SC

:VIVIAN ODOGWU —- APPELLANTANDTHE STATE ——- RESPONDENTSC.122/2009JUDGMENT (Delivered by Nwali Sylvester Ngwuta, JSC) Appellant was charged before the High Court of Rivers State holden at Port Harcourt with the offence of murder contrary to Section 319 of the Criminal Code, Laws of Eastern Nigeria as applicable in Rivers State. The particulars of the offence read: “Vivian Odogwu, […]

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VIVIAN ODOGWU —- APPELLANT
AND
THE STATE ——- RESPONDENT
SC.122/2009
JUDGMENT
 (Delivered by Nwali Sylvester Ngwuta, JSC)

Appellant was charged before the High Court of Rivers State holden at Port Harcourt with the offence of murder contrary to Section 319 of the Criminal Code, Laws of Eastern Nigeria as applicable in Rivers State. The particulars of the offence read:
 “Vivian Odogwu, and others at large, on the 31st day of July 2001 at No. 49 Woji Road, Rumurolu, Port Harcourt, murdered one Iyobu Nemieboku.”
The facts of this case appear like a feature in Nollywood programme.
Appellant was at the material time a final year law student at the University of Science and Technology, Port Harcourt. The deceased was a law lecturer in the  institution.
In the university environment, the appellant and the deceased became close to each other, fell in love and were engaged to marry. The engagement broke off and the appellant was banned from the premises where the deceased had secured accommodation with her as his wife. They went their separate ways, trading accusation for the break-up in their relationship.
The prosecution’s theory is that out of frustration at being dumped by the deceased to whom she was engaged, the appellant managed to sneak into the deceased’s apartment with a spare key, waited for the deceased who was at work, took him by surprise when he returned in the night of 31/7/2001, attacked and killed him with a stabilizer and two kitchen knives.
On the other hand, appellant claimed that the deceased came to her at her institution on 30/7/2001, brought her to his home for reconciliation.
Deceased locked her in the house on 31/7/2001 and went to work. Deceased came back by 10pm and she was angry at being kept in the house when she had some assignment to do in the school. The deceased apologised, gave her Nl0,000 for her needs and as the deceased was about driving her back to school, two masked men invaded the house and killed the deceased.
The case against the appellant was exclusively circumstantial. The prosecution called four witnesses and tendered exhibits which included 10 (ten) statements made by the appellant and statements made by two people who were not called to testify in the case. The statements were however expunged by the court below. Appellant testified for herself but called no other witness. The trial court convicted the appellant and sentenced her to death by hanging.
Aggrieved by the judgment and sentence of death passed on her, appellant appealed to the court below. The court below dismissed the appeal and affirmed the judgment of the trial court.
Appellant has appealed to this court on five grounds. Learned counsel for the appellant distilled five issues, one from each of the five grounds of appeal. The issues are hereunder reproduced:
Issues for determination
 1)   Whether the honourable Court of Appeal was right to hold that PW3 and PW4 were not tainted witnesses?
 2)   Whether the honourable Court of Appeal was right to hold that the testimony/evidence of PW1-PW4 were (sic) not hearsay evidence thereby entitling the trial Court to rely on their evidence to convict the appellant?
3)    Whether the honourable Court of Appeal was right to hold that the trial Court sufficiently and properly evaluated the evidence adduced by the prosecution as well as the appellant in proof of the charge against the appellant beyond reasonable doubt?
4)    Whether the honourable Court of Appeal was right to hold that the learned trial Judge rightly excluded pieces of evidence which were vital to the defence thereby depriving the appellant the benefit of doubt which the evidence could have created in the trial court or in the prosecution’s case?
5)    Whether the honourable Court of  Appeal was right to hold that the prosecution has proved the charge against the appellant beyond reasonable doubt, based on the circumstantial evidence before the trial court?”
In his amended brief of argument, learned counsel for the respondent presented a lone issue for determination. It reads: “Whether the court below was right in affirming the Judgment of the trial court in its conviction and sentence of the appellant?”
The bulk of the evidence of PW1-PW4 was devoted to and did, portray the appellant as a call girl.
It is evidence of bad character and no reasons were given for its admission. It is inadmissible. See Lawal v. State (1966) 4 NSCC 111. The said evidence of bad character of the appellant should have been expunged had the evidence been properly evaluated.
 PW1 swore that the appellant stabbed the deceased all over his body.
However, the doctor’s report did not mention stab wounds all over the body. It showed wounds on the head and face and cut throat as well as defensive
Wounds (underlining mine). The evidence of the PW1 that the  appellant stabbed the deceased all over his body is not borne out by the medical evidence.
A proper evaluation of evidence would have raised the question of the appellant, a mere girl, not credited with supernatural powers, killing a man in a fight (as evidenced by the defensive wounds on the deceased) without herself sustaining an injury and not having a splutter or stains of blood on her cloths or body after having killed the deceased with a stabilizer and two kitchen knives all stained with blood.
Also the pair of boots was not given any attention by the trial court even though there was evidence that it did not belong to the deceased or the appellant. Was it left by the killers? That question did not agitate the mind of the trial court or the court below. In my view, the oral evidence, if properly evaluated, would have been expunged as inadmissible hearsay, given by witnesses who, by the evidence itself, had purpose other than justice to serve.
It was inadmissible being evidence of lead character in a criminal trial.
My conclusion relates exclusively to oral evidence. Now I will consider the documentary evidence.
A letter dated 17/5/2012 was addressed by the DCR (Litigation) Supreme Court to the Deputy Chief Registrar, Court of Appeal, Port Harcourt. It was headed: “Re SC.122/9C/2009 – CA/PH/1345/2005 & PHC/9C/2002: Vivian Odogwu vs The State”. It reads:
“The above refers. On Thursday, the 17th day of May, 2002 in the course of this Hon. Court’s proceedings, it was discovered that you did not transmit to this Hon. Court the Exhibit mentioned in the record of appeal in respect of the above named Appeal. Note that this Hon. Court has already adjourned the matter to the 7 th day of June 2012. Note further that this exhibit is very vital to the determination of the Appeal, without which same cannot be possible. In view of the foregoing therefore, this Hon. Court has ordered that the said Exhibit be made available to us before the 17th day of June, 2012 …”
In reaction to the letter from the Supreme Court, the Deputy Chief Registrar of the Court of Appeal, Port Harcourt, wrote to the Chief Registrar, High Court, Port Harcourt on 21/5/2012. The letter reads in part:
 “I am directed to demand from this court all the exhibits, materials and documentary tendered in this case during this trial for onward transmission to Supreme Court” this will enable the Justices of that court determine the matter expeditiously. The case been adjourned to 7th day of June 2012 as a result of non-availability of these Exhibits…..
Exhibit: “A-A9”” Original statement of Blessing Chinda.
  ‘B”     Statement of Accused person. ‘C’ Report of Pathologist.
 ‘D”   Coroner. ‘E’ Death Report. All other Exhibits material/documentary that were tendered before the court of 1st instance. “
In a letter dated 5/6/2012 addressed to the Deputy Chief Registrar of the Court of Appeal, Port Harcourt, the Chief Registrar of the High Court, Port Harcourt replied thus:
 “Your letter dated 21st May 2012 in respect of the above subject refers.
We have searched the archives and have not been able to find any of the Exhibits mentioned in your said letter.” Above was communicated to the Chief Registrar of the Supreme Court on 6th June 2012 and the matter appeared laid to rest. In the circumstances, this
court is not in a position to determine whether or not the documentary evidence was properly evaluated. And given the antecedents of the trial court and the court below with respect to the oral evidence in this case, it is dangerous to assume that the documentary evidence was properly evaluated by either court.
The seeming flight of the exhibits from the custody of the trial court speaks eloquently to the plan to railroad the appellant to the gallows.

To be continued.