Hearsay evidence has no probative value – SC (Continued from last week)

BETWEEN:VIVIAN ODOGWU —- APPELLANTANDTHE STATE ——- RESPONDENTSC.122/2009JUDGMENT (Delivered by Nwali Sylvester Ngwuta, JSC) Continued from last week In the circumstances, the doubt created by the disappearance of the vital exhibits and the resultant inability of this court to evaluate same enures to the benefit of the appellant. Issue 3 is resolved in favour of the appellant.Issue […]

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

Continued from last week

In the circumstances, the doubt created by the disappearance of the vital exhibits and the resultant inability of this court to evaluate same enures to the benefit of the appellant. Issue 3 is resolved in favour of the appellant.
Issue 4 is:
  ‘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 or in the prosecution’s case?
The pieces of evidence referred to are; (1) a copy of Punch Newspaper of Friday 28th September, 2001 and, (b) a copy of the funeral programme of the deceased. On the Punch Newspaper, the learned trial Judge agreed with learned counsel for the appellant that under Section 116 and in view of the case law relied on by learned counsel for the parties, the Newspaper did not have to be produced from proper custody before it can be received in evidence.
The learned trial judge read the relevant portions of the paper land concluded that “the article was based on a letter dated 15th July, 2001 but delivered 21 September”. From the ruling, part of the Newspaper reads:
How are you doing today? Hope you are enjoying your brief stay here on earth. We are called the Black Dragons … Again do you still remember your friend Iyobu Nemieboka … Nemieboka; who thought he was Almighty God we brought him down … “
The learned Trial Judge held, inter alia: ‘Reading the article and its contents this court can reasonably draw the inference that the author recorded information supplied to him by a person or a group of persons that lacked personal knowledge of the matter pending before this court or relevant to the matter before this court. Coupled also with the evidence of PWl that this article was not brought to his attention in the course of investigation and as it appeared he did not see the document save for seeing it in court, the defence has failed to show the relevance of the document and this court does not see and does not consider the said newspaper relevant. I hold that the Punch Newspaper of Friday, September 28 the (sic) article captioned ‘Law Teacher Resigns over Death Threat from Cultists’ is not relevant to the matter in issue in this criminal trial and thus it is inadmissible in evidence …’
There was no evidence before the trial court that “the article was based on a letter dated 15th July, 2001 but delivered on 21 September”.
There was no evidence or material from which the trial court could draw ‘the inference that the author recorded information supplied by a person or a group of persons that lacked personal knowledge of the matter pending before this court or relevant to the matter before this court.”
The trial court relied on extraneous matters in rejecting the  Newspaper.
The fact that the PWI was seeing it for the first time in court is no reason for rejecting it. The trial court held, in its conclusion, that the article captioned “Law Teacher Resigns over Death Threat from Cultists” is not relevant, and so inadmissible.
This cannot be correct in view of the portion of the newspaper reproduced by the court in its ruling of the record. The article named the deceased and who killed him.
The purpose of the trial was to determine who killed the deceased – the appellant or some other person or persons, and here is a newspaper in which a cult group – the Black Dragons – claimed responsibility for the killing in the following words: “Again do you still  remember your friend Iyobu Nemieboka … Nemieboka who thought he was Almighty God we brought him down.” Nothing can be more relevant or material to the issue before the court than the claim of the Black Dragons.
Granted that the cultists may not have “ … sliced his manhood, removed his eyes, etc … “ or “in fact dismembered his body” their claim to have brought him down” is not diminished by their obvious exaggeration of what they did to the body of the deceased. In my view, the reasons the trial court gave for rejecting the Newspaper is irrelevant and is based on extraneous matter or speculation by the court as to the source of the article.
That court go outside the evidence before it, or even rely on the personal knowledge of the judex to determine an issue before it. The reasons stated by the trial court do not justify a rejection of the Punch Newspaper of Friday, September 28th, 2001 particularly page 6 thereof. The newspaper is relevant and ought to have been admitted. See Kuruma v. The Queen (1955) AC 197.
Next is the funeral programme of the deceased sought to be tendered through PW4. The trial court rejected the document because the PW4 was not the maker; the portion of the document upon which he was to be contradicted was not shown to him; the document is not relevant as it did not show how the deceased was murdered. There is uncontradicted evidence that the document was prepared for the family of the deceased which includes PW4 and that the document was igned by Chief M. D. Nemieboka “for the family’”.
In the circumstance of this trial and on the authority of Flight Lt. Otu Edet v. Chief of Air Staff & Anor (1994) 2 NWLR (Pt. 324) cited by learned
Counsel for the defence, the document sought to be tendered as the document of each member of the family for which it was prepared was not meant to contradict PW4 but to show from its contents that the deceased could have been killed by any of those on whose toes he had stepped.
The trial court was in grave error when it held that: “ … it cannot be said they were made to throw light on how the deceased was murdered and this court will not ascribe any such insinuation and thus the said words are not relevant to the fact in issue in this suit. “
With profound respect to His Lordship of the trial court, “the fact in issue in this suit” is not how the deceased was murdered. The cause of death is a medical question settled in the autopsy report. There is no doubt that the deceased was murdered by being hit with stabilizer and stabbed with knives. These are established facts. The fact in issue, which the trial court appeared to have missed in its rejection of the document sought to be tendered, is who murdered the deceased?
The evidence is entirely circumstantial and the document, if it had been admitted, could have influenced the impact of the evidence one way or the other. It is my view that the document is relevant and was rejected on the wrong premise.
I resolve issue 4 against the respondent in favour of the appellant.
Issue 5 is:
 “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. “
This issue embraces issues 1 to 4. What will be said here below in the resolution of the issue is in addition to what I said in resolving issues 1 to 4.
First: how and when did the appellant get into the deceased’s apartment?
Appellant swore that the deceased came to her school on 30th July, 2001 and took her to his apartment and that she stayed overnight with the deceased till 31st July, 2001. Contrary to the evidence of the appellant, the prosecution’s star witness, PW1, claimed thus:
 “’I tried to find out how the accused gained entrance into the deceased apartment. I had to go round the neighbouring compound directly behind the deceased apartment. Some part of the compound is not developed. There were some heaps of moulded blocks put in that compound close to the wall fence demarcating the deceased and his neighbour and I saw that some part of the wall fence were slightly broken. The breaking was very recently judging from the time of the incident. It was this that made me believe that the accused passed through there to murder the deceased.”

To be continued.