Why Corps member must die by hanging – SC
The general principle in a criminal trial is that the prosecution’s case must not be so riddled with material contradictions and inconsistencies that would make it unsafe to convict the accused person. It follows therefore that every contradiction or inconsistency that would be fatal to the prosecution’s case. For contradictions or inconsistencies to be fatal, […]
The general principle in a criminal trial is that the prosecution’s case must not be so riddled with material contradictions and inconsistencies that would make it unsafe to convict the accused person.
It follows therefore that every contradiction or inconsistency that would be fatal to the prosecution’s case. For contradictions or inconsistencies to be fatal, it must go to the substance of the case and not to be of minor or trivial nature. The contradictions and sometimes mix-ups in the evidence of prosecution witnesses must be substantial and fundamental amounting to a disparagement of other pieces of evidence adduced: See UDOSEN v. THE STATE 4NWLR (pt.1023) 125 at p.161 and the case of UWAEGHINYA v. THE STATE (2005) 9 NWLR (pt. 930) at 250.
In the instant case, the aspect of the testimony of the prosecution’s witnesses that the appellant claims are contradictory were clearly set out on pages 237 -239 of the record of appeal by the court below as follows:
“The learned appellant counsel avers that upon a dispassionate consideration of the situation it is clear that the viva voce evidence of the Pw1 contradicts his statement to the police on the issue of recovery of the purse and by extension the ‘identity card’ since it was said to have been retrieved from the purse.’
Also while describing the operation of the robbers the Pw1 also contradicted himself. In the statement to the police on 30/11/2004 PW1 stated
thus: ‘They ordered me into their Mercedes Boot. I pleaded with them that I would not be able to.
But in his oral evidence on 28/11/2005 the Pw1 stated thus: I was escorted to the boot of the Mercedes Benz. The one escorting me tried to push me into the boot, at this point I could not differentiate between fear and death. I looked at the one who was ordering me more closely and sternly asked him to do whatever he wanted to that I will not get into the boot.”
On the foregoing the court below then carefully review the arguments of both counsel. The Learned appellant therein queried as to what can be more contradictory than the above two statements. He submitted on page 239 of the record that with regard to the two contradictions pointed out above the trial court ought to have rejected both statements of the incident, similarly, in the court below, the appellant’ s counsel has maintained that the trial court had relied on the recovery of the said purse in convicting the appellant since the identity card was said to have been recovered from him. Relying on OGOONEZE v. THE STATE (1998) 5 NWLR’ (pt. 551) 52, learned counsel has submitted that where there should be explanation so as to clear the contradiction in the testimony of witnesses, it is the duty of the prosecution to do so and not that the court. The Respondent’s counsel has maintained that the contradictions complained of were not so fatal to the prosecution’s case.
Having set out the contradictions complained of by the appellant, the court below then duly considered them and held as follows:
“The vital evidence in respect of issue No.1 as formulated by the respondent is that pW1 and PW2 properly identified the appellant as one of the robbers who robbed them at gun point on 30th November, 2004.
They had ample opportunity and so were in proper position to do so since according to their evidence they recovered a wallet containing an ID Card belonging to the appellant at the scene of the crime, which I D card carried a clear photograph of the appellant PW1, based on this, recognized and identified the appellant in court.
Nothing stops the trial court from relying on such concrete evidence of identification to convict the accused on it particularly as there were no material contradictions in the prosecution’s case.” It seems to me the court below took pains to further consider the appellant’s alleged contradictions in the testimonies of the prosecution witnesses, when it held inter alia, as follows:
“Having read the argument of the learned counsel for the appellant and the arguments of the learned counsel for the respondent, and having gone over the available record of the trial court, I am satisfied that this appeal ought to be dismissed for the following reasons:
There is no doubt or conflict arising from or regarding the recovery of the appellant’s ID Card at the scene of the robbery in this case because the appellant has not controverted or successfully challenged the evidence of PW1 and PW2 on how they recovered his ID Card.
There were no contradictions at all in the testimonies of the prosecution witnesses in this case. The prosecution properly proved the ingredients of the offence charged.
3. The trial court adverted its mind to and considered the effect of what the appellant inappropriately termed contradictions in this case and decided that they were not contradictions in law and thereby satisfied the requirement of the law in this regard.”
I have stated that for the principle of inconsistency of testimony of witnesses to apply, it must be shown that the contradiction or inconsistency i s material and that the trial judge failed to advert his mind to the inconsistency in his judgment thereby resulting in a miscarriage of justice.
However, the court in determining the materiality of the contradiction or inconsistency of testimony of a witness, it would need to view contradiction or inconsistency against the elements of the offence charged. In the instant case the ingredients that the prosecution needs to prove or sustain a charge of armed robbery are:
(1) That there was robbery or series of robberies.
(ii ) That the robbery or each robbery was an armed robbery.
(iii) That the accused was one of those who took part in the armed robbery.
In this case all the foregoing ingredients were proved against the appellant. The appellant did not deny or dispute that on the 30th November, 2004, armed robbery in which he was part of took place, Pw1 and Pw2 properly identified the appellant as one of the robbers. According to their evidence a wallet containing appellant’ s identity Card, with his clear photograph was recovered at the scene of the crime.
In view of the foregoing, I am therefore of the firm conviction that the court below duly considered the alleged contradictions and was right to have concluded and held that there were no material contradictions In the prosecutions’ case and thereby rightly affirmed the conviction of the appellant, I cannot disturb the concurrent findings of fact of the lower courts.
In the fourth and final issue, the appellant contended in his brief of argument that the decision of the lower court upholding the conviction and sentence of the appellant was perverse, having been reached without any judicial reasoning. He has argued that the decision of the lower court was perverse because it made the conclusion that the appellant was rightly convicted before setting out to discuss the issues raised for determination in the appeal.
I must say from onset that the appellant has erroneously misapplied the principle of “Perverse decision” in the instant case. “Perverse” literally means unacceptable or unreasonable. A decision of court will be regarded as perverse where it is speculative and not based on any evidence; or the court took into account matters, which it ought not to have taken into account; or it shuts its eyes to the obvious.
I am of the firm view that the lower court in upholding the conviction and sentence of the Appellant was not perverse. In this case it is not shown that the court has failed in its function to properly and dispassionately appraise the evidence placed before it.
The court below based its decision on the evidence before it.
The appellant has further, in vain, argued in paragraph 7.04 of his brief of argument that the court below failed to look at the evidence before the trial court or the facts upon which it acted before reaching its decision on the quilt of the appellant; that the court in the first paragraph of page 11 of its judgment indicated that it went through the available record of the trial court before being satisfied that the appeal ought to be dismissed.
As rightly observed by the learned counsel for the respondent, the decision of the lower court upholding the conviction and sentence of the appellant was not in any way perverse.
Having resolved all the above issues against the appellant and in favour of the respondent I hold that the appeal is devoid of any merit and is hereby dismissed.
APPEARANCES: F.A. ONWUZULlKE Esq. for the appellant; ESSIEN E. UDOM Esq. for the Respondent.
Concluded