CORAM

---

IBRAHIM TANKO MUHAMMAD, JUSTICE, COURT OF APPEAL

KUMAI BAYANG AKA’AHS, JUSTICE, COURT OF APPEAL

CHIMA CENTUS NWEZE, JUSTICE, COURT OF APPEAL

AMINA ADAMU AUGIE, JUSTICE, COURT OF APPEAL

PAUL ADAMU GALINJE, JUSTICE, COURT OF APPEAL

---

PARTIES

---

EMEKA MBACHU

APPELLANTS 

---

THE STATE

 

---

AREA(S) OF LAW

---

---

SUMMARY OF FACTS

SUMMARY OF FACTS The Appellant herein, who was the accused at the Rivers State High Court, was the driver of a bus with Registration No. RV 1863 PC. At about 6:45pm along the Port-Harcourt-Aba expressway, by a place known as ancillary Junction, he was stopped by the members of the Road Marshall, known as Special Marshall, on the alleged offence of driving with only one headlight. The deceased a member of the Road Marshall, was assigned to book him for the alleged infraction. While the deceased was in front of the bus to examine the headlight, the Appellant, allegedly drove over him, crushed him and drove away. The deceased was taken to a private clinic where he died shortly thereafter. After taking and evaluating the evidence from the parties, the learned trial judge found the Appellant guilty of the offence as charged; convicted and sentenced him to death. On appeal to the Court of Appeal, Port-Harcourt Division, the court dismissed the appeal and affirmed the trial court’s decision. Dissatisfied with the lower court’s decision, the Appellant has further appealed to this court.

 

---

HELD

---

Appeal Dismissed

 

---

ISSUES

---

1. Whether having regard to the divergent evidence produced by the prosecution on the immediate facts of this case, the Court of Appeal was right in affirming the judgment of the trial court that charge of murder was proved against the appellant beyond reasonable doubt as required by law. Having regard to the facts established before the learned trial judge, was the Court of Appeal correct in law, in refusing to invoke the provisions of Section 179(2) of the Criminal Procedure Law of Eastern Nigeria?

 

---

RATIONES DECIDENDI

---

“PROOF BEYOND REASONABLE DOUBT” – WHETHER “PROOF BEYOND REASONABLE DOUBT” IS SAME AS PROOF BEYOND “ALL SHADOW OF DOUBT”

---

“So many literature abounds from time immemorial on the definition of the legal jargon “Proof beyond reasonable doubt.” It has now become certain that proof beyond reasonable doubt is not proof beyond “all shadow of doubt.” See: Woolmenaton v. DPP (1935) A-C 462; Oteki v. A-G Bendel State (1986) 6 NWLR (Pt.24) 648”.

 

---

PROOF OF GUILT OF AN ACCUSED PERSON – DUTY OF THE PROSECUTION TO PROVE THE GUILT OF AN ACCUSED PERSON CHARGED WITH A CRIMINAL OFFENCE

---

“In our adversarial legal system, it is the duty of the prosecution in a criminal trial such as this, to prove beyond reasonable doubt, the guilt of a person accused or charged with a criminal offence. It is proof beyond reasonable doubt where the prosecution has adduced sufficient, credible and admissible evidence to establish the ingredients of the offence charged. It has never been the duty of the person charged with an offence to prove his innocence. See: Mbenu v. The State (1988) 3 NWLR (Pt.84); Woolmenaton v. DPP (1935) AC 462.”

 

---

CONCURRENT FINDINGS OF LOWER COURTS – ATTITUDE OF THE SUPREME COURT TO CONCURRENT FINDINGS OF LOWER COURTS

---

“It is the practice of this court not to tamper with concurrent findings of the two courts below except where such a decision manifestly harbours some miscarriage of justice. See: Olaiya v. State (2010) 3 NWLR (Pt.1181) 423 at 438; Attah v. State (2010) 10 NWLR (Pt.1201) 190 at p.226 and Archibong v. The State (2006) 14 NWLR (Pt.1000) 349”.

 

---

INCONSISTENCY IN THE EVIDENCE OF THE PROSECUTION WITNESSES – WHETHER IT IS EVERY INCONSISTENCY IN THE EVIDENCE OF THE PROSECUTION WITNESSES THAT IS FATAL TO ITS CASE

---

“The point needs be re-stated that it is not every trifling inconsistency in the evidence of the prosecution witnesses that is fatal to the prosecution’s case. It is only such contradictions and or inconsistencies which are substantial and fundamental to the main issue before the court such as would create reasonable doubt in the mind of the trial court that are fatal to the prosecution’s case.”

 

---

MATERIAL CONTRADICTION – WHAT AMOUNTS TO MATERIAL CONTRADICTION?

---

“For a contradiction to be regarded material, it must go to the root of the charge before the court. It must be one that touches an important element of what the prosecution needs to prove in the case.

 

---

OFFENCE OF MURDER- INGREDIENTS THAT MUST BE PROVED BY THE PROSECUTION TO ESTABLISH THE OFFENCE OF MURDER

---

“In a criminal case such as this, all that the law requires from the prosecution is for it to establish: i.that death of the deceased has occurred ii.that it was the act or omission of the accused which caused the death and iii.that the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence, See: Ogba v. State (1992) 2 NWLR (Pt.222) 164 at 198; Aighuoreghian v. State (2004) 3 NWLR (Pt.860) 367 at 422 – 423; Edoho v. State (2010) 14 NWLR (Pt.1214) 651 at 678-679.”

 

---

CONVICTION FOR A LESSER OFFENCE – INSTANCE WHEN A COURT WILL CONVICT AN ACCUSED PERSON FOR A LESSER OFFENCE -SECTION 179(2) OF THE CRIMINAL PROCEDURE LAW

---

“The purport of Section 179(2) of the said Criminal Procedure Law is that when a person is charged with an offence and facts are proved which reduce it to a lesser offence, the accused may be convicted of a lesser offence although he was not charged with it. For instance, in a murder case such as the one on hand, a trial court and indeed even the appeal court can, in an appropriate case, reduce the charge of murder to the lesser offence of manslaughter, and impose the appropriate sentence for the lesser offence. The provision is however tenable only where the evidence available before the trial court does not support the offence charged but is sufficient to sustain a conviction for a lesser offence even though the accused was not specifically charged with the lesser offence. See: Nwachukwu v. state (supra) Odeh v. FRN (2008) 13 NWLR (Pt.1103) 1 at 23.”

 

---

FINDINGS OF FACT OF TRIAL COURTS – RATIONALE FOR THE RESTRICTION ON INTERFERENCE WITH THE FINDINGS OF FACTS OF TRIAL COURTS BY AN APPELLATE COURT

---

“It has long been established that an appellate court, generally speaking, should not interfere with findings of fact of trial courts. The reason is simple. The latter courts, that is, trial courts, had the unique opportunity of seeing and the witnesses give evidence. They not only see the witnesses, they, equally, observe all their habits and mannerisms. These include their demeanour and idiosyncrasies. As a corollary to these peculiar advantages, the Law anticipates that they should utilize all their judicial competence: competence or skill rooted or anchored on law and commonsense to evaluate the evidence by eliminating the chaff from the grain of probative evidence. Proper conclusions which a reasonable court ought to arrive at, expectedly or ideally, should eventuate from that rigorous exercise. That is why the law takes the view that a failure in this regard would warrant the interference of the appellate court, Adeye and Ors v. Adesanya and Ors [2001] 6 NWLR (pt.708) 1; Olatunde v. Abidogun [2001] 18 NWLR (pt. 746) 712; Adeleke v. Iyanda [2001] 12 NWLR (pt. 729) 1; Udo v. CRSNC [2001] 14 NWLR (pt.732) 116; Enilolobo v, Adegbesan [2001] 2 NWLR (pt.698) 611”.

 

---

CONCURRENT FINDINGS OF LOWER COURTS – EXCEPTIONS TO THE GENERAL RULE AGAINST NON-INTERFERENCE WITH THE CONCURRENT FINDINGS OF LOWER COURTS BY AN APPELLATE COURT

---

“This, then, is the foundation for the number of exceptions to this general rule against non-interference. For example, one major exception to the said general rule is that, where such findings are in fact inferences from findings properly made, the appellate court is in as good a position as the trial court to come to a decision, Ebba v. Ogodo [1984] 1 SCNLR 372; [1984] 4 SC 84, 98-100; Fabunmi v. Agbe [1985] 1 NWLR (pt. 2) 299, 314; Fatoyinbo v. Williams[1956] SCNLR 274; (1955) 1 FSC87; Ukatta v. Ndinaeze [1997] 4 NWLR (pt. 499) 251,263. This explains the prescription that an appellate court will also interfere with findings of fact where-such findings are perverse, that is, persistent in error, different from what is reasonable or required, against weight of evidence; put differently, where the trial Judge took into account, matters which he ought not to have taken into account or where he shut his eyes to the obvious, Atolagbe v Shown (1985) LPELR -592 (SC) 31; C-D.”

 

---

PERVERSE DECISION- WHEN IS A DECISION SAID TO BE PERVERSE?

---

“In all, then, a decision is said to be perverse: (a) When it runs counter to the evidence; or (b) Where it has been shown that the trial court took into account matters which it ought not to have taken into account or shut its eyes to the obvious; or (c) when it has occasioned a miscarriage of justice, Missr v. Ibrahim [1975] 5 SC 55; Incar Ltd. v. Adegboye [1985] 2 NWLR (pt.8) 453; Atolagbe v. Shorun [1985] 4 SC (pt. 1) 250, 282.”

 

---

CONTRADICTION – WHEN WILL THE TESTIMONIES OF WITNESSES BE SAID TO BE CONTRADICTORY?

---

“Then, the issue of contradiction. The –word “contradiction”, traces its lexical roots to two Latin words, namely, “contra” and “dictum”, meaning “to say the opposite”, see, Ikemson v State [1989] 3 NWLR (pt 110) 455, 479. Hence, testimonies of witnesses can only be said to be contradictory when they give inconsistent accounts of the same event. That explains why the law takes the view that for contradictions in the testimonies of witnesses to vitiate a decision, they must be material and substantial. That is, such contradictions must be so material to the extent that they cast serious doubts on the case presented as a whole by the party on whose behalf the witnesses testify, or as to the reliability of such witnesses, Enahoro v Queen (1965) NMLR 265, endorsed in Ogun v Akinye/e [2004] 18 NWLR (pt 905) 362, 392; Emiator State [1975] 9-10 SC 112; Afolalu v State [2009] 3 NWLR (pt 1127) 160.”

 

---

CONTRADICTION IN THE EVIDENCE OF PROSECUTION WITNESSES -NATURE OF CONTRADICTION IN THE EVIDENCE OF PROSECUTION WITNESSES THAT CAN AFFECT A CONVICTION

---

“In all, for contradictions in the evidence of prosecution witnesses to affect a conviction, particularly, in a capital offence, they must raise doubts as to the guilt of the-accused, Nwosis v State [1976] 6 SC 109; Ejigbadero v State [1978] 9-10 SC 81; Kalu v State [1988] 4 NWLR (pt 90) 503; Igbi v State [2000] FWLR (pt 3) 358; [2000] 3 NWLR (pt 648) 169”.

 

---

CASES CITED

---

---

STATUTES REFERRED TO

---

Court of Appeal Act

Criminal Code

Criminal Procedure Law of the Eastern Nigeria

 

---

CLICK HERE TO READ FULL JUDGMENT