Court Cannot Pick and Choose Which Portion of the Evidence of a Witness to Believe

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INTRODUCTION

When a person comes to court as witness and in giving his evidence, he spews both hot and cold, can the Court filter the ones to believe and discard the rest? The Court of Appeal Per OGUNWUMIJU, J.C.A in NWORU v. STATE (2018) LPELR-44640(CA) has held that: ‘The Court cannot pick and choose which portion of the evidence of prosecution witness to believe. It is either the witness is a truthful witness or an outright liar whose total evidence must be evaluated as credible or incredible as the case may be.”

FACTS OF THE CASE

Amaechi Nworu (the Appellant) was arraigned together with three other persons before the High Court of Ebonyi State, Abakaliki Judicial Division, Ebonyi State on a one count charge of murder of one Moses Akpa Nwafor.

At trial, the prosecution called four witnesses together with some documentary evidence amongst which is the extra judicial statement of the 4th accused person to the effect that he and the other accused persons (inclusive of the appellant) grievously assaulted the deceased and subsequently handed him over to some men in Benue State. The Appellant testified in his own defence to the charge against him and he raised the defence of alibi.

At the end of the trial, the learned trial judge in his judgment, chose and picked which evidence to consider and attribute weight to. And on the basis of this, convicted the Appellant and other co-accused persons for the offence of murder and sentenced them to death by hanging.

Dissatisfied, the Appellant filed a Notice of Appeal, culminating in this extant appeal, at the Enugu Judicial Division of the Court of Appeal.

ISSUES FOR DETERMINATION

The Court of Appeal distilled a sole issue for the determination of this appeal:

  1. Whether the prosecution proved that the Appellant is not entitled to the defence of Alibi and Malice and had successfully established a case of murder against the Appellant.

HELD

The sole issue was resolved in favour of the Appellant. The judgment of the trial Court delivered on 24/06/16 was thereby set aside. Also, the finding of guilt and sentence of death in relation to the Appellant was set aside. Consequently, the Appellant was discharged and acquitted.

Appeal was allowed.

RATIO DECIDENDI

  • EVIDENCE – CONTRADICTION IN EVIDENCE: Whether court can pick and choose where there is contradictions in evidence of witnesses

“…In this case, the police sought to prove by direct evidence of persons whose testimony was rendered at the trial Court of PW1- the complainant who wrote the petition to the police authorities and PW2, the wife of the deceased. PW1 stated in his petition and extra judicial statement to the police in Exhibit P3 that he was not present when the Appellant and other accused person attacked and killed Moses Akpa Nwafor at the beer parlour of one Fredrick Nwokpoku by someone who did not want his identity to be disclosed.

However in his evidence on oath, he categorically stated that he was present when the incidents which led to the attack and taking away of the deceased took place at the beer parlour.

The learned trial judge rightly rejected the evidence on oath of PW1 which was inconsistent with the earlier statement given by the witness as the Court is not allowed to pick and choose which evidence to believe. The learned trial Court held as follows on Page 151-152 the record:

“In the first place, the evidence of the PW1 that he was an eye witness to the alleged attack of Moses Akpa Nwafor was rendered inconsistent with the portion of his Exhibit P.3 where, he stated that it was Fredrick Nwokpoku that reported to him about the alleged attack and this Fredrick Nwokpoku was an eye-witness to the attack.

And the law is that, where the oral evidence of a witness on oath is inconsistent with his extra-judicial statement to the police or his previous statement in writing, the Court will disregard the oral evidence and it will not act on the said statement. See Onubogu Vs State (1974) NSCC 358.

In the instant case, the evidence of the PW1 that he witnessed the attack of Moses Akpa Nwafor will be disregarded by this Court because it is inconsistent with the extra-judicial statement of the same PW1-Exhibit P3 as stated hitherto.”

I have no reason to disagree with above reasoning.

In respect of the evidence of PW2, the wife of the deceased, in Exhibit P4, she had stated that her husband went to Effium market square in the morning of 22/08/08 and she had not seen him since then. In other statements she said she was looking for her husband after the Appellant and other accused person came to threaten him in their home but that she was asked to go back home when she volunteered to take them to where he was. On oath, she gave evidence in great and specific details of the attack on her husband and that she was also present near the beer parlour at the market early in the morning when the attack on the deceased took place. The Learned trial judge in my humble view rightly disbelieved her evidence of what happened at the scene of the crime in totality when he held on Pg 152 of the Record as follows:

“On the evidence of the PW2, it is obvious that she did not witness the alleged attack of her husband, because she was confronted with her statement, Exhibit P4 where, she said her husband went to the Effium Market Square in the morning of 22/08/08, and he did not return home. This is a contradiction of the evidence by the PW2 that she witnessed the alleged attack on her husband.” The learned trial judge refused to place any weight on their evidence of being eyewitnesses during the attack on the deceased because their evidence on oath was inconsistent with their previous statement to the police. As stated earlier, the Court cannot pick and choose which evidence to believe and is bound to reject them both. See: Kayili V. Yilbuk & Ors (2015) LPELR -24323(SC).”Per OGUNWUMIJU, J.C.A. (Pp. 17-20, Paras. B-B)

  • EVIDENCE – CONTRADICTION IN EVIDENCE: Whether court can pick and choose where there is contradictions in evidence of witnesses
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“The Court cannot pick and choose which portion of the evidence of prosecution witness to believe. It is either the witness is a truthful witness or an outright liar whose total evidence must be evaluated as credible or incredible as the case may be. See: Kayili V. Yilbuk & Ors (2015) LPELR -24323(SC). It is only an accused who has the luxury of stating several versions of a story and the Court is bound to consider all the versions before arriving at a conclusion as regards his credibility on each fact to make a finding in that regard.

See: Ayeni v. The People of Lagos State (2016) LPELR-41440(CA); Osokoya v. Onigemo (2017) LPELR-42730(CA); Ezemba v. Ibeneme (2009) 14 NWLR (Pt. 798) 623; Ajide v. Kelani (1985) 3 NWLR (Pt.12) 245.”Per OGUNWUMIJU, J.C.A. (P. 41, Paras. A-D)

  • CRIMINAL LAW AND PROCEDURE – OFFENCE OF MURDER: What prosecution must prove in a charge of murder

“I will start by restating the trite principles of law in relation to what the prosecution must prove in a charge of murder.

  1. a) That the deceased died,
  2. b) That the death of the deceased was caused by the accused,
  3. c) 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 Igabele V. State (2004) 15 NWLR Pt. 896 Pg. 314, Chiokwe v. State (2005) 5 NWLR Pt. 918 Pg. 424, Adekunle v. State (2006) 14 NWLR Pt.1000 Pg. 717.”Per OGUNWUMIJU, J.C.A. (Pp. 15-16, Paras. E-B)

  • CRIMINAL LAW AND PROCEDURE – GUILT OF AN ACCUSED PERSON: How to establish/prove the guilt of an accused person
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“As the Appellant’s counsel pointed out, there are three modes of proving the ingredients of an offence:

  1. a) By direct evidence,
  2. b) By Confession, and
  3. c) By circumstantial evidence.”Per OGUNWUMIJU, J.C.A. (P. 17, Para. A)

  • CRIMINAL LAW AND PROCEDURE – DEFENCE/PLEA OF ALIBI: Position of the law on the defence of alibi

“The appellant placed utmost reliance on his plea of alibi which literally means elsewhere. It is a defence where an accused alleges that at the time when the offence with which he is charged was committed, he was elsewhere. See: Ozaki & Anor. v. The State (1990) 1 NWLR (Pt. 124) 92 at 109.”

In this case, the police prosecution witnesses PW3 and PW4 stated that after Exhibit P8 was elicited from one of the accused persons no attempt was made to investigate the alibi put up by the Appellant and other co-accused. There is no doubt that the defense of alibi was timeously raised by the appellant as required by law since it was raised immediately he was arrested. See Bashaya V State (1998) 4 SCNJ 210 and Sowemimo & Anor V. The State (2004) 4 SCM 207. Our population is largely illiterate with little or no knowledge of the requirements of the law not to talk of access to legal counsel immediately they are arrested. After a person indicates he was in his farm, the duty of an investigating police officer bent on finding out the truth is to ask for particulars, names and addresses of those who might support or disprove the alibi of the suspect. I am of the firm but humble view that since the onus is on the state to prove that the defence of alibi is not available to the accused as a total defence to the charge, Immediately the defence is raised, the onus to disprove by investigating same shifts on the prosecution, the later must ask relevant or pertinent questions to enable it investigate the alibi. I humbly think that is the position of the law. See Yanor & Anor v. The State (1965) NMLR 337, Nwosisi v. The State (1976) 6 SC 109, Akpan v. The State (1973) 5 SC 231. Ogunbiyi JSC in Idemudia v. The State (2015) LPELR-24835(SC) quoted and reiterated the same position of the law where His Lordship stated as follows:

“In order to establish the defence, all that the accused needs do is merely to put forward evidence accordingly, the onus is not on him to prove such defence but on the prosecution to disprove it. Again see Abudu V. State (supra) at 59 where this Court in a similar situation found the evidence against the appellant equally unreliable and unsafe, it was held therefore that the case against him was not proved beyond all reasonable doubt, and he was therefore entitled to that benefit. Coker, JSC in delivering the lead judgment had this to say at page 59 of the report:- “I agree with this statement of the law. He also stated the law as regards alibi, citing amongst other cases, Yanor & Anor. V. The State (1965) NMLR 337 and Christian Nwosisi V. The State (1976) 6 SC. 109, Akpan V. The State (1973) 5 SC 231. He concluded by stating at page 55. “From the foregoing, it is clear that the person who puts forward an alibi as his answer to a charge does not undertake upon himself any burden of proving that answer, and it is a misstatement of the law or in fact a misdirection to refer to any burden of proof resting on an accused in such a case. See R. V. Anthony Hugh Johnson (1962) 46 C.A.R. 45.” I also agree that, that is correct statement of the law.”

I have noticed a gradual shift in the jurisprudence relating to alibi in recent times particularly as expounded by the trial Courts. The onus in criminal matters is fixed and rests on the prosecution. The fact that the accused is obliged to put up the defence of alibi as quickly as possible so that it would not appear to be an afterthought does not mean that he is obliged to prove it. To be a viable defence, he must be able to state the place where he was at the material time. The close questioning regarding particulars are supposed to be elicited by the Police to enable them investigate and disprove same.

In my humble view, it was a misdirection in law for the learned trial judge to seek to put the onus of proof of alibi on the Appellant. In criminal trials, the onus of proof which is on the prosecution never shifts. Any misdirection on the question of onus shows that on a proper direction, the result would be the same. See: Ozaki v. The State (1990) 1 NWLR Pt.124 Pg. 94.

In the circumstances, there being no investigation of the alibi put up by the appellant and also no eyewitness to fix the appellant at the scene where the deceased was attacked and abducted, I am of the view that the defence of alibi can avail the appellant.”Per OGUNWUMIJU, J.C.A. (Pp. 34-37, Paras. A-E)

  • EVIDENCE – DOCTRINE OF LAST SEEN: The doctrine of last seen and the extent of its application
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“The Learned trial Court was also of the view that the “Last Seen Theory” is applicable in the circumstances of this case. The theory postulates that where the accused person was the last person to be seen in the company of the deceased person, he has a duty to give an explanation relating to whatever happened to the later or how the later met his death.

In the absence of an explanation, the trial Court is justified in drawing the inference that it was the accused that killed the deceased. See Illiyasu v. State, Igabele v. The State (2006) 6 NWLR Pt. 975. Pg.100. The jurisprudence behind the “Last Seen Theory” that raises, contrary to the norm, a presumption of guilt until innocence is proved is that there must have been credible eyewitness evidence that the deceased was last seen in the company if the accused. The evidence that the accused was last seen in the company of the deceased cannot be deduced by circumstances. If particularly where there is no corpus delicti as in this case, the body of the deceased is never recovered, or even where the dead body was later recovered, the accused person last seen with the deceased must explain the circumstances of his death. The last seen theory can only be activated where there is credible eyewitness testimony on oath that indeed the accused was “Last Seen” with the deceased.”Per OGUNWUMIJU, J.C.A. (Pp. 44-45, Paras. C-E).

NWORU v. STATE (2018) LPELR-44640(CA)

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