➥ CASE SUMMARY OF:
Vivian Odogwu v. State (2009) – CA
by PipAr Chima
➥ COURT:
Court of Appeal – CA/PH/345/05
➥ JUDGEMENT DELIVERED ON:
Tuesday, the 20th day of January, 2009.
➥ AREA(S) OF LAW
Murder;
Circumstantial evidence;
Direct evidence;
Tainted witness;
Hearsay evidence;
Findings of fact.
➥ NOTABLE DICTA
⦿ WHEN IS A WITNESS TAINTED
The position is that a tainted witness is either an accomplice or a witness who has an interest to defend or a purpose to serve in a case in which he is called upon to give evidence as a witness. It has to be shown that the witness has some peculiar interest to protect or purpose to serve in the evidence he gives in a case in order to make him a tainted witness. – M.L. Garba JCA.
⦿ NO LAW PROHIBITS RELATIONS FROM TESTIFYING IN A CRIMINAL TRIAL
There is no law, it should be pointed out, which prohibits relations of the victim of a crime or otherwise from testifying for the prosecution in a case against an accused person charged in the commission of such crime. As a result, a witness cannot properly be described and treated as a tainted witness by reason only of his blood, marriage or other relationship with the victim of the crime in respect of which he testified as a witness for the prosecution. – M.L. Garba JCA.
⦿ RELATIONSHIP OF WITNESS TO VICTIM IS IRRELEVANT
Where the evidence of such a witness is otherwise credible and sufficiently of probative value to the charge, the fact of his relationship to the victim or that he has other personal interest of his own to serve is by itself not sufficient to reject his evidence. In law, causes are not lost on the basis that the witness/s is/are members of the same family, association or community. Even where the Court fails or omits to caution or warn itself on evidence that is true in fact and sufficient to ground a charge, the failure or omission would not weaken the validity of such evidence or be fatal to a conviction. – M.L. Garba JCA.
⦿ NATURE OF HEARSAY EVIDENCE – RATIONALE FOR HEARSAY EVIDENCE EXCLUSION
Now, the law is settled that any statement made to a witness by a person who is not himself called as a witness is hearsay if the statement seeks to establish the truth of what is contained therein and therefore inadmissible in evidence pursuant to Section 77 of the Evidence Act. This is because such evidence which consists of a retell of a story told by another person would not be direct oral evidence of the fact in respect of which it is given. Put simply, it would be a tale retorted. The rationale for the rejection of such story telling was beautifully stated by EJINWUNMI JSC in the case of EJIOFOR V. STATE (supra) and quoted by the learned counsel for the Appellant in the Appellant’s brief. I can’t resist reproducing it here. At page 221 of the report, the learned JSC put the rationale thus:- “The hearsay rule is a very salutary rule indeed. It is a rule, which is grounded upon commonsense as the focus of it is to prevent a person from being accused or found guilty of an offence, which he did not commit. It is a self-evident fact; malevolent people could manufacture such evidence as they would to falsely accuse persons of offences, which they did not commit. By reason of this rule, Courts are enjoined and indeed under a duty not to accept and/or convict an accused person upon testimony of witnesses who did not see, hear, or had perceived by any other sense or in any other manner, the facts given in their testimony at a criminal trial of an accused person, as in the instant case or even in a civil case. This rule except for such exception as res gestae rule and certain recognized statutory exceptions which we are not concerned with in this case, is mandatory for all Courts. Should a trial Court convict an accused person upon evidence adjudged to be hearsay evidence, an appellate Court may quash such convictions, if there is no other evidence upon which the conviction of the accused could be properly and safely convicted?” – M.L. Garba JCA.
⦿ REASONS FOR REJECTION OF HEARSAY EVIDENCE
From all the authorities, the salient reasons which appear for the rejection of hearsay evidence include the following: a) That the maker or originator of the statement was not under oath when he made it. b) That there is no opportunity for the cross examination of the maker; c) The likelihood of depreciation of the truth or accuracy of the facts in the process of repetition by the witness reporting it. d) The Court would not have the opportunity to observe the demeanour of the maker as a witness since it is not a direct evidence from him. – M.L. Garba JCA.
⦿ WHAT REASONABLE DOUBT MEANS IN CRIMINAL TRIAL
The term “Reasonable doubt” has not been defined in the definitions Section 2 of the Act, but its connotation has received many definitions from judicial authorities. For instance, the very famous and erudite Denning, J (later M.R.) in the case of MILLER V. MINISTER OF PENSIONS (1947) 2 ALL E.R. 372 said that- “It need not reach certainly, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt.” The term is therefore of common law origin and was incorporated in our law of evidence.
In the case of BAKARE V. STATE (1987) 579 @ 587, our own version of Denning, J and equally erudite and eloquent OPUTA, JSC put the requirement of proof beyond reasonable doubt thus:- “Proof beyond reasonable doubt stems out of the competing presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including administration of criminal justice. Proof beyond reasonable doubt means what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency consistent with an equally high degree of probabilities.” – M.L. Garba JCA.
⦿ ABSOLUTE CERTAINTY IS NOT REQUIRED FOR CONVICTION IN CRIMINAL CASES
It can be discerned from these cases that though certainty is an essential element of proof in criminal liability or guilt, absolute certainly is not required because it is “impossible in any human adventure including the administration of criminal justice.” That’s one reason why the requirement of standard of proof placed on the prosecution is to prove beyond reasonable doubt and not beyond all or any shadow of doubt. The standard of proof and the burden placed on the prosecution are by the endless judicial authorities on the issue, now common place. – M.L. Garba JCA.
⦿ ELEMENTS OF THE OFFENCE OF MURDER
The essential elements or ingredients that constitute the offence are: (1) The death of a human being; (2) That the death of the deceased resulted from the act/s of the person accused. (3) That the act/s of the person accused was/were intentional with the knowledge that death or grievous bodily harm was its probable consequence. – M.L. Garba JCA.
⦿ COURTS ACCEPT CIRCUMSTANTIAL EVIDENCE IN PROOF OF FACTS
The provisions of Section 149 of the Evidence Act enable a Court to accept circumstantial evidence in proof of facts in issue and in particular on proof of cause of death in criminal cases. This has become necessary because in criminal matters, the possibility of always proving the offence charged by direct and positive testimony of eye-witnesses is rare. It is therefore permitted under the provisions of the section to infer from facts proved, the other facts necessary to complete the elements of guilt or establish innocence. – M.L. Garba JCA.
⦿ PROPER EVALUATION OF FACT NEEDS NO INTERFERENCE FROM APPELLATE COURT
The law is also common knowledge that where a trial Court fails to properly discharge that primary duty or the evaluation value ascribed to and inference/findings made thereon cannot be supported by the evidence adduced before that Court, then an appellate Court is entitled to intervene and interfere with such decisions of the trial Court … However where a trial Court has unquestionably and properly evaluated the evidence adduced before it, an appellate Court has no business to and is usually slow in interfering with decisions arising from such an exercise. – M.L. Garba JCA.
⦿ TRIAL COURT DECISION WILL NOT BE SET ASIDE IF FINDING IS SUPPORTED BY EVIDENCE
The decision of a trial Court would not be set aside merely because this Court would have employed a different procedure for the evaluation of the evidence, drawn different inferences and reached different conclusion on some or even all of the facts. The important thing is that the decision of a trial Court can be apparently supported by the evidence placed before it. – M.L. Garba JCA.
⦿ EVERY RELEVANT EVIDENCE IS ADMISSIBLE
Once a piece of evidence is relevant, it is admissible in evidence irrespective of how it was obtained. – M.L. Garba JCA.
➥ PARTIES
Vivian Odogwu
v.
The State
➥ LEAD JUDGEMENT DELIVERED BY:
Mohammed Lawal Garba, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT
Chief Chuks Muoma, SAN,
Chief (Mrs.) A.N. Muoma.
⦿ FOR THE RESPONDENT
Mr. R. N. Godwins, Director of Public Prosecutions (DPP).
➥ CASE HISTORY
The appellant along with other people at large were arraigned on an information/charge before the Rivers State High Court, Port Harcourt (High Court hereinafter) for the offence of murder.
A statement of the offence on the charge sheet was that the Appellant and others at large on the 31st day of July, 2001 at No. 49 Woji Road, Rumuolu, and Port-Harcourt murdered one Iyobu Nemieboka contrary to Section 319 of the Criminal Code, Laws of Eastern Nigeria, applicable to Rivers State.
Four (4) witnesses testified for the prosecution and several exhibits were admitted in the discharge of the duty to prove the alleged offence beyond reasonable doubt as required by law.
On her part, the Appellant testified in defence of the charge against her. After taking addresses of learned counsel, the High Court in the judgment delivered on the 8th of February 2005 found the Appellant guilty of the offence charged and sentenced her to death by hanging.
Being dissatisfied and indeed aggrieved by her conviction and sentence, the Appellant in exercise of her constitutionally guaranteed right of appeal, caused a Notice of Appeal dated the 30th of March 2005 to be filed on the 6th of April, 2005 against same.
➥ ISSUE(S) & RESOLUTION
[APPEAL: DISMISSED]
I. Whether the High Court was right in relying on evidence of tainted witnesses to convict Appellant?
RULING: IN RESPONDENT’S FAVOUR.
I.A. It was not demonstrated that apart from being members of the same family with the deceased, the evidence given by the witnesses about the facts they testified on, was not correct or accurate or that the witness did not know about the facts on which they gave evidence. It should be noted that at this stage, we are not dealing or concerned with whether or not the evidence of the witness was direct or hearsay or the assessment of the value weight to be attached of given to such evidence. At the moment, the question of the witnesses being shown to be tainted witness is what is at stake. I am unable to find any support from the submissions of learned counsel for the Appellant as summarized earlier, that merely because PW3 and PW4 are blood relations of the deceased, they are ipso facto, to be called and treated as tainted witnesses in the case with any interest to protect or serve in the evidence they gave. The evidence given by them did not disclose any real partiality or bias that can seriously be said to be serving or protecting any peculiar interest or purpose in the case. Of course being blood relations of the deceased, the witnesses and other family members were saddened by the death of their relation in the circumstances he died. That is quite a normal, usual and natural aspect of the human infallibility over which there is very little or no control by the human being. The feeling of sadness and loss or happiness and achievement are expressed and disclosed through emotions. There is therefore nothing unusual for a relation of a victim of a crime to show some emotions or even sentiments in the evidence he/she gives in the trial for the commission of the crime. The emotions or sentiments which are worthless in law do not on their own make a witness a tainted witness who can be said to have any peculiar interest to protect or purpose to serve in the case. In the absence of a clear demonstration of any personal or peculiar interest or purpose which PW3 and PW4 had to protect or serve in the evidence, they gave, there is no legal basis to justify their being called and treated as tainted witnesses in the case. They are simply blood relations of the deceased who gave evidence on the facts within their knowledge which are relevant to the charge against the Appellant. In the circumstances, they are not tainted witnesses in the premises of the authorities cited on the issue earlier.
.
.
II. Whether the hearsay evidence relied upon by the learned trial judge in convicting the appellant amounted to proof beyond reasonable doubt?
RULING: IN PART, IN FAVOUR OF THE RESPONDENT’S.
II.A. In the present appeal Exhibits B and S; the statement of Blessing Chinda and Cecilia Genesis respectively, were recorded by PW1, the Investigating Police Officer through whom they were also tendered in evidence at the trial. The makers of these statements were not called as witnesses in the trial and no explanation whatsoever was offered or given as to why they were not invited to appear before the High Court so as to enable the Appellant have the opportunity to cross examine them on the statements. The statements seek to and were tendered by the prosecution to establish the truth of their contents and not to merely establish the fact that they were made. The statements undoubtedly fall squarely and roundly in the province of the hearsay rule and are therefore inadmissible in law notwithstanding that no objection was raised to their admission at the time they were tendered. It was wrong or an error on the part of the High Court to have admitted the exhibits since they are inadmissible in law. For being inadmissible the exhibits do not constitute legal evidence upon which the High Court could rely on in arriving at a decision on the guilt or innocence of the Appellant. It is the duty of this Court to correct the error of the High Court by expunging such inadmissible pieces of evidence from the evidence adduced before that Court in proof of the charge against the Appellant.
II.B. However the PW1 gave evidence of the investigation conducted by him and tendered exhibits recovered in the course of the investigation. It cannot seriously be contended that the account of what the witness did and saw in the course of the investigation he conducted on the charge against the Appellant was a story that was told to him by another person to qualify it as hearsay. The evidence given by the witness on the investigations he personally conducted cannot by any stretch of reasonable imagination be said to be hearsay since it was from his personal knowledge and therefore solidly direct as required under Section 77 of the Evidence Act . References by the witness to what he said was stated by PW2 and PW3 do not qualify as hearsay since the alleged makers were witnesses who testified in Court about the relevant facts they knew on the charge against the Appellant. The references were made not to establish the truth of what was said by PW2 and PW3 but to just show that they were made by such witnesses. Whether or not the witnesses made the said statements to PW1 would be borne out by their respective testimonies as recorded by the High Court or as contained in their written statements in the course of the investigations by the police. In the circumstances, the references made by PW1 do not constitute evidence of a hearsay nature that is rendered inadmissible in law.
The court ruled that the evidence of PW1 – PW4 were direct evidence too and not hearsay.
II.C. The evidence adduced before the High Court shows that the Appellant gave materially inconsistent evidence and refused/failed to give a full and sincere and rational account of how the deceased met his violent death as the only person who knew what happened on the night of the murder. I have before now highlighted some of the material inconsistencies between the statement made by the Appellant to the police and her testimony before the High Court. Let it be remembered that the law is that where a witness, including an accused person, makes a statement to the police which is inconsistent with his oral testimony in Court, both of them should be disregarded by the Court as unreliable.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Section 6, 77, 138(1), 149, Evidence Act 2011.
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
