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Sunday Udosen V. The State (2007) – SC

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➥ CASE SUMMARY OF:
Sunday Udosen V. The State (2007) – SC

by “PipAr” Branham-Paul C. Chima.

➥ COURT:
Supreme Court – SC.199/2005

➥ JUDGEMENT DELIVERED ON:
Friday, the 26th day of January, 2007

➥ AREA(S) OF LAW
Murder;
Prosecution inconsistency.

➥ PRINCIPLES OF LAW
⦿ RESOLVE DOUBT IN ACCUSED FAVOUR
There is no doubt whatsoever that from the conflicting evidence adduced by the prosecution as to how the deceased was killed, strong doubt had been raised from the evidence which the law requires to be resolved in favour of the appellant. — M. Mohammed, JSC.

⦿ WHERE PROSECUTION WITNESSES TESTIMONY IS CONTRADICTORY, DOUBT WILL BE RESOLVED IN ACCUSED FAVOUR
It is now firmly settled that where two or more witnesses testify in a criminal proceeding and the testimony of such witnesses, is contradictory and irreconcilable (as in the instant case), it would be illogical to accept and believe the evidence of such witnesses. See the cases of Onubogu v. The State (1974) 9 SC 1 at 2 (also referred to by the learned defence counsel at the trial court at page 104 of the records); Nwosu v. The State (1986) 4 NWLR (Pt. 35) 348 and Orepakan & 7 Ors. v. In Re: Amadi & 2 Ors. v. 7 State (1993) 11 SCNJ 68 at 78. In other words, for any conflict, contradiction or mix-up in the evidence of the prosecution witnesses to be fatal to a case, the conflict or mix-up, must be substantial and fundamental. See also the cases of Enahoro v. Queen (1965) 1 All NLR 125, Nasamu v. The State (1979) 6-9 SC 153 and Namsoh v. The State (1993) 6 SCNJ (Pt. 1) 55 at 68; (1993) 5 NWLR (Pt. 292) 129. From what I have demonstrated herein above in this judgment, the conflict, contradiction and/or mix up as regards the evidence of the P.W.7 and the other prosecution witnesses. I have mentioned specifically, are very substantial, fundamental and material. Therefore, the concurrent findings of fact by the two lower courts, must be set aside by me. This is because, there is a big doubt in my mind about the guilt of the appellant. A doubt in the mind of a court, it is settled, presupposes that the case against the accused person, has not been proved beyond reasonable doubt. By this doubt, I hereby and accordingly resolve the same in favour of the appellant. See Namsoh v. The State (supra). — Ogbuagu, JSC.

⦿ BURDEN OF PROOF “BEYOND REASONABLE DOUBT” NEVER SHIFTS
It must always be borne in mind and this is settled, that the burden of proving that any person is guilty of a crime, rests on the prosecution. The cardinal principle of law, is that the commission of a crime by a party must be proved beyond reasonable doubt. This is the law laid down in section 138(1) of the Evidence Act. The burden never shifts. Therefore, if on the whole of the evidence, the court is left in a state of doubt (as I am in this instant case leading to this appeal), the prosecution would have failed to discharge the onus of proof which the law lays upon it and the prisoner/accused person, is entitled to an acquittal. See the cases of Alonge v. Inspector-General of Police (1959) 4 FSC 203, (1959) SCNLR 516; Fatoyinbo v. Attorney-General, Western Nigeria (1966) WNLR 4, and The State v. Musa Danjuma (1997) 5 SCNJ 126 at 136-137, 156; (1997) 5 NWLR (Pt. 506) 512. — Ogbuagu, JSC.

⦿ THERE MUST BE A NEXUS BETWEEN THE DEATH OF THE DECEASED AND THE ACT OF THE ACCUSED
Also settled, is that in a murder trial, the prosecution, must show conclusively, that the death of the deceased was caused by the act of the accused person. In other words, there must be a nexus between the act of the accused person and the death of the victim. — Ogbuagu, JSC.

Available:  Abubakar Dan Shalla v. State (2007)

⦿ FAILURE TO PROVIDE AN INTERPRETER FOR AN ACCUSED IS NOT FATAL
In any case, I hold that failure to provide an interpreter where an accused person is represented by counsel, and there is/was no objection raised at the trial court, this will not result in vitiating the trial or result in disturbing or interfering with the judgment of a trial court. It will or may be a different thing where there is no counsel representing the accused person and where such failure will or has led to a miscarriage of justice or that the accused person has been prejudiced thereby as a result. — Ogbuagu, JSC.

➥ LEAD JUDGEMENT DELIVERED BY:
A. Oguntade, J.S.C.

➥ APPEARANCES
⦿ FOR THE APPELLANT
E. Wabara, Esq.

⦿ FOR THE RESPONDENT
C. Azuama, Esq. D.P.P., Imo State.

➥ CASE FACT/HISTORY
The case made by the prosecution broadly speaking, was that, on 21/11/87, the appellant, a police corporal, was on road duty with some other policemen at about 4p.m. along Okigwe-Enugu Express Road. Whilst there, the policemen saw a Jetta saloon car with its headlights on which sped past the police checkpoint and in the process refused to stop despite being ordered to do so. The appellant, in reaction opened gun fire on the car shouting in the process “armed robbers, armed robbers.” The car did not stop. The appellant, with another police corporal, boarded a taxi which happened to be around at the time and pursued the Jetta saloon car. A little later, an alarm was raised that the body of a woman was found along a lane of the Enugu-Okigwe Express Road. She was bleeding. She was Eunice Ikezuagu (hereinafter referred to as ‘the deceased’).

The appellant was at the Okigwe High Court of Imo State charged with the offence of murder. It was alleged that he, on 21-11-87, murdered one Eunice Ikezuagu along Umulolo-Okigwe/Enugu Express Road. The case was heard by Okoroafor, J. The appellant was on 13-12-91 found guilty, as charged and accordingly sentenced to death.

Before the trial Judge came to the above conclusion, the trial Judge had in a brief evaluation of the evidence said at page 115 said: “I have very carefully considered and weighed the evidence before me and 1find as a fact that it was only the accused person who fired his gun on that date during the road block. This was not denied by the prosecution witnesses. I am satisfied and do find as a fact that none of the prosecution witnesses was at the spot where the accused fired his gun except the PW7. The PW2 in his evidence said that the shooting was heard from a distance of about 600 yards. The PW7 testified that the accused and another policeman accosted the deceased Eunice Ikeazuagu and shot her. It is the case of the prosecution that the accused and one P.G. Omozele left the road block and boarded a taxi. The accused did not come back to the base until about 6.30p.m. when they were about to go home. I am satisfied that neither the accused person nor the members of the team fired at the Jetta vehicle. No fire was returned from the Jetta vehicle. This piece of evidence was put in to confuse the issue. It was only the accused person who ran from one lane to another shouting armed robbers! armed robbers! The PW7 impresses me as a faithful witness. He was very sure of his evidence.”

Available:  Cosm As Ezukwu v. Peter Ukachukwu Jude Ukachukwu (SC. 160/2000, 2 July 2004)

Dissatisfied, the appellant brought an appeal against the judgment of Okoroafor, J. before the Court of Appeal, Port Harcourt (hereinafter referred to as the ‘court below’). On 28/12/2005, the court below in a unanimous judgment affirmed the judgment of the trial court.

The appellant has come before this court on a final appeal.

➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]

I. Whether the Respondent proved his case beyond reasonable doubt?

RULING: No – IN APPELLANT’S FAVOUR.
A. THAT THE DEFENCE OF THE APPELLANT CASTS DOUBT ON THE PROSECUTION CASE
“I think, with respect to the courts below, that they had not sufficiently borne in mind the inconsistencies in the two versions of the evidence called by the prosecution witnesses before the trial court. The evidence of PW8 Phillip Ibe, a Police A.S.P. was to the effect that the appellant when he left the police station on 21/11/87 for road duty, was issued with 20 rounds of ammunition. At the close of the day, the appellant returned 19 rounds of ammunition. This in effect means that the appellant had expended one round of ammunition. Now, the evidence of PWs’ 2, 3, 4 and 6 was that the appellant fired a gun shot at the Jetta car as it sped away, without stopping at the checkpoint. This piece of evidence in my view explained beyond argument how the 20 rounds of ammunition were reduced to 19.”

B. THAT NO CONNECTION BETWEEN APPELLANT SHOOTING AND THE DECEASED DEATH WAS ESTABLISHED
“On the supposition that the version of the evidence given by the PWs’ 2,3,4 and 6 was true, it is clear that the prosecution would have failed to establish an offence of murder against the appellant. These police witnesses were in agreement that a Jetta saloon car driving at speed refused to stop at a police checkpoint when ordered to do so. The appellant in reaction, fired a gun at the tyre of the vehicle. Nobody in the vehicle died. The vehicle on the evidence escaped. Shortly after, the deceased was seen near a mammy market bleeding. It was not quite clear how the gun shot fired by the appellant could have hit the deceased. The position she was, in relation to the vehicle fired at by the appellant was not indicated on the evidence. It was also not shown, the location of the mammy market near the scene in relation to the vehicle fired at with a view to show that the appellant had been reckless by shooting at the vehicle speeding away.”

C. THAT THE CASE DOES NOT EVEN FALL UNDER TRANSFERRED MALICE
“The facts of this case do not fall within the scope or doctrine of transferred malice. If the appellant had intended to cause death to the occupants of the Jetta car and had by mistake or incompetence killed the deceased, he would be guilty of murder. But the evidence on record was that he fired at the Jetta car intending to disable it from escaping. Further, there was no evidence that the appellant had intended to cause grievous harm to anybody and had in the process, mistakenly killed the deceased. See – Nungu v. Queen (1953) 14 WACA 379. The crucial element here is that the position of the deceased in relation to the escaping vehicle or the mammy market was never established by the prosecution. The prosecution therefore failed to show the requisite intent under section 319.”

D. THAT THE PROSECUTION/RESPONDENT CASE IS CONTRADICTORY
“The case of the prosecution in this case is bedeviled by the conflicting versions of the evidence given by prosecution witnesses. This has led to a situation where each of the versions does not make a consistent story as to who killed the deceased without being linked with the other; and both versions could not possibly have been true or correct. The resulting doubt ought to have been resolved in favour of the appellant.”
.
.
.
✓ DECISION:
“In the final conclusion, this appeal is allowed. The judgments of the two courts below are set aside. The appellant is discharged and acquitted.”

Available:  Adwork Limited v Nigeria Airways Limited (1999) - CA

➥ MISCELLANEOUS POINTS

➥ REFERENCED (STATUTE)

➥ REFERENCED (CASE)
⦿ IN MURDER CASE, IT MUST BE SHOWN THAT THE DEATH OF THE DECEASED WAS CAUSED BY THE ACCUSED
In Lori v. State (1980) 8-11 SC 81 at 95-96, this court per Nnamani, JSC said: “In a charge of murder, the cause of death must be established unequivocally and the burden rests on the prosecution to establish this and if they fail the accused must be discharged. See Rex v. Samuel Abengowe 3 WACA 85; R v. Oledima 6 WACA 202. It is also settled law that the death of the victim must be caused by the act of the accused or put differently it must be shown that the deceased died as a result of the act of the accused. See Sunday Omonuju v. The State (1976) 5 SC 1, Frank Onyenankeya v. The State (1964) NMLR. 34.”

⦿ WHERE PROSECUTION CASE CONTRADICTS, COURT MUST REJECT BOTH, EXCEPT PROSECUTION LAY FOUNDATION
In Onubogu v. State (1974) 9 SC 1, this court per Fatayi-Williams, JSC (as he then was) said at page 20: “We are also of the view that where one witness called by the prosecution in a criminal case contradicts another prosecution witness on a material point, the prosecution ought to lay some foundation, such as showing that the witness is hostile, before they can ask the court to reject the testimony of one witness and accept that of another witness in preference for the evidence of the discredited witness. It is not competent for the prosecution which call them to pick and choose between them. They cannot, without showing clearly that one is a hostile witness, discredit one and accredit the other. (See Summer and Leivesley v. Brown & Co. (1909) 25 TLR 745). We also think that, even if the inconsistency in the testimony of the two witnesses can be explained, it is not the function of the trial Judge, as was the case here, to provide the explanation. One of the witnesses should furnish the explanation and thus give the defence the opportunity of testing by cross-examination, the validity of the proffered explanation.”

⦿ BURDEN OF PROOF LIES ON THE PROSECUTION AND IT NEVER SHIFTS
In Alonge v. I.G.P. (1959) 4 FSC 203 at 204; (1959) SCNLR 516, Ademola, CJF stressing the burden of proof on the prosecution in a criminal case observed: “Now, the commission of a crime by a party must be proved beyond reasonable doubt. The burden of proving that any person is guilty of a crime rests on the person who asserts it and this is the law as laid down in section 137 of the Evidence Ordinance. Cap. 62. The burden of proof lies on the prosecution and it never shifts; and if on the whole evidence the court is left in a state of doubt, the prosecution would have failed to discharge the onus of proof which the law lays upon it and the prisoner is entitled to an acquittal”

➥ REFERENCED (OTHERS)

End

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