Non-tendering of the statement of a witness by the prosecution will not amount to withholding of evidence
ORANIKA v. STATE (2018) LPELR-45481 (CA)
In the Court of Appeal
In the Owerri Judicial Division
Holden at Owerri
ON FRIDAY, 10TH AUGUST, 2018
Suit No: CA/OW/284C/2016
Before Their Lordships:
MASSOUD ABDULRAHMAN OREDOLA, JCA
AYOBODE OLUJIMI LOKULO-SODIPE, JCA
TUNDE OYEBANJI AWOTOYE, JCA
LEAD JUDGMENT DELIVERED BY MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
FACTS OF THE CASE
The Appellant was charged before the High Court, Imo State, sitting at Owerri for the murder of one Iwuoha Godwin, pursuant to Section 319 (1) of the Criminal Code, Cap. C38, Laws of the Federation of Nigeria, 2004, as applicable in Imo State. The appellant was alleged to have initially knocked down the deceased with his Mercedes Benz car and the deceased fell with his motorcycle. That the deceased protested, and a scuffle ensued between them. During the fracas, the appellant lifted the deceased and slammed him “on stony ground.” As a result thereof, the deceased sustained spinal injury which led to his death. Consequently, the appellant was charged with murder.
The learned trial judge in a considered judgment delivered on the 30th day of September, 2015, found that the charge of murder was not successfully proved against the appellant. However, he found that the offence of manslaughter was proved. Thus, he convicted and sentenced the appellant to life imprisonment accordingly. The appellant, dissatisfied with the decision of the trial Court, appealed to the Court of Appeal.
ISSUES FOR DETERMINATION
The Court determined the appeal on the following issues: 1. Whether the learned trial judge was right in relying on the evidence of PW2, which was in gross contradictory with the evidence of PW4 and PW5 in convicting the accused/appellant, which contradiction ought to be resolved in favour of the appellant and failure on which occasioned miscarriage of justice on the appellant. 2. Whether the learned trial judge was right in relying on a document (extra-judicial statement of accused person) or a piece of evidence not placed before him in reaching his decision convicting the appellant for manslaughter. 3. Whether the learned trial judge’s conviction of the appellant for the offence of manslaughter relying on Section 179 of Criminal Procedure Act was against the constitutional right of the appellant under Section 36(6) (a) (b) and (c) of the Constitution of Federal Republic of Nigeria 1999 (as amended), and therefore, inconsistent with the Constitution.
On Issue No. 1, the learned counsel for the appellant submitted that when evidence led by the prosecution is found to be contradictory, the said contradiction would be resolved in favour of the accused and the prosecution’s case would be regarded as having failed. The learned counsel for the appellant then argued that the evidence of the respondent’s witnesses with regard to the surrounding circumstances of the appellant’s arrest and the presence of the PW2 at the scene of the crime were contradictory and has rendered the respondent’s evidence incredible and unsafe.
In addition, the learned counsel for the appellant argued that “proof of the inconsistencies in the evidence of PW2, PW4 and PW5 is the fact that the prosecution did not tender either the statement of PW2, investigation report of PW4, PW5 and the statement of DW1 at least, to establish that there was investigation of a murder case against the appellant.” The learned counsel then submitted that the refusal and or failure of the respondent to tender the said statements amounted to withholding evidence pursuant to Section 167 (d) of the Evidence Act, 2011.
Responding to Issue 1, the learned counsel for the respondent submitted that there are no material contradictions in the evidence of the PW2, PW4 and PW5 and as such, no miscarriage of justice. On the standpoint of the learned appellant’s counsel with regard to withholding of evidence, the learned counsel for the respondent submitted that “it is trite that the statement of prosecution’s witnesses is not to be tendered in a proceeding except for the purpose stated by law which is for the purpose of contradicting such witness”. He referred us to the case of Esangbedo Vs The State (1988) 1 ACCR 109 at 111; (1989) LPELR-1163(SC).
Arguing Issue 2, the learned counsel for the appellant submitted that the learned trial judge placed heavy reliance on the appellant’s extra-judicial statement that was not formally tendered before him in discrediting the appellant’s evidence. Thus, he contended that the reliance placed by the learned trial judge on statements not tendered before him is more or less a denial of the appellant’s right to fair hearing.
Responding, the learned counsel for the respondent submitted that the learned trial judge never relied on the statement of the appellant to convict the appellant for manslaughter. “The learned trial judge relied on the totality of the evidence placed before him to come to a decision of what transpired.”Concerning Issue 3, the learned counsel for the appellant contended that the trial judge erred and breached the appellant’s right to fair hearing when he found him guilty and convicted him for manslaughter without affording the appellant the opportunity to defend himself.
The learned counsel for the appellant then argued that the learned trial judge, having found that the appellant was not guilty of murder; he is expected to acquit and discharge the appellant and not to convict him for an entirely different offence with which he was not charged. He then submitted that the learned trial judge by so doing, has breached the appellant’s right to fair hearing. In her response to Issue 3, the learned counsel for the respondent submitted that the Court can convict for a lesser offence other than that charged, provided the definition of the greater offence necessarily included the definition of the lesser offence. On a charge of murder, it was held that there is power to convict for manslaughter.
RESOLUTION OF ISSUES
In resolving Issue 1, the Court held that there is no piece of evidence that in any way contradicted the material facts that established the elements of the offence with which the appellant was charged, found guilty and convicted. With regard to the issue of withholding evidence, the Court held that “in our criminal jurisprudence, it is not compulsory for the prosecution to tender the statements made by its witnesses before it could be held to have proved its case as required by law.” The Court stated that non-production of the extra–judicial statements of the prosecution witnesses as done in this case is not fatal, and has no negative effects whatsoever on the respondent’s evidence. The first issue was resolved against the appellant.
In resolving Issue 2, the Court stated that in law, no Court of law is empowered to make reference and or rely on any piece of evidence or document (as the case may be) which has not been properly and formally placed before it, in the course of reaching its decision in a case. The Court further stated the only circumstance whereby a Court is permitted to make reference or rely on evidence not tendered and formally admitted before it. See the case of Abdullahi & Anor. Vs. Sadauki & Ors. (2008) LPELR – 3557. Thus, the Court agreed with the learned counsel for the appellant that the learned trial judge erred when he made reference and or relied on the extra-judicial statement of the accused that was not tendered and admitted in evidence. See the case of Odiaka v. The State (2013) LPELR-21977 (CA) and FRN v. Wabara (2013) LPELR – 20083(SC).
However, the Court stated the position of the law, that it is not every error or mistake committed by the lower Court that would automatically vitiate its entire proceedings or render its judgment a nullity. In the instant case, the Court held that the perceived error of the lower Court in making reference to the appellant’s extra-judicial statement that was not tendered and admitted before him had no damaging or devastating effect on the lower Court’s judgment. Thus, the issue was also resolved against the appellant.
In resolving Issue 3, the Court held that a trial Court and indeed, an appellate Court, has the inherent and statutory jurisdiction to convict and sentence an accused person for a lesser offence other than the one with which the accused person was originally charged. The Court held that the conviction of such an accused person in this respect will not be regarded as a violation of the accused person’s right to fair hearing as guaranteed by the provision of Section 36 (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In the instant case, the Court held that the learned trial judge acted rightly when he convicted and sentenced the appellant for manslaughter instead of murder, which was the offence with which he was originally charged. Thus, this issue was also resolved against the appellant.
In the final result therefore, the Court found the appeal to be devoid of any merit and it was accordingly dismissed.
B.U. NWANEGBO, ESQ. – For Appellant
MRS. K. A. LEWEANYA (Asst. Chief State Counsel, Ministry of Justice, Imo State) with her, MISS UCHE S. CHUKWU, State Counsel, Ministry of Justice, Imo State – For Respondent.
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