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FOR A CONTRADICTION TO BE FATAL, IT MUST BE MATERIAL

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For a contradiction to be fatal to any case or evidence, it must be on material points. Put another way, discrepancies do not negative an otherwise credible evidence of a witness. Before the evidence of the prosecution is said to be contradictory in nature such as to create a doubt as to which of two or more alternative versions should be believed, it must be such as to change the course of events. The contradiction in this respect must be material and fundamental. That is, it must imply that there are two or more conflicting accounts or versions of the same incident. Contradictions can therefore be said to have occurred where an account of an incident by a witness is at variance and glaringly too with another person’s account of the same incident, such that accepting the account of one witness would mean rejecting the version of the other because both accounts are mutually exclusive and in conflict. If every contradiction, however trivial to the overwhelming evidence before the Court, will vitiate a trial, then almost all prosecution cases will fail. Human faculty, it is said, may miss details due to lapse of time and error in narration in order of sequence. Going forward and even assuming that there were inconsistencies in the testimonies of the witnesses, it is settled law that contradiction in the evidence of a witness that would be fatal must relate to material facts and be substantial. It must deal with the real substance of a case. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial. See Ojeabuo V FRN (2014) LPELR-22555(CA) at 21, Paras C-F; Iregu V State (2013) 12 NWLR (Pt. 1367) 92; Musa V State (2013) 9 NWLR (Pt. 1359) 214; Famakinwa V State (2013) 7 NWLR (Pt. 1354) 597; Osung V State (2012) 18 NWLR (Pt. 1332) 256; Osetola V State (2012) 17 NWLR (Pt. 1329) 251.

— J.H. Sankey, JCA. Brila Energy Ltd. v. FRN (2018) – CA/L/658CA/2017

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TWO EVIDENCE CONTRADICT ONE ANOTHER WHEN THEY AFFIRM THE OPPOSITE

A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated not when there is just a minor discrepancy between them. Two pieces of evidence contradicts one another when they are themselves inconsistent. A discrepancy may occur when a piece of evidence stops short of, or contains a little more than what the other evidence says or contains some minor difference in details. See Gabriel v State (1989) 5 NWLR (Pt.122) p.460. If a witness makes a statement before trial which is inconsistent with the evidence he gives in Court and he does not explain the inconsistency to the satisfaction of the Court, the Court should regard his evidence as unreliable. See Onubogu & Anor v State (1974) (NSCC) p.358. I must say straightaway that it is only material contradictions that are to be considered.

– Rhodes-Vivour, JSC. Nwankwoala v FRN (2018) – SC.783/2015

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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.”

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MINOR DISCREPANCIES ARE NOT SUFFICIENT TO RAISE CONTRADICTIONS

It is now well settled that for contradictions on evidence of witnesses for the prosecution to affect conviction, they must be sufficient to raise doubt as to the guilt of the accused. In the instant case the minor discrepancies in the evidence of the prosecution witnesses are not in my view, sufficient, by themselves, to entitle the appellant to an acquittal. See Ogoala v. State (1991) 2 NWLR (Pt.175) 509 at 525; Nwosisi v. State (1976) 6 SC 109; Ejigbadero v. State (1978) 9-10 SC 81; Atano v. A.-G. Bendel State (1988) 2 NWLR (Pt.75) 201; Ayo Gabriel v. State (1989) 5 NWLR (Pt.122) 457 at 468 – 469.

— Kalgo, J.S.C. Okon Iko v State (2001) – SC.177/2001

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ONLY SUBSTANTIAL CONTRADICTIONS CREATES DOUBT

The law further requires that whatever evidence the respondent relies on in proving its case against the appellant, it must be bereft of substantial contradictions. Only material contradictions in respect of a fact in issue creates doubt in the mind of the Court thereby destroying the case sought to be established against an accused. Thus, only such material contradictions which affect live issues to which they relate avail an opposing party thereby entitling the appellate Court to interfere with the judgment on appeal giving the miscarriage of justice they occasion. See Maiyaki V. The State 2008) LPELR-1823 (SC), Sele V. The State 1 SCNJ (Pt. 1) 15 at 22 23 and Usiobaifo & Anor V. Usiobaifo (2005) LPELR-3424 (SC).

— M.D. Muhammad, JSC. Mati Musa v The State (2019) – SC.902/2014

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ONLY CONTRADICTIONS ON MATERIAL POINTS ARE RELEVANT

I have given careful consideration to the contradictions and inconsistencies highlighted in appellant’s brief. The law is clear. It is not every contradiction in the evidence of witnesses called by a party that is fatal to the party’s case but only those contradictions on material points – Nasama v. The State (1979) 6-9 S.C. 153; R. v. Ekanem 5 F.S.C. 14, (1960) SCNLR 42; Kalu v. State (1988) 4 NWLR (Pt.90) 503.

— Ogundare, JSC. Azu v State (1993) – SC. 131/1992

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MINOR VARIATIONS IN TESTIMONY IS A BADGE OF TRUTH

Oputa, JSC in Ikemson V State (1989) LPELR-1473(SC) at 44 where he magisterially intoned as follows – “Two witnesses who saw the same incident are not bound to describe it in the same way. There is bound to be slight differences in their accounts of what happened. When their stories appear to be very similar, the chances are that those were tutored or tailored witnesses. Minor variations in testimony seem to be a badge of truth. But when the evidence of witnesses violently contradict each other, then that is a danger signal. A trial Court should not believe contradictory evidence. Contradictory means what it says – contra-dictum – to say the opposite.”

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