MINOR VARIATIONS IN TESTIMONY IS A BADGE OF TRUTH

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

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

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. Udosen v State (2007) – SC.199/2005

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.”

COUNSEL ALLEGING CONTRADICTION IN COURT’S JUDGEMENT MUST POINT TO THE SAID CONTRADICTIONS

Now, in the first place, it is significant and most remarkable, that the learned counsel for the Appellant, in their Brief, did not point out or identify, one single evidence of any contradiction either in the evidence of the prosecution witnesses or in any documentary evidence tendered before the trial court. I suppose, and with respect, this is commonsensical, that it is not enough or sufficient to complain or allege contradictions, without indicating the areas of any such material contradiction or contradictions either in the evidence of the prosecution witnesses or in the totality of the admissible evidence before a trial court.

— Ogbuagu, JSC. Moses v State [2006] – S.C.308/2002