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WHERE PROSECUTION WITNESSES TESTIMONY IS CONTRADICTORY, DOUBT WILL BE RESOLVED IN ACCUSED FAVOUR

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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

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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

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WITNESS CONTRADICTION – UNRELIABLE

Until now, I had always thought that if a party to a case was foolish enough to produce a witness who testified to the contrary of the pleadings had only himself to blame if the court or tribunal comments on the contradiction. A witness who would testify to the contrary of a point agreed on by all concerned is a most unreliable witness and the court is entitled to regard his evidence as a contradiction in the evidence of the party who called him.

— Ikongbeh, JCA. Ugo v Indiamaowei (1999) – CA/PH/EP/97/99

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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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WHERE THERE ARE MATERIAL CONTRADICTIONS IN PROSECUTION CASE, DOUBT IS RESOLVED IN ACCUSED FAVOUR

There is no doubt that where there are contradictions in the testimonies of the prosecution witnesses on a material fact and the said contradictions are not explained by the prosecution through any of its witnesses, it behoves the trial Court not to speculate on or profer the explanation for such contradictions and thereby pick and choose from the evidence of the prosecution witnesses that which to believe. See; Boy Muka & Ors Vs. The State (1976) 9 & 10 SC 305; Christopher Arehia & Anor Vs. The State (1982) NSCC 85; (1982)4 SC 78. Generally, the law is settled that where there are material contradictions and inconsistencies in the evidence of the prosecution, the accused is entitled to be given the benefit of the doubt so created as a result of the inconsistencies. See; Onubogu Vs. The State (1974) 9 SC.1; Nwabueze Vs. The State (1988)4 NWLR (Pt.86) 16. However, it is trite law that for inconsistency or contradiction in evidence to negatively affect its veracity, such inconsistency and contradiction must be materially significant as to affect negatively the overall case of the prosecution, otherwise such insignificant inconsistency or contradiction will be discountenanced by the Court. See; The State Vs. Azeez & Ors (2008) 8 SCM 175; (2008) 4 SC 188; Dibie & 2 Ors Vs. The State (2007) 7 SCM 101; (2007) 3 SC (Pt.1) 176; Stephen John & Anor Vs. The State (2011) 12 (Pt.2) SCM 238.

— Galadima v. State (2017) – SC.70/2013

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ESSENTIAL REQUIREMENTS TO IMPEACH CREDIBILITY OF A WITNESS AS TO CONTRADICTION

Section 232 of Evidence Act, 2011 is intended to check the double-speak of a witness, who is prevaricating on an issue that he had made previous statement in writing on. There are essential requirements of the Section that the party cross-examining a witness, who intends to impeach the credit of the witness by showing that what the witness is presently saying contradicts his previous statement in writing, must comply with. That is, (a) the attention of the witness must be specifically drawn to those parts or portions of his previous statement in writing which are to be used for the purpose of contradicting him; (b) the witness must be reminded of what he had stated in the previous statement, and (c) he must be given an opportunity of making explanation on the apparent contradictions. From the authoritative stance of this Court those are the templates the cross-examiner shall comply with before he tenders any previous statement in writing by a witness for the purpose of contradicting the witness and impeaching his credibility. See MADUMERE v. OKAFOR (1996) 4 NWLR (pt.445) 637; AMODU V. THE STATE (2010) 2 NWLR (pt.1177) 47.

— E. Eko, JSC. Kekong v State (2017) – SC.884/2014

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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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