One house they say cannot be divided, howbeit to every general
rule there is an exception, fully armed with his ammunitions and
weapons of “destruction,” the lawyer approaches the Court with
optimum expectations, with a strong team of witnesses, he is fully
confident of his case, he believes in the impregnability of his
fortress, forgetting that until the rotten tooth is pulled out, the
mouth must chew with caution.
The evidence given by the prosecution witnesses play a
significant role in determining the innocence or guilt of the
accused person, situations may arise where witnesses may proffer
contradicting testimonies, or as in the case of a witness, a
testimony in court different from an extra judicial statement made
by him earlier, Morality is about to bring forth the legal issues
involved therein, in light of the position adopted by the Courts as
reflected in plethora of judicial authorities.
It is very much pertinent to note first, the distinction between
a contradiction and a discrepancy, the Court of Appeal in the case
of Akpa v. The State (2007) 2 NWLR (Pt.1019) per Kekere-Ekun JCA
(as she then was) has this to say: “A piece of evidence
contradicts another when it affirms the opposite of what the other
evidence has stated, not when there is just a minor discrepancy
between them. Two pieces of evidence contradict one another when
they are by themselves inconsistent. On the other hand, a
discrepancy may occur when a piece of evidence stops short of, or
contains a little more than what the other piece of evidence says
or contains some minor difference in details.”
As explained above clearly by My Lord, it could be deduced that
for an inconsistency in the witnesses evidence to affect the
prosecution’s case, it must be material and fundamental to the case
at hand, this could be seen clearly in the Supreme Court decision
in the case of Boniface Adonike V State (2015) 1 SCNJ 146 where it
held thus: “For a Contradiction to affect the case of
the prosecution, it must be material and go to the root of the
charge against the accused person…..”
This was exactly the position adopted by the same apex Court in
the old case of Christopher Onubogu & Anor v. The State (1974)
LPELR-SC.180/1974 in this case, the prosecution witness (PW 2, a
brother to the Complainant) gave an entirely different testimony as
regards Exhibit 4, the spear which was used to attack the
Complainant, how the spear was procured, where was the spear
procured from, at which throw of the spear was the victim injured,
at which point in time was the spear handled to the police as
exhibit and at where, a defect promptly identified by the legendary
lawyer, FRA Williams, Counsel for the appellant as he submitted
that they all amount to material contradictions, as such affecting
the credibility of the prosecution evidence.
The Court reasoned with the submission of learned Counsel for
the appellant and further provided the true position of the law
when it stated thus; 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
called 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 T.L.R. 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.
However the position would be different where the
inconsistencies are minor discrepancies that stops short of or
contain a little more than what the other piece of evidence says,
as in the case of Boniface Adonike V State (Supra), in this case
the testimonies of the witnesses varied as to the date the offence
took place, PW1 said it was on 20/6/2010, PW2 and PW3 said it was
on 19/6/2010 whereas the information available states 16/6/2010,
and the Supreme Court held thus: ……This Court has held
severally that where there are differences in the narration of
events by the prosecution witnesses, especially as to recounting or
recollecting the date of events, which are mere discrepancies, that
would not avail the accused person, because some of such
discrepancies are expected as being natural.
It has also been held as a discrepancy where there exist minor
differences between what a witness testifies in court and what he
wrote in a previous statement, this can also be seen in the Supreme
Court decision in the case of Chukwunyere V State (2017) 12 S.C.N.J
1 where it held thus: “……minor discrepancies between
previous written statement and subsequent oral testimony do not
destroy the credibility of a witness, in fact
it has been held that where no such discrepancies
occur, it may lead to a suspicion that the witness has been
tutored.”
CONCLUSION
One may be wondering why would any distinction exist between a
contradiction and a discrepancy, and the latter usually working in
favour of the prosecution, when the degree of proof in criminal
trials is said to be proof beyond reasonable doubt, the supreme
court addressed this in Boniface Adonike V State (Supra) when it
stated thus: “The duty of the prosecution is to prove
the charge against the accused person beyond reasonable doubt. I
must emphasize that it is not proof beyond every shadow
of doubt, but beyond
reasonable doubt.”
Munir Ishaq (Morality) is a 400 level law
student at Faculty of Law, Bayero University Kano. He could be
reached via +2348147841027.