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.”
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.