TWO EVIDENCE CONTRADICT ONE ANOTHER WHEN THEY AFFIRM THE OPPOSITE

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

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

ONLY MATERIAL CONTRADICTIONS ARE IMPORTANT TO SET ASIDE DECISION

The contradiction complained about by the learned counsel for the Appellant is very insignificant. It is not any and every minor discrepancy or inaccuracy in the evidence of prosecution witnesses that amount to contradiction, especially where the witnesses are in substance saying the same thing. It is only material contradiction that is important. See The State vs Azeez & Ors 4 SC 188: Dibie & 2 Ors vs The State (2007) 3 SC (Pt. 1) 176.

— P.A. Galumje, JSC. Galadima v. State (2017) – SC.70/2013

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.”

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

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.”