LEGAL NUGGETS (14) EVIDENCE - CONTRADICTION IN EVIDENCE -By Adedotun Habeeb Adetunji, Esq. LL.M (M.IoD), FCAI.

ABIODUN OKE AYINDE v. THE STATE (2019) LPELR-47835(SC)

ISSUE
EVIDENCE - CONTRADICTION IN EVIDENCE: Difference between contradiction and discrepancy in evidence; whether a minor discrepancy in the evidence of the prosecution is fatal to its case

"One other matter raised by the appellant in this issue is that there were discrepancies in the evidence of prosecution witnesses. One such discrepancy relates to the time the offence was committed. For whereas the Pw1 testified that the offence took place about 6.30 am, the Pw3 i.e the IPO testified that a report of the offence was made about 5.50 am. In my view, the two Courts below have satisfactorily dealt with the matter. The learned trial Judge in his judgment made the following observation on pages 108 - 109 of the record- "There is however some discrepancy that I noticed from the evidence of the prosecution. The 1st Pw under cross examination replied that the incident happened around 6.30 am. The 3rd Pw, the IPO then at Ibara Police Station, stated that the 1st P.W, reported the incident at about 5.50 hours. No doubt either of the 1st and 3rd PW was mistaken on the issue of time. For the time of the encounter with the 1st PW should be earlier in time before the report of the Police. If the discrepancy had been in the evidence of the 1st and 2nd PW, I could have concluded that each was referring to different incidents." (underlining mine for emphasis).

The Court below took time to consider the views expressed by the learned trial Judge on the issues and came to the following conclusions on pages 180-181 of the record thus: "The inference of error by the learned trial Judge is not fatal to the decision. The principal actors, that is the Pw1, Pw2 and the Appellant have each indicated that the early morning was the time in reference. Ex facie, "this discrepancy as dwelled upon extensively by the learned counsel to the appellant at pages 6-11 of the Appellants brief seems grave. However, with all the other facts put together, the value of the discrepancies pales into insignificance.

Not every discrepancy in the case of the prosecution renders the case impotent....... In this appeal the pungent evidence of Pw1 and Pw2, the Scene of crime and the very evidence of the Appellant himself at the trial clearly show that the discrepancy highlighted is not such as can destroy the case of the prosecution. It would have been different if he Appellants' accident took place at a widely contrary time and place. St Joseph's College and the street of the incidence Oke Ibode are all features which are common in the testimonies of the prosecution witnesses. The Appellant whose motor cycle was directly involved in the induced accident had to cook up a story to justify his presence at the scene." ?I agree. But let me add that a piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not when these is just a minor discrepancy between them. Two pieces of evidence contradict one another when they are by themselves inconsistent.

A Discrepancy may occur when a piece of evidence says or contains some differences in details. There is no doubt that when two or more persons are called as witnesses to say what they saw on a particular incident, there are bound to be discrepancies in those testimonies in respect of details. Courts of law should therefore concentrate on material facts and not on peripherals that have no bearing on the substance of the case. See Egunu v The State (2013)13 NWLR (pt 1372) 525, Gabriel v The State (1989) 5 NWLR (pt 122) 460 Uwagboe v The State (2008) 12 NWLR (pt 1102) 621, Ochemaje v The State(2008) 15 NWLR (pt 1109) 57, Ejeka v The State (2003) 4 SCNI 161. The time referred to by both Pw1, and Pw3 refer to early morning hour, not noon or midnight. All agree it took place early in the morning. Therefore, the much weather made on the issue is of no moment. The Pw1 testified clearly how she was robbed of her N9,000 by the appellant and his two other friends. She told the trial Court how the appellant pointed a gun on her ears. Thereafter, they pushed her into a drainage.

There is no evidence to controvert this. She warned Pw2 about the presence of armed robbers in the street he wanted to enter. Pw2 decided to dare them with his car. He hit the robbers with his car and wounded them which led to the arrest of two immediately. Appellant who was less wounded escaped but was arrested in his house with the help of the other two. Appellant says he was an innocent motorcyclist who carried a passenger to the area but was hit by the Pw2. Appellant has however not told the Court how his passenger was able to know him and locate his house.

The Court below said this much on page 183 of the record as follows:
"In denying his involvement in the robbery, the Appellant tried to explain his presence at the scene as - the usual course of his duty as a passenger motorcyclist. His passenger was badly injured and could not escape. It was the said passenger who gave the particulars which led to the arrest of the Appellant. The Appellant is silent on how a total stranger whom he picked up that morning came to know his name and residential address where he was arrested." (underlining mine for emphasis)." Per OKORO, J.S.C. (Pp. 11-16, Paras. E-A)