IJEOMA ANYASODOR v. THE STATE(2018)

IJEOMA ANYASODOR v. THE STATE

(2018) LCN/4716(SC)

In The Supreme Court of Nigeria

On Friday, the 9th day of February, 2018

SC.655/2015

RATIO

METHODS BY WHICH THE PROSECUTION MAY BE PROVE A CRIMINAL OFFENCE

This Court in a plethora of its decided authorities had approved or endorsed three methods or modes of proof in criminal cases which include the followings: – (a) Evidence of eye witness or witnesses account who had witnessed the commission of the offence(s) by the accused person charged. (b) Through confessional statement of the accused made voluntarily by the accused wherein he categorically owned up the commission of the offence by him. (c) Through circumstantial evidence. See Emeka v. State (2001) 6 SC 227 or (2001) 14 NWLR (pt.734) 666; Ohunyon v. State (1996) 3 NWLR (pt.436) 264; Bright Chibuike & Anor vs. The State (2010) LPELR – 3911; Igri v. The State (2010) 7 WRN 47; Ogba v. State (1992) 2 MLR (pt.222) 146. PER AMIRU SANUSI, J.S.C.

INGREDIENTS THAT MUST BE PROVED BY THE PROSECUTION IN PROVING THE OFFENCE OF MURDER AGAINST AN ACCUSED PERSON

In order to prove the offence of murder against an accused person, the prosecution has the onus to establish beyond reasonable doubt, the following ingredients of the offence, namely: (i) That the death of a human being was caused (ii) That it was caused by the act of the accused; and (iii) That the act or acts was/were done with the intention that death was to be caused; or (iv) The accused knew that death would be the probable consequence of his act or acts. See Sunday Omini vs. The State (1999) 12 NWLR (pt.630) 68 or (1999) 9 SC 1 or (1999) LPELR 2638 SC. PER AMIRU SANUSI, J.S.C.

MEANING OF CIRCUMSTANTIAL EVIDENCE; NATURE OF CIRCUMSTANTIAL EVIDENCE THAT A TRIAL COURT WILL CONSIDER AND ACT ON IN ORDER TO CONVICT AN ACCUSED PERSON

In the case of Taylor & 7 others Vs R 21 Cr App R 20 at page 21, Lord Lord Hewart, Lord Chief Justice of England described circumstantial evidence as follows: – “It is evidence of surrounding circumstances which by undersigned coincidence is capable of proving on proposition with the accuracy of mathematics.” See alsoThe State v. Ogbubunjo (2001) 1 SCNJ 102; Udoebere v. The State (2001) 6 SCNJ 70. Circumstantial evidence is as good and sometimes even better than any other sort of evidence and what is meant by it is that there is a number of circumstances which are accepted so as to make a complete and unbroken chain of evidence. If that is established to the satisfaction of the trial Court, it may properly act upon such circumstantial evidence. See Olutola v. The State (2009) 2 SCNJ 135. I must however add here, that the nature of circumstantial evidence that a trial Court will consider and act on in order to convict an accused person must be cogent, complete, unequivocal and compelling leading to the irresistible conclusion that it was the accused under trial and no other person, was responsible in committing the offence charged. See cases of Peter Eze v. The State (1976) 1 SC 125; Uwe Ideghi Esai and Others vs. The State (1976) 11 SC 39. Similarly, the circumstantial evidence to be used in convicting an accused must also be incompatible with the innocence of the accused. PER AMIRU SANUSI, J.S.C.

WHO IS A TAINTED WITNESS

The law is trite that a ‘tainted witness’ is a witness who is either an accomplice or by the evidence he gives, whether as prosecution witness or for the defence, may and could be regarded as having some purpose to achieve or purpose of his own to serve. See FBN PLC vs. Nwankwocha (1998) 5 NWLR (pt.557) 610; Okoro v. State (1998) 4 NWLR (pt.584) 181; Nwosu vs. State (2006) 11 NWLR (pt. 992) 458. PER AMIRU SANUSI, J.S.C.

WHETHER THE EVIDENCE OF AN INVESTIGATING POLICE OFFICER ON WHAT HE ACTUALLY SAW OR HAD WITNESSED, OR DISCOVERED IN THE COURSE OF HIS WORK AS AN INVESTIGATOR CAN BE REGARDED AS HEARSAY EVIDENCE

On the appellant’s counsel’s submission that the testimony of PW3 was hearsay, I am also at one with the lower Court’s conclusion that such testimony as given by the PW3 was not and cannot be described as hearsay evidence. To my mind, all that the PW3 (IPO) did was to give evidence on what he actually saw or had witnessed, or discovered in the course of his work as an investigator. His testimony on what the appellant told him was positive and direct which was narrated to him by the appellant and other witnesses he came into contract with in the course of his investigation of the case. Evidence of an IPO is never to be tagged as hearsay. This Court in a plethora of its decided authorities had adjudged such evidence as direct and positive evidence and therefore not hearsay evidence. See Arogundade vs. The State (2009) All FWLR (pt. 469) (SC) 423 PER AMIRU SANUSI, J.S.C.

MEANING OF THE “DOCTRINE OF LAST SEEN” AND CIRCUMSTANCE UNDER WHICH IT CAN BE APPLIED

The doctrine, simply means that the law presumes that the person last seen with the deceased, bears full responsibility for his death, if it turns out that the person last seen with him is dead. See Godwin Nwakerendu & 3 Others (1973) 3 ECSLR (pt. II) 87; Nwaeze v. The State (1996) SCNJ 47 at 61/62. In the present case there, had been adduced at the trial, credible evidence that the deceased was last in company of the appellant. The statement of the witnesses and that of the appellant had shown that the appellant was in Cradle Hotel Owerri, with the appellant where the two of them spent the night previous to the date he was shot by the gun men who orchestrated and hatched the plan to eliminate the deceased by the appellant. Those pieces of evidence were never controverted or contradicted. On the morning of the day the deceased was shot, the PW2 came out when he heard the sound of the gunshots and saw the deceased in pains and the appellant tried to ran away until she was advised otherwise by him (PW2) whom the appellant accompanied, to take the deceased to the hospital for medical attention. The “Doctrine of Last Seen” is therefore applicable to the circumstance of the case as rightly applied by the trial Court and also rightly found/endorsed by the lower Court. PER AMIRU SANUSI, J.S.C.

DUTY INCUMBENT ON AN APPELLANT COMPLAINING OF CONTRADICTIONS IN THE EVIDENCE OF SOME OF THE PROSECUTION WITNESSES

The law is trite, that in an appeal Court, it is not enough for an appellant to show that there were contradictions in the evidence of some of the prosecution witnesses, but it must be shown that the trial judge did not consider those contradictions. In this instant case it is glaring from the record, that the learned trial judge had meticulously pointed out and addressed each of the alleged contradictions and commented on them item by item as would leave no one in doubt as to their effect or position and even none of the alleged contradictions was material or had been shown to have occasioned miscarriage of justice. It is settled law, as I said supra, that for contradiction to have any effect on the case of an accused person, it must be material, substantial and must relate unequivocally to the charge against the accused person. See State V. Abdulazeez (2008). PER AMIRU SANUSI, J.S.C.

JUSTICES

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria

AMIRU SANUSI Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria

Between

IJEOMA ANYASODOR Appellant(s)

AND

THE STATE Respondent(s)

AMIRU SANUSI, J.S.C. (Delivering the Leading Judgment): This appeal emanates from the judgment of the Court of Appeal, Owerri division (hereinafter referred to as “the lower Court or Court below”) delivered on 5th August, 2015 which heard an appeal against the judgment of High Court of Justice, Imo State (Trial Court) delivered on 28th September, 2011 and affirmed the judgment of that trial Court.

FACTS GIVING RISE TO THE APPEAL
The deceased Chibuike Nlemagwu was having amorous relationship with the appellant which lasted for three years before his death. The deceased had earlier promised to marry the appellant but the appellant later discovered that the deceased was already married with some children. She thereby became disenchanted and started to hatch a plan to kill him. On 27th March, 2009 the deceased, while driving on his way coming from his village called the appellant and arranged to have a date with her and she thereby saw that overture as an opportunity to execute her plan to eliminate the deceased. The unsuspecting deceased went and picked the appellant to Cradle Hotel Owerri, where both of them spent the night together.

Unknown to the deceased, the appellant had earlier planned with two hired-killers to execute her plan by positioning them where she would alight from the deceased’s car. Then, while on their way and on reaching the appointed place where she positioned the two hired killers and without any suspicion she asked the deceased to slow down in order to drop her. The two gun men/hired killers suddenly emerged and pounced on the deceased and shot him on his stomach and escaped.

On hearing the sound of gun shots, the PW2 having been alerted by the sound of the gun shots, came out and saw the deceased bleeding and crying for help. PW2 saw the appellant at the scene trying to escape too, but he pleaded with her not to run away and she agreed to stay and she accompanied him (PW2) in conveying the deceased to the hospital. The deceased later died after six days while on admission in the hospital. Police investigation later revealed that the appellant had hand in the dastardly murder of the deceased but merely brought the story of kidnap allegation just to cover up her involvement in the murder. After concluding its investigations, the police arraigned the

accused/appellant before the trial court on a charge of murder, contrary to Section 319(1) of the Criminal Code Cap 30 Vol. II, Laws of Imo State of Nigeria. The appellant pleaded not guilty to the charge. At the trial the prosecution called three witnesses to prove its case against the accused/appellant while the appellant testified on his own behalf at the trial. In the end, the trial Court in its consideration of the evidence, found that the prosecution, (now respondent) had proved its case against the accused/appellant and convicted and sentenced her to death.

Dissatisfied with the judgment of the trial Court, the appellant unsuccessfully appealed to the Court below which had affirmed the conviction and sentence of the appellant to death by the trial Court. Still not satisfied with the judgment of the Court below, the appellant further appealed to this Court against the lower Court’s judgment.

In keeping with the rules and practice applicable in this Court, Briefs of Argument were prepared by learned counsel, filed and exchanged. The appellant herein, filed a brief of argument on 5th October, 2015 settled by one Emeka O. Nwagwu Esq. The

appellant’s learned counsel also filed an Appellant’s Reply Brief on the 24th June 2016 after being served with the respondent’s brief. In its response, the Respondent filed its Respondent’s Brief of argument on 24th March, 2016 which was deemed filed on 9/11/2016. In the appellant’s brief of argument, a sole issue was identified for the determination of this appeal which said lone issue simply reads, thus: –
“Whether the prosecution proved the case of murder, contrary to Section 319(1) of the Criminal Code beyond reasonable doubt against the appellant.”

But in its brief of argument, four issues for determination were formulated by the respondent, as set out hereunder: –
(A) Whether prosecution witnesses PW1, PW2 and PW3 respectively are tainted witnesses
(B) Whether the lower Court was right in relying on the evidence of PW3, the Police IPO in dividing its judgment (sic)
(C) Whether the prosecution by circumstantial evidence proved the case of murder beyond reasonable doubt against the appellant, contrary to Section 319(1) of the Criminal Code.
(D) Whether the Doctrine of last seen raised by the prosecution is applicable in this

case.

SUBMISSIONS BY LEARNED COUNSEL ON ISSUES FOR DETERMINATION
The learned counsel to the appellant submitted that the feeble and the so called circumstantial evidence put forward by the prosecution did not meet legal proof and the value of evidence fell below the required standard. He submitted that PW1 & PW2 from their evidence and the extra judicial statements made in the trial, stand out as tainted witnesses who had common purpose to prosecute in the proceedings. He contended that the PW1 gave two versions of conflicting stories on how the investigation by PW3 was commenced. One version was that the police told her to go and bring the woman with her husband on the day of the incident who claimed to be his wife and that the police would not release the husband’s vehicle to her until she could establish that she is the real wife of the deceased.

The second version was that she wrote a petition to State CID for an investigation of the circumstances that led to his death since she was told that he was with a lady on the day of the incident. He argued that following from the above, the contradictory statement on oath which differs from the

extra judicial statement and the evidence of PW2, is that of a tainted witness whose joint mission was to incriminate the appellant and ensure that she was convicted and sentenced to death. He therefore submitted that a tainted witness is either an accomplice or a witness who has interest to defend or has a purpose to serve in a case in which he or she is called upon to give evidence as a witness. He argued further, that the evidence of PW1 and PW2 and their extra judicial statements reveal bias, hatred that these witnesses harboured against the appellant. He argued that the purported post humous discovery was too trivial to warrant PW3 to recommend that the appellant be charged for murder and that the PW3 did not properly investigate this matter but was in a premeditated mission to give weight to the prosecution’s case. He argued that the unsubstantiated finding of failure or promise of marriage in the mind of the trial Court, led to a miscarriage of justice and that the entire evidence of PW3 was hearsay as it was not the finding he made, pursuant to a proper investigation. He submitted that before a piece of evidence whether circumstantial or direct, can be

considered, it must be admissible and that no inference of guilt can be drawn from a purported circumstantial evidence which, as in the instant case, is inadmissible. He submitted that the evidence of PW3 contradicted the evidence of other prosecution witnesses and that the “doctrine of last seen” which the Court below relied upon, was inapplicable. He then urged the Court to resolve this issue in favour of the appellant and allow the appeal.

As I stated earlier, in response to the argument of the appellant, the respondent’s learned counsel formulated (4) four issues for determination.

ISSUE I
His issue No.1 deals with whether the prosecution’s witnesses PW1, PW2 & PW3 are tainted witnesses.
On the contention that the prosecution witnesses are tainted, he submitted that whosoever wants to discredit or contradict a witness does that at the trial Court and not on appeal. See Okoro v. State (2012) 1 SC (pt.1) 54. He submitted that once a statement of an accused person is tendered and admitted without any objection, the content of the said statement is conceded by the accused person as the truth of the facts of what had happened and no

amount of retraction can vitiate the weight to be attached to it. On the alleged poor investigation, he submitted that PW3 never stated in his evidence that he concluded his investigation in 2 days and this was never made an issue before the trial Court. He argued that even if the investigation by PW3 was concluded in 2 days, there is no law that gives a time frame as to when investigation can be concluded.

On the alleged contradiction in the evidence of PW3 when compared with that of PW2, he argued that the side of the rib where the deceased was shot was never made an issue before the trial Court hence such issue cannot be raised at this stage to discredit PW3’s evidence. He argued further, that even if the issue of contradiction as to which side of the rib was shot can be raised at this stage, it was not a material contradiction that can endanger or affect the case of the respondent.

On the alleged contradiction of the evidence of PW1 & and PW3 on the release of vehicle of the deceased, he argued that PW3 corroborated the evidence of PW1 that the car was released to the family by SARS.

On the evidence of PW3 as to what he found out from

his investigation, the learned counsel submitted that the PW3 stated in his evidence that he found out that the deceased promised the appellant marriage but failed to fulfil his promise and that was borne out of evidence, contrary to the claim by the appellant’s counsel in his argument. He referred to paragraph 2, page 56 of the record. He then urged this Court to hold that any objection to such evidence at this stage, will be inconsequential and will not hold water. He argued that when prosecution tendered the statement of the appellant before the trial Court on 13/4/11 through PW3, there was no objection from the appellant or his counsel who were both in Court. On how the evidence and statement of the appellant respectively introduced PW2 and the relationship of such evidence to the evidence of the respondent, he referred to the evidence of appellant at page 57 of the record and submitted that the appellant having introduced Obinna (the PW2) as the person who came to aid of the deceased person made him a vital witness and his evidence was and still relevant. He also referred to another evidence of PW2 on how he gave account of how he repeatedly went to the

hospital to see the deceased (see page 40 of the record). He also referred to the evidence of PW2, where PW2 stated that investigations revealed that the purported kidnap report or story concocted by the appellant was simply an attempt to cover up her involvement in the crime of murder of the deceased which prompted the police to release the PW1 and PW2 and detained the appellant whose facts were not controverted.

On the non tendering of letters of demand of case file, and absence of MR. Gold of SARS, PW3 stated that he asked Mr. Gold to send the case file used in investigation at SARS and he was told by the said Mr. Gold, that there was no case file and that the family of the deceased had recovered the vehicle of the deceased which was the only exhibit, which said piece of evidence was not objected to. He submitted that every submission of the appellant on the respondent witnesses, especially PW3, in respect of not-tendering of any letter to SARS, cannot be countenanced at this stage as it is too late in the day for it to be raised. He submitted that if the entire stories of the respondent are put together, they agree especially since the statement of

the appellant was admitted by the Court without objection from the appellant.

Issue No.3 deals with whether the prosecution by circumstantial evidence had proved the case of murder beyond reasonable doubt against the accused person now appellant.
The learned counsel for the respondent submitted that the evidence of PW1 and PW2 at pages 23 to 27 and pages 38 to 40 of the record respectively, show that the deceased was shot and it was the said gunshot sound that attracted PW2 to run out of his house to the scene and to then later rush the deceased to the hospital in company of the appellant whom he (PW2) persuaded to follow him.

On the contention of the appellant that the appellant cannot be criminally responsible because the deceased death was not instantaneous, he responded and submitted that the effluxion of six days, will not exculpate the appellant from the case of death of the deceased. He quoted and cited Section 314 of the Criminal Code Act. He submitted further, that where death follows the injury inflicted on the deceased and the fact of the injury is relied upon without medical evidence as circumstantial evidence of the case of death,

the injury if so well described clearly with surrounding circumstances, amount to prima facie proof of the case of death.

On the act of the appellant, he submitted that the action of the appellant circumstantially showed that she had earlier planned the murder of the deceased. He submitted further, that the act of the appellant irresistibly show that not only was the appellant in the centre of the planning of the murder, but she also caused the actual execution to succeed and by Sections 2 (b) and 7 (d) of the Criminal Code Act, the appellant is criminally liable for the murder of the deceased and was rightly found guilty of same by the trial Court in its finding, which said finding was rightly affirmed by the Court below.

On the doctrine last seen, he submitted that this means that the law presumes that the person who last seen with the deceased, bears full responsibility of his death. He cited several decided authorities one of which includes NWAEZE V. THE STATE (1996) 2 SCNJ 47 at 61-62 or 2 NWLR (pt.428) 1. He also referred to the evidence of PW2 at page 39 of the record and submitted that the above piece of evidence shows that the appellant

was the only one last seen with the deceased but admitted that it was she that caused the deceased to stop at the scene where he was shot. He submitted finally, that from the scenario in this case, the only reasonable inference or conclusion to be drawn from it, is that the appellant arranged for the murder of the deceased by procuring the two men who executed same. He urged this Court to dismiss the appeal of the appellant in its entirety.

REPLY OF THE APPELLANT
I have carefully studied the Appellant’s Reply Brief which to my observation is replete with facts and issues that have already been canvassed in the appellant’s brief of argument. It is mere repetition and fine tuning of the arguments proffered in his main Brief of argument. It is therefore not worth being called a Reply brief, legally and properly so called, hence I unhesitatingly discountenance it for whatever it is worth.

It is trite law that the burden of proof in criminal cases is always on the prosecution which must prove all the elements of the offence charged in order to secure conviction of the accused person. See Section 138(1) of the Evidence Act Cap 112 Laws of the

Federation of Nigeria 2004 (as amended). See also the cases of Duru v. The State (1993)3 NWLR (pt.281) 290; Amadi vs Federal Republic of Nigeria (2008) 12 SC (pt. III) 55; Abdullahi Vs State (2008) 5-6 SC (pt. 1) 1. The prosecution also has the onus to prove the guilt of the accused person beyond reasonable doubt through credible and reliable evidence in proof of the case against the accused person. The burden therefore, does not shift. This is borne out from the fact that our Constitutions had entrenched adequate provisions to the effect that an accused person is always presumed innocent until he was otherwise proved to have committed that offence. Therefore, once the prosecution succeeded in proving the elements or ingredients of the offence or offences, the burden thereupon, shifts to the accused person to prove that he was not responsible in committing the offence(s) charged. If he succeeds in doing so, the trial Court then must acquit the accused person promptly.

This Court in a plethora of its decided authorities had approved or endorsed three methods or modes of proof in criminal cases which include the followings: –
(a) Evidence of eye

witness or witnesses account who had witnessed the commission of the offence(s) by the accused person charged.
(b) Through confessional statement of the accused made voluntarily by the accused wherein he categorically owned up the commission of the offence by him.
(c) Through circumstantial evidence.
See Emeka v. State (2001) 6 SC 227 or (2001) 14 NWLR (pt.734) 666; Ohunyon v. State (1996) 3 NWLR (pt.436) 264; Bright Chibuike & Anor vs. The State (2010) LPELR – 3911; Igri v. The State (2010) 7 WRN 47; Ogba v. State (1992) 2 MLR (pt.222) 146.

In this instant case, there was no eye witness called by the prosecution to testify in the case of murder charge it framed against the accused/appellant. Also, there was no confessional statement of the accused tendered at the trial of the accused/appellant before the trial Court. The prosecution (now respondent), simply relied on circumstantial evidence to prove the case of murder against the appellant.

In order to prove the offence of murder against an accused person, the prosecution has the onus to establish beyond reasonable doubt, the following ingredients of the offence, namely: -<br< p=””

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(i) That the death of a human being was caused
(ii) That it was caused by the act of the accused; and
(iii) That the act or acts was/were done with the intention that death was to be caused; or
(iv) The accused knew that death would be the probable consequence of his act or acts.
See Sunday Omini vs. The State (1999) 12 NWLR (pt.630) 68 or (1999) 9 SC 1 or (1999) LPELR 2638 SC.

The prosecution, as I state supra, relied heavily on circumstantial evidence in proof of its case which the learned trial judge in his judgment had stated thus: –
“In the light all that I stated, I hold that the prosecution (sic) have by circumstantial evidence proved the case against the accused person reasonable doubt (sic). I find the accused guilty as charged.”

As I stated supra, in this instant case, the prosecution (respondent) relied heavily on circumstantial evidence to prove its case against the appellant at the trial Court since there was no eye witness to the murder of the deceased. In the case of Taylor & 7 others Vs R 21 Cr App R 20 at page 21, Lord Lord Hewart, Lord Chief Justice of England described circumstantial evidence as

follows: –
“It is evidence of surrounding circumstances which by undersigned coincidence is capable of proving on proposition with the accuracy of mathematics.”
See alsoThe State v. Ogbubunjo (2001) 1 SCNJ 102; Udoebere v. The State (2001) 6 SCNJ 70. Circumstantial evidence is as good and sometimes even better than any other sort of evidence and what is meant by it is that there is a number of circumstances which are accepted so as to make a complete and unbroken chain of evidence. If that is established to the satisfaction of the trial Court, it may properly act upon such circumstantial evidence. See Olutola v. The State (2009) 2 SCNJ 135. I must however add here, that the nature of circumstantial evidence that a trial Court will consider and act on in order to convict an accused person must be cogent, complete, unequivocal and compelling leading to the irresistible conclusion that it was the accused under trial and no other person, was responsible in committing the offence charged. See cases of Peter Eze v. The State (1976) 1 SC 125; Uwe Ideghi Esai and Others vs. The State (1976) 11 SC 39. Similarly, the circumstantial evidence to be used in

convicting an accused must also be incompatible with the innocence of the accused.

The learned counsel for the appellant described PW1 and PW2 as “tainted witnesses” and suggested that the trial Court should not have relied on their testimonies to convict the appellant. The law is trite that a ‘tainted witness’ is a witness who is either an accomplice or by the evidence he gives, whether as prosecution witness or for the defence, may and could be regarded as having some purpose to achieve or purpose of his own to serve. See FBN PLC vs. Nwankwocha (1998) 5 NWLR (pt.551) 610; Okoro v. State (1998) 4 NWLR (pt.584) 181; Nwosu vs. State (2006) 11 NWLR (pt. 992) 458.

The learned justices of the lower Court had in their judgment extensively recast the testimonies of PW1 and PW2 at the trial Court before they arrived at the conclusion set out hereunder at pages 276 and 277: –
“The trial judge who had the rare opportunity of watching their respective demeanour and hearing them testify in open Court ascribed probative value to their testimonies and the Learned Counsel for the Appellant highlighted any aspect of their evidence that has not highly betrayed

them as tainted witnesses notwithstanding the fact that the PW1 was the wife of the Deceased who was murdered in cold blood and PW2 Obinna Ucheghulam of Umunahu Uratta, Owerri North is even from the same community with the Appellant.
If the PW2 were to be biased, he should have been in favour of the Appellant who is his kinswoman. Accordingly, I shall discountenance the submissions of the Learned Counsel for the Appellant on the question of the PW1 and PW2 being tainted witnesses as he even conceded that the bias was not because of relationship but because they wanted to secure vendetta and conviction by all means which he has not substantiated. Accordingly, the evidence of the PW1 and PW2 were not tainted or replete with doubts, bias, partiality, abuses, jeers, sentiments, hatred, speculation and very suspicious hearsay, as purported by the learned Counsel for the Appellant. Rather their evidence were cogent, compelling, consistent and as shall be demonstrated anon, was corroborative of the evidence of the Appellant both extra-judicially and on oath, that the surrounding circumstances of the case by undersigned coincidence were/are capable of proving

with mathematical exactitude and led to the irresistible inference that the Appellant was not innocent of the murder of the Deceased as reasonably and unassailably inferred by the Learned trial judge in convicting the Appellant of murder.”

With the greatest respect to the learned Counsel for the Appellant, the authorities of Aje V. The State (2006) 2 FWLR at 3427 para E-F and Obidike V. The State (2001) 17 NWLR (pt.743) 601; were cited out of con as they are not applicable to the facts and circumstances of this case.

I am in entire agreement with the above observation of the lower Court which had rightly reflected the finding of the trial Court which held that the said witnesses were not tainted witnesses as the learned counsel for the appellant had described them or had taken them to be. The trial Court was therefore right in relying and acting on their testimonies.

evidence on what he actually saw or had witnessed, or discovered in the course of his work as an investigator. His testimony on what the appellant told him was positive and direct which was narrated to him by the appellant and other witnesses he came into contract with in the course of his investigation of the case. Evidence of an IPO is never to be tagged as hearsay. This Court in a plethora of its decided authorities had adjudged such evidence as direct and positive evidence and therefore not hearsay evidence. See Arogundade vs. The State (2009) All FWLR (pt. 469) (SC) 423.

There is no iota of doubt that from the testimonies of PWs 1, 2, and 3 that the deceased person died. Even though there was no medical report or autopsy certificate tendered at the trial by the prosecution, the evidence of the accused/appellant had also established the death of the deceased even from the surrounding circumstances of the case. Evidence also abound that the deceased died following the gun shots fired on him by the two gun men who were hired or employed to execute the dastardly act of murder of the deceased by the appellant herein.

Again, the learned counsel for

the appellant submitted that the trial Court was wrong in partly relying on the “Doctrine of Last Seen” in convicting the accused/appellant and the endorsement of the finding of the trial Court by the lower Court. The question is that “Does the doctrine of last seen” apply in this instant case. The doctrine, simply means that the law presumes that the person last seen with the deceased, bears full responsibility for his death, if it turns out that the person last seen with him is dead. See Godwin Nwakerendu & 3 Others (1973) 3 ECSLR (pt. II) 87; Nwaeze v. The State (1996) SCNJ 47 at 61/62.
In the present case there, had been adduced at the trial, credible evidence that the deceased was last in company of the appellant. The statement of the witnesses and that of the appellant had shown that the appellant was in Cradle Hotel Owerri, with the appellant where the two of them spent the night previous to the date he was shot by the gun men who orchestrated and hatched the plan to eliminate the deceased by the appellant. Those pieces of evidence were never controverted or contradicted. On the morning of the day the deceased was shot, the PW2 came out when he

heard the sound of the gunshots and saw the deceased in pains and the appellant tried to ran away until she was advised otherwise by him (PW2) whom the appellant accompanied, to take the deceased to the hospital for medical attention. The “Doctrine of Last Seen” is therefore applicable to the circumstance of the case as rightly applied by the trial Court and also rightly found/endorsed by the lower Court.

Also, the learned counsel alleged that there were contradictions in the testimonies of prosecution witnesses, for instance on the followings: –
(i) That PW1 stated she was in possession of the deceased car as opposed to when the appellant claimed otherwise.
(ii) That PW1 showed the sequence in how the deceased vehicle was released to her.
(iii) On the mode of arrest of the appellant as testified by PW3

I have closely considered the points which the appellant’s learned counsel cited as examples of contractions in the testimonies of the prosecution witnesses. I am not however convinced that those alleged contradictions even if, they might be called so, were not material contradictions as would affect the veracity of their

testimonies before the trial Court.

The law is trite, that in an appeal Court, it is not enough for an appellant to show that there were contradictions in the evidence of some of the prosecution witnesses, but it must be shown that the trial judge did not consider those contradictions. In this instant case it is glaring from the record, that the learned trial judge had meticulously pointed out and addressed each of the alleged contradictions and commented on them item by item as would leave no one in doubt as to their effect or position and even none of the alleged contradictions was material or had been shown to have occasioned miscarriage of justice.
It is settled law, as I said supra, that for contradiction to have any effect on the case of an accused person, it must be material, substantial and must relate unequivocally to the charge against the accused person. See State V. Abdulazeez (2008).
In this present case, the alleged contradictions were not material and substantial to the offence the appellant stood trial on at the trial Court. The lower Court had therefore rightly found that they had no effect on the trial. Moreover, some of the

alleged contradiction regarded as material by the appellant’s learned counsel were even not raised at the trial Court but only on appeal before the lower Court.

It is noted by me, that the lower Court in its judgment cited several attitudes or behaviour of the appellant which went a long way in making the trial Court to draw some inferences to convince it that there was strong circumstantial evidence establishing the guilt of the appellant with regard to the commission of the crime. Those pieces of evidence in my view had strengthened or buttressed the belief of the trial Court that the appellant was obviously culpable and had actually organised or planned the elimination of the deceased through the aid of the two gun men hired by her to murder him. I also have no slightest doubt in the finding of the lower Court on that. I hold that there was strong circumstantial evidence adduced by the prosecution in proof of the offence of murder against the appellant herein, and hold that he was rightly convicted by the trial Court on the proof of the murder charge made against her by the respondent which was established beyond reasonable doubt. The lower Court was

also right in affirming the judgment of the trial Court, convicting and sentencing the appellant to death.

In the result, it is my judgment that this appeal is devoid of any merit. It therefore fails and is accordingly dismissed by me. The judgment of the lower Court which had affirmed and endorsed the judgment of the trial Court convicting the appellant of the offence of murder, is hereby further affirmed by me. Appeal dismissed.

OLABODE RHODES-VIVOUR, J.S.C.: I have had the benefit of reading in draft the leading judgment of my learned brother, Sanusi JSC. I agree with his lordship that concurrent findings of fact by both Courts below are correct. The facts have already been set out in the leading judgment and need not be repeated except to observe that the facts of this case reminds one of the adage that hell hath no fury like a woman scorned. The promise by the deceased to marry the appellant went un-kept. The appellant arraigned with two men to put an end to the life of her lover (deceased). The deceased was shot by one of the men in the presence of the appellant. The appellant was convicted on circumstantial evidence.

Her conviction was affirmed by the Court of Appeal.

There is always strong possibility that circumstantial evidence may be fabricated, so before a trial Court relies on it to convict an accused person it must be narrowly examined. The Court must be satisfied that the evidence is direct and must lead unequivocally and indisputably to the guilt of the appellant.
Circumstantial evidence must be cogent, complete and unequivocal. Where circumstantial evidence is deficient the accused person may be entitled to an acquittal. See
Usman v. State (2014) 5 SC (pt. i) p. 61.
Udor v. State (2014) 5-6 SC (pt. ii) p. 177.

Circumstantial evidence which both Courts below accepted and which this Court accepts is that the appellant intended to cause the death of her lower (the deceased) by hiring two assassins to put end to his life, and they did put an end to his life. I find the testimony of PW1 and PW2 to be cogent, direct, and leads unequivocally to the guilt of the appellant.
For these brief reasons as well as those more fully given by my learned brother, Sanusi JSC I would also dismiss the appeal.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with

the judgment just delivered by my learned brother, Amiru Sanusi JSC and to record that support of the reasoning I shall make some remarks.

This appeal was brought by the appellant against the judgment of the Court of Appeal or Court below or lower Court, Coram: I. I. Agube, I. G. Mbaba and P. O. Ige JJCA which on 5/8/15 dismissed her appeal and affirmed her conviction on 28/9/11 by the High Court of Imo State, sitting in Owerri per C. M. I. Egole on a one count charge of murder brought by information of the Attorney General of Imo State.

FACTS BRIEFLY STATED
The deceased in this case, Chibuike Nlemaguru while alone entered an amorous relationship with the appellant which lasted 3 years and in the course of it, the deceased promised to marry the appellant but failed to fulfill that promise to the appellant who found out that the deceased was married with children. The appellant did not let on that she knew of deceased’s marital status. On the 27/3/09 while coming back from his village, Umuneke in Njaba Local Government Area of Imo State to Owerri called the

appellant asking her to go out with him and she asked him to call him later. The deceased later came and took the appellant in his Spider car to Cradle Hotels where they spent the night together.

The case of the prosecution is that the next day, the deceased on the prompting of the appellant used his car to carry her (the appellant) to drop her at her village home in Umunahu Uratta but when they got close to Umunahu Primary School where the appellant “positioned” the 2 men she contracted to murder the deceased, she asked the deceased to drop her on her sighting the men.

Without any suspicion and not foreseeing danger, the deceased slowed down his Toyota Spider Car, started pulling up to drop the appellant when the 2 men emerged and shot the deceased by the side of the stomach and escaped.
The sound of the gun shot attracted Pw2 who came out, saw the deceased alive but bleeding and calling for help while the appellant then with him attempted to abandon him and escape.

It was the PW2’s persuasion that made the appellant to change her mind and accompanied him (PW2) in taking the deceased to hospital.
At the hospital, the PW2 left the

deceased with the appellant and went to collect medical papers demanded by the hospital personnel from the police to permit their treatment of the deceased but before she could come back to the hospital the appellant had escaped with the deceased’s bag.
The deceased died in the hospital 6 days after the incident.

After the burial of the deceased, the PW1 (wife of the deceased) went to the police (where the PW2 parked the car of the deceased) to recover same (deceased’ car) and was asked to first produce the appellant who had reportedly claimed before them (the police) that she was the wife of the deceased for them (the police) to ascertain who to release the car to. PW1 started to look for PW2 who would show him the appellant who she was asked to bring by the police.

PW1 on his way from Emekuku met the brother of PW2 who gave her the phone number of PW2 with which she was able to connect PW2 who took her to the family house of the appellant where they were informed that appellant had relocated to Ulakwo after the incident. When PW2 took PW1 to Ulakwo to enable her to confirm that she was the actual wife of the deceased, the appellant reported

them to the police accusing them, PW1 and PW2 as kidnappers who came to kidnap her, appellant and on the strength of the report PW1 and PW2 were arrested.
It was upon police investigation that the appellant was arrested, charged for the murder of the deceased.

The defence of the appellant is a denial of the offence. At the end of the trial, the appellant was convicted and sentenced for the offence of murder which on appeal was affirmed hence the present appeal.

On the 16th November, 2017 date of hearing, learned counsel for the appellant, Emeka O. Nwagwu Esq adopted her brief of argument filed on 5/10/15 and a reply brief of 24/6/16 and deemed filed on 9/11/16. In the appellant’s brief was raised a single issue which is as follows:
Whether the prosecution proved the case of murder contrary to Section 319(1) of the Criminal Code beyond reasonable doubt against the appellant.

Osita Chukwuemeka, learned Senior State counsel of the Imo State Ministry of Justice for the respondent adopted the brief of the respondent filed on 24/3/2016 and deemed filed on the 9/11/16. He distilled four issues for determination which are as follows:

Whether prosecution witnesses PW1, PW2 and PW3 respectively are tainted witnesses.
2. Whether the lower Court was right in relying on the evidence of PW3, the Police IPO in deciding its judgment.
3. Whether the prosecution by circumstantial evidence proved the case of murder contrary to Section 319 (1) of the Criminal Code beyond reasonable doubt against the appellant.
4. Whether the doctrine of last seen raised by the prosecution is applicable in this case.I shall make use of the issue as crafted by the appellant for its brevity and it really encapsulates all the nagging questions in this appeal.SOLE ISSUE
This asks whether the prosecution proved the case of murder contrary to Section 319(1) of the Criminal Code beyond reasonable doubt against the appellant.
Canvassing the stand of the appellant, learned counsel contended that the so called circumstantial evidence put up by the prosecution in this case did not meet legal proof and the value of the evidence fell below the required standard in a criminal trial of murder. He cited Musa Ikaria v. The State (2014) 1 NWLR (Pt. 1389) 639 at 651 & 669: Kim v. State (1992) 4

NWLR (Pt. 233) 17; Onubogu v. State (1974) 9 SC 1; Morka v. State (1998) 2 NWLR (Pt. 537) 294 etc.

That PW1 and PW2 from their evidence and extra-judicial statements made in the trial stand out as tainted witnesses who had a common purpose to prosecute in the proceedings. That the statements of PW1 and PW2 at the Police Station differed from their evidence in Court and showed they had an interest to defend. He relied on
Oguonzee v. The State (1998) 5 NWLR (Pt. 551) 521;
Ojo v. Gharoro (2006) 10 NWLR (Pt. 987) 173 at 209 – 210:
Ononoju v. State (2014) 8 NWLR (Pt. 1409) 345;
Aje v. The State (2006) 8 NWLR (Pt. 982) 345;
Obidike v. State (2001) 17 NWLR (Pt. 743) 601.

It was submitted for the appellant that the evidence of PW3 which the trial Court relied heavily upon to convict the appellant was hearsay evidence. That what was before the Court as circumstantial evidence was really suspicion and speculations which cannot translate to circumstantial evidence. He cited Udor v. State (2014) ALL FWLR (Pt.749) 1113 at 1120;
Ahmed v. State (2001) 18 NWLR (Pt.746) 622:
Teper v. R (1952) AC 480 at 489;
Pius Nweke v.

The State (2001) 4 NWLR (Pt.704) 588 at 603.

Learned counsel for the appellant contended that the Court should invoke Section 167 (d) of the Evidence Act, 2011 to hold that PW3 withheld evidence i.e. the extra-judicial statements of the deceased, PW2 and the appellant made at the SARS division of the Imo State Police Command and find in favour of the appellant. He cited National Salt Company of Nigeria Limited v. Mrs. M. J. Innis – Palmer (1992) 1 NWLR (Pt. 218) 422 at 345 per Tobi JCA (as he then was).

He stated that the “doctrine of last seen” is inapplicable in this appeal as it was raised by the Court below and counsel for appellant and respondent were not called upon to address the Court on it and thereby infringed on appellant’s right to fair hearing under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). He citedAdebayo v. PDP (2013) ALL FWLR (Pt. 695) 203 at 241; Iliyasu v. The State (2015) 11 NWLR (pt. 1469) 26 at 65: Ogedengbe v. State (2014) ALL FWLR (Pt. 752) 1724.

In response, learned counsel for the respondent stated that PW1, PW2 and PW3 were neither tainted nor biased but were rather vital,

reliable and honest witnesses who gave account of what happened the way they saw it. That to discredit or contradict such witnesses is to be done of the trial Court and not on appeal. He cited Okoro v. State (2012) 1 SC (Pt. 1) 54.

That the extra – judicial statement of the appellant was admitted without objection from her and so to later retract from that statement would not defeat or vitiate weight to be attached to it. He referred to Ikemson v. The State (1989) 3 NWLR (Pt. 110) 455: Section 232 of the Evidence Act, 2011: Balogun v. A. G. Ogun State (2002) 6 NWLR (pt. 763) 512.

Learned counsel for the respondent submitted that the appellant and counsel did not raise the issue of some of the witnesses being tainted at the trial and it becomes too late to bring that up at this stage and so the Court should discountenance the assertion of tainted witnesses. He cited Sections 131, 132 and 233 of the Evidence Act 2011: Arisa v. The State (1988) 3 NWLR (Pt. 83) 386; Okosi v. The State (1989) 1 ACLR 281 at 295.

That the statement of prosecution witnesses and Police investigation report which are not tendered cannot be used to contradict the

prosecution witnesses as they are not evidence properly adduced at the trial and so not legal evidence. He referred toNwabueze v. The State (1988) 4 NWLR (Pt. 86) 16; Esangbedo v. The State (1989) 4 NWLR (Pt. 113) 57.

It was stated for the respondent that there were no material contradictions in the testimonies of the prosecution witnesses such as to vitiate the case of the respondent. That the effluxion of time of six days between the time the deceased was shot and the time of his death will not exculpate the appellant from the cause of the death. He cited Adamu v. Kanu N. A. (1956) 1 FSC 25; Ilori v. State (1998) 1 ACLR 267 at 279: Ogbu v. State (2007) ALL FWLR (Pt. 361) 1651 at 1674: Section 314 of the Criminal Code Act.

That the prosecution proved its case beyond reasonable doubt and the doctrine of last seen is applicable.

Learned counsel for the appellant has sought to discredit the witnesses of the respondent that is PW1, PW2 and PW3 labeling them non eye-witnesses to the incident and being biased and tainted. This stage is way too late in the day for such posturing as that process of discrediting a prosecution witnesses is not in the

address of counsel or the brief of argument but is down the line at the trial Court during cross-examination and possibly a countering evidence to debunk whatever the prosecution witnesses had placed in evidence including the statements the witness made to the police admitted in evidence but certainly not on appeal as appellant is doing now. See Okoro v. State (2012) 1 SC (Pt. 1) 54: Balogun v. A. G. Ogun State (2002) 6 NWLR (Pt. 763) 512: Section 232 Evidence Act 2011.

Also needing to be said is that the appellant labors in vain to now attempt to re-write or restructure the contents of his extra-judicial statement when he allowed the statement be tendered without objection at the trial Court and the forum cannot be in the brief of argument of the learned counsel for the appellant. See Ikemson v. The State (1989) 3 NWLR (pt. 110) 455.

It has to be pointed out that raising the issue of the prosecution witnesses as tainted ought to have been of the time of cross-examination of the said witnesses or the production of evidence which would prove that the witnesses so said is tainted and all that during the trial and not after. From the record, there is no

where a glimmer of such a suggestion occurred. Also none of the extra-judicial statements of the respective witnesses were used to contradict their evidence in Court or to buttress the suggestion of the bias or tainting now being touted. Again to be said is that the said extra-judicial statements were not even tendered and also the Police investigation report and so they are not evidence properly before Court and are therefore no use to contradict the evidence of the prosecution witnesses and are not legal evidence. The appellant is estopped from making reference to those non legal evidence or to impugn the witnesses by calling them tainted and biased or to discredit them. I place reliance on
Section 131, 132 and 233 of the Evidence Act 2011:
Arisa v. The State (1988) 3 NWLR (Pt. 83) 386;
Okoro v. State (supra);
Okosi v. The State (1989) 1 ACLR 281 at 295:
Nwabueze v. The State (1988) 4 NWLR (pt. 86) 16:
Esangbedo v. The State (1989) 4 NWLR (Pt. 113) 57.

The appellant had sought to wriggle out of blame on the ground that the death of the deceased was not instantaneous as there was an effluxion of time of six days

between the time of the shooting of the deceased to the time of his death. A reference to Section 314 of the Criminal Code Act would offer the necessary guide as it is therein provided thus:
Section 314 –
“A person is not deemed to have killed another if the death of that other person does not take place within one year and a day of the cause of death.”
Clearly the appellants action for which she stood trial and got convicted is not covered under Section 314 of the Criminal Code Act. The situation such as the present had been appropriately explained by this Court in the case of Aiguoreghian & Anor v. The State 17 NSQR 442 at 487 per Niki Tobi JSC thus:
“In determining the cause of death, the duration between the suspected act of the death (i.e. the Actus Reus) and the death is not important. Accordingly, an accused could be guilty of the offence of murder or manslaughter even if the duration is long in so far as the Court comes to the conclusion correctly that the act of the accused caused the death of the deceased, a conviction and sentence will be proper in law……..what is important is that there must be evidence that the act of the

accused resulted in the death of the deceased.”

For a fact, the prosecution/respondent properly executed the duty laid upon it for proof beyond reasonable doubt of the charge of murder against the appellant, whose evidence in defence just could not hold water nor could dent the rock solid evidence both direct and circumstantial against her who masterminded the dastardly act and made sure it was carried out with the attempt she made to cover up her tracks. That she did not do the shooting personally does not exculpate her for the main offence as Section 7 of the Criminal Code sees to that.
I shall recast the provisions of that law thus:
Section 7 –
“When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say:
(a) Every person who actually does the act or makes the omission which constitutes the offence:
(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence:
(c) Every person who aids another person in

committing the offence:
(d) Any person who counsels or procures any other person to commit the offence.”

From the foregoing and the fuller reasoning in the lead judgment, I see no merit in his appeal which I too dismiss as I abide by the consequential orders made.

CLARA BATA OGUNBIYI, J.S.C.: I have had the privilege to read in draft the lead judgment of my learned brother Sanusi, JSC. I agree that the appeal lacks merit and should be dismissed.

For purpose of emphasis, I seek to add a few words of mine. The entire conviction by the two lower Courts was centered on circumstantial evidence, which the law is well settled that once it is satisfactorily and irresistibly established, are sufficient to ground conviction.

The witnesses PW1, PW2 and also PW3, (the IPO) are squarely evident on their evidence before the trial Court and they were not debunked by the appellant. I say further that although the appellant sought to impute allegation of contradiction in the prosecution’s case, such has not been substantiated and therefore is not founded. The submission, to that extent is hereby discountenanced.

learned brother has adequately dealt with the appeal comprehensively in his lead judgment and I adopt same as mine. I find no merit in this appeal and I also dismiss same in terms of the lead judgment.

SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead judgment of my learned brother Amiru Sanusi, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add. The appeal lacks merit and it is accordingly dismissed.

Appearances:

Emeka O. Nwagwu, with him, Chidinma C. Uchechukwu and Nnamdi I Nwagwu For Appellant(s)

Osita Chukwuemeka, Senior State Counsel, Imo State Ministry of Justice For Respondent(s)

Appearances

Emeka O. Nwagwu, with him, Chidinma C. Uchechukwu and Nnamdi I Nwagwu For Appellant

AND

Osita Chukwuemeka, Senior State Counsel, Imo State Ministry of Justice For Respondent

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