NWAZUFU v. STATE (2020)

NWAZUFU v. STATE

(2020)LCN/14240(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Monday, June 29, 2020

CA/E/108C/2018

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

MATHIAS NWAZUFU APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

EVIDENCE LAW: THE BURDEN IS ON THE PROSECUTION TO PROVE HIS CASE BEYOND REASONABLE DOUBT

The law is long settled that in a criminal trial, the prosecution is duty bound to prove his case beyond reasonable doubt. This is the import of Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which presumes an accused innocent until he is proven guilty. The burden placed on the prosecution is not discharged until the guilt of the accused person is properly established. See IDEMUDIA V. THE STATE (1999) 7 NWLR (Pt. 610) 202 at 215 F-G; ESANGBEDO V. THE STATE (1989) 4 NWLR (Pt. 113) 57. PER UMAR, J.C.A.

FACTORS TO ESTABLISH THE OFFENCE OF MURDER

It has been established in an imprimatur of judicial authorities that to secure a conviction for the offence of murder, the prosecution is duty bound to prove the following ingredients beyond reasonable doubt:
1. That the death of the human being has actually taken place.
2. That the death was caused by the accused.
3. That the act was done with the intention to cause death or that the accused knew or had reason to know that death should be the probable and not only the likely consequence of his act.
See the case of OKEREKE V. THE STATE (2016) LPELR – 40012 (SC). PER UMAR, J.C.A.

MEANS BY WHICH THE PROSECUTION CAN PROVE ITS CASE AGAINST AN ACCUSED PERSON

The law is settled that the prosecution can prove its case against the accused person by all or any of the following means:
a) Evidence of any eye witness of the crime;
b) Confession or admission when voluntarily made by the accused; and
c) Circumstantial evidence which is positive, compelling and points to the conclusion that the accused committed the offence.
See the case of OJO V. STATE (2018) LPELR – 44699 (SC). PER UMAR, J.C.A.

THE LEGAL CONSEQUENCES OF UNCHALLENGED EVIDENCE

On the legal consequences of unchallenged evidence, the Supreme Court, Per Mohammed J.S.C. in the case of KOPEK CONSTRUCTION LTD. V. EKISOLA (2010) LPELR – 1703 (SC), held as follows:
“I think the law is certain that where evidence before a trial Court is unchallenged, it is the duty of that Court to accept and act on it as it constitutes sufficient proof of a party’s claim in proper cases…”. PER UMAR, J.C.A.

WHETHER OR NOT IMMATERIAL DISCREPANCIES AFFECT THE SUBSTANCE OF A CASE

The law is trite to the effect that some immaterial discrepancies do not affect the substance of a case. A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not when there is just a minor discrepancy between them. Two pieces of evidence contradict one another when they are themselves inconsistent. A discrepancy may occur when a piece of evidence stops short of, or contains a little more than what the other evidence says or contains some minor differences in detail. It is only material contradictions that are to be considered. SeeNWANKWOALA V. FRN (2018) LPELR – 43891 (SC). PER UMAR, J.C.A.

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Ebonyi State in the Abakaliki Judicial Division, delivered by Honourable Justice John Igboji on the 29th day of June, 2018 wherein the learned trial Judge found the Appellant guilty of the offence of murder and sentenced him to death by hanging.

BRIEF FACTS OF THE CASE
The Appellant and 6 others were charged on one count information of murder contrary to Section 319 of the Criminal Code, Cap 30 Vol. II, Laws of Eastern Nigeria 1963 as applicable to Ebonyi State. The Appellant pleaded not guilty to the offence charged and in a bid to discharge the burden of proof imposed on it by law, the Respondent called six witnesses. The case of the Respondent at the trial Court was that the deceased (one Chukwuma Ere) and the Appellant were of the same village i.e. Efunagu Ezza Inyimegu in Nnodo Development Centre, Abakaliki Local Government Area of Ebonyi State. That the deceased was the village head and that upon expiration of the deceased’s tenure, he handed over to One Julius Oruta as the new village head. The Respondent through its

witnesses stated further that the new village head upon assumption of office forcefully took over the deceased’s personal lands and immediately allocated them to his loyalists who quickly erected some make-shift structures on the lands.

It is the case of the Respondent that the acts of the new village head and his loyalists made the deceased seek redress at the Ebonyi State High Court sitting in Abakaliki wherein judgment was entered in favour of the deceased. That being dissatisfied with the decision of the Court in the deceased’s suit against them, the Appellant and his accomplices unlawfully entered the deceased’s land and set fire on the deceased’s farm. That the fire escalated and gulped one of the make-shift structures.

It is the case of the Respondent that the police visited the scene and unmindful of the presence of the two policemen at the scene, the Appellant and his accomplices overpowered the police, pounced on the deceased and beat him severally with sticks and iron rods until he died. That the Appellant and others took the deceased’s corpse to the village playground and mockingly cut in pieces the remains

of the Deceased and apportioned the pieces of his flesh to the existing kindred units in the village. The Respondent’s witnesses stated further that each kindred unit collected her portion and ceremoniously dropped same in a wheel barrow the assailants got from the deceased’s farm and that the collations were later set ablaze. Upon the close of the Respondent’s case, the Appellant testified in his defence wherein he denied the charge brought against him. At the close of trial and final addresses of counsel, the learned trial Judge in a considered judgment delivered on the 29th day of June, 2018, found the Appellant guilty as charged and sentenced him to death by hanging. (See pages 154 – 164 of the record of appeal).

Dissatisfied by the decision of the trial Court, the Appellant invoked the appellate jurisdiction of this Court vide a Notice of Appeal dated 30th July, 2018. The said Notice of appeal containing four grounds of appeal can be found at pages 165 – 168 of the record of appeal.

In line with rules of this Court, parties filed and exchanged their respective briefs of argument. The Appellant’s brief of

argument is dated 21st March, 2019 and filed on 25th March, 2019. The Appellant also filed a Reply Brief dated 21st May, 2020 and filed on the same date. Both Briefs were settled by B. C. UZUEGBU ESQ. who at page 5 of the Appellant’s brief formulated three issues for the determination of the appeal to wit:
“1. Whether the trial Court was right when it held that the prosecution proved the offence of murder against the appellant beyond reasonable doubt through cogent and credible evidence as required by law?
2. Whether the learned trial Court was right when it failed to accord the benefit of doubt to the appellant considering the manifest inconsistencies and contradictions in the evidence of prosecution witness but rather shifted the burden of proof of innocence when it relied heavily on the inconsistencies and contradictions in the case.
3. In view of the fact that the alleged corpse of the deceased was not seen in this case that was reported to the police as a case of kidnapping, did the presumption of death from seven years as provided by Section 164(1) of the Evidence Act, 2011 not avail the appellant of the offence when he was

charged less than one year after the alleged kidnap.”

The Respondent’s brief on the other hand is dated 15th May, 2020 and filed on the 20th day of May, 2020. The said Brief was settled by I. I. ALOBU, ESQ., DIRECTOR OF PUBLIC PROSECUTIONS, EBONYI STATE who at paragraph 3.0 of the Respondent’s briefs also formulated three issues for the determination of the appeal as follows:
“1. Whether the prosecution successfully proved its case beyond reasonable doubt as to have warranted the conviction of the appellant;
2. Whether the presumption of death from seven-year absence inures in favour of the Appellant in the face of the avalanche of evidence underscoring his culpability in the murder of the Deceased; and
3. Whether the prosecution’s case was froth with contradictions as to have warranted the acquittal of the Appellant by the trial Court.”

The appeal was heard on 1st June, 2020 wherein counsel to the parties adopted their respective briefs and made oral adumbrations in respect of their postures in the appeal.

APPELLANT’S ARGUMENTS
On issue No. 1, it is the submission of counsel that

to establish the offence of murder, it is the duty of the prosecution to prove the following ingredients beyond reasonable doubt:
a. That the deceased died
b. That it was the unlawful act or omission of the Appellant which caused the death of the deceased.
c. That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.

It is the submission of counsel that the prosecution must satisfy the above requirements through credible evidence. He submitted further that it is dangerous to go by what PW1 said in evidence because police investigators and the prosecution are in agreement that the incident that led to the kidnap of the deceased and his disappearance dovetailed to the activities of an angry mob action of disorderly villagers. He referred the Court to the evidence of PW4 at page 101 of the record of appeal. He submitted that the evidence of prosecution witnesses did not establish the ingredients of the offence charged beyond reasonable doubt.

On issue No. 2, it is the submission of counsel that the case of the

Respondent’s witnesses was embedded with inconsistencies and contradictions and that the trial Court resolved at page 55 of the record of appeal that PW1 admitted under cross examination that his evidence in Court differed from his extra judicial statement to the police. He submitted further that the trial judge at page 157 of the record of appeal held that “PW4 added that he cannot say what happened to the complainant/deceased as he had to run for his life and further, that he never saw the said complainant/deceased again after the incident.”

Counsel submitted that there is no proof as to where the corpse of the deceased was and that one version of the Respondent’s case was that the deceased was beaten and taken away that another version was to the effect that he was butchered. He submitted further that despite the contradictions in the case of the prosecution, the learned trial Judge took up the doctrine of last seen as a hanger with which its decision was anchored. This according to counsel was imputing on the Appellant to prove his innocence. He referred this Court to the cases of FOLARIN V. THE STATE (1987) 3 NWLR (pt. 371)

31; ONAFOWOKAN V. THE STATE (1987) 8 NWLR (pt. 52) 658.

Counsel argued that where there is contradiction on any material issue as manifested in the instant case, the trial Court has a duty not to pick which to believe but must discountenance all the evidence and resolve the benefit of any doubt in favour of the Appellant.

On the third and final issue distilled by the Appellant, counsel submitted that at page 2 of the record of appeal, the information disclosed that the date of the arraignment of the appellant was on 7th day of April, 2008 and that this is less than one year period as at the time the offence was committed. Counsel referred this Court to Section 164(1) of the Evidence Act, 2011 and submitted that the only fact that is discernible was that the deceased was kidnapped. He submitted further that the deceased had been missing as at the time the charge was drawn and the Appellant was docked. Counsel submitted that as at the time of arraigning the Appellant in the circumstances where the corpse was not seen, it is conclusive in law that he was presumed to still be alive. He submitted further that a charge of murder in respect of a person that

the law presumes to be alive has no feet on which to stand. It is the submission of counsel that unless a person has not been heard from for seven years in the circumstances stipulated by Section 164(1) of Evidence Act, he cannot be said to be dead. It is the submission of counsel that when a person is kidnapped and his corpse is not seen; for the seven years that he is in disappearance, no charge of murder can be validly set up against the Appellant. It is submitted that since there are different accounts as to the where about of the deceased and that since his body was not found, the prosecution ought to have waited for a period of seven years as envisaged by Section 164(1) of the Evidence Act before arraigning the Appellant or any other person for a case of murder. On the whole, he urged this Court to allow the appeal and to discharge and acquit the Appellant.

RESPONDENT’S ARGUMENTS
On issue No.1 distilled by the Respondent, counsel submitted that during the event that culminated in the gruesome murder of the deceased, PW1, PW2, PW3 and PW4 were all present at the scene of crime and by their direct evidence, the Appellant was at the scene

of crime wherein he and his cohorts apprehended the deceased, beat him to death with sticks and iron rods and later burnt the deceased’s body to ashes. Counsel referred this Court to the testimony of PW1 at page 8 – 9 and 68 – 69 of the record of appeal. Counsel submitted that the evidence of the PW1 to the effect that the Appellant was one of the killers of the deceased was corroborated by the evidence of the PW2. He referred this Court to the testimony of PW2 at page 75 and of the record of appeal.

Counsel submitted that the uncontradicted evidence of PW1, PW2, PW3 and PW4 established the death of the deceased and that even if the body of the deceased was not found soon after he was killed, a verdict of conviction could still have been properly made in the absence of the corpus delicti where there is a strong and direct evidence as in the instant appeal. He referred this Court to the case ofEDIM V. THE STATE (1972) 4 SC 160 @ 162. He submitted further that non-recovery of the body of the deceased which was burnt to ashes after being sliced into pieces is not fatal to the case of the Respondent as to negatively affect the conviction of the

Appellant.

On the third ingredient required by the prosecution to secure a conviction of murder against an accused person, i.e. that the act or omission of the accused was intentional, counsel submitted that PW1 in his evidence-in-chief told the trial Court that the Appellant and his cohorts invaded the deceased’s farm notwithstanding the presence of two policemen from Izziogo Police Station. Counsel submitted that the Appellant and his cohorts attacked the deceased with sticks and iron rods and burnt him, his house, car, and carted away the deceased’s belongings. He referred this Court to the evidence of PW1 at page 68 and 69 of the record of appeal, the evidence of PW2 at page 75 of the record of appeal and the evidence of PW3 at pages 83 to 84 of the record of appeal and submitted that where evidence is given by a party which is not challenged by the other party who had the opportunity to do so, the Court can rely on the evidence so adduced and unchallenged. He cited the case of IWUNZE V. FEDERAL REPUBLIC OF NIGERIA (2013) 1 NWLR (pt. 1334) 119.

Counsel referred this Court to the testimony of PW4 at pages 101 of the record of appeal

and submitted that the testimony of the said witness was unambiguous and does not by any means portend that the deceased was kidnapped or whisked away to an unknown place as submitted by the Appellant. On the premise of the above, counsel submitted that the Respondent discharged the third ingredient of the offence of murder. Counsel argued that the law presumes that a man intends the natural and probable consequences of his acts. He cited the cases of ADAMU GARBA V. STATE (1997) 3 SCNJ 68; NWOKEARU V. STATE (2013) LPELR – 20642 (SC). It is the submission of counsel that the rituals of slicing the flesh of the deceased, collation and burning of same with the attendant fun fare and celebration of the Deceased’s assailants smack an intention to kill the deceased.

On issue No. 2, counsel to the Respondent submitted that the presumption of death as provided under Section 164(1) of the Evidence Act does not avail the Appellant. He submitted further that the principle of the presumption of death does not apply in the circumstances of the case and that where there is evidence of death of a person, it automatically becomes unnecessary and out of place

to invoke the presumption of death from seven years absence. He referred to the case of ATTAH V. STATE (1993) 4 NWLR (pt. 288) 403 at 420 Para. E. It is the submission of counsel that the evidence of PW1, PW2 and PW3 that the deceased was, in public glare, killed by the Appellant and his accomplices and not kidnapped as submitted by the Appellant’s counsel.

On the final issue distilled by the Respondent, counsel submitted that there was no contradiction in the case of the Respondent’s witnesses. On what amounts to contradiction in the testimony of a witness, he referred the Court to the case of AYO GABRIEL V. THE STATE (1989) 5 NWLR (pt. 122) @ 457.

On the whole, he urged the Court to resolve all the issues in favour of the Respondent and to dismiss the appeal for lacking in merit.

Counsel to the Appellant by way of reply committed pages 2 – 5 of the Reply Brief to respond to the issues raised therein in the Respondent’s brief of argument. It is my view that the submissions and arguments contained therein in the Reply brief have been canvassed in the Appellant’s brief of argument elaborately considered above,

therefore I find it unnecessary to reproduce same.

RESOLUTION
I have perused the record of appeal compiled and duly transmitted in this case; the brief of arguments filed by both parties as well as the issues distilled for determination across the divide. I have also reviewed the evidence adduced at the trial which was relied upon by the trial Judge in reaching his decision that is being challenged now.

Thus; having considered the issues so formulated by the parties and the grounds of appeal duly filed by the Appellant, I am of the opinion that the understated issue would suffice in determination of this appeal.
“WHETHER FROM THE TOTALITY OF THE EVIDENCE ADDUCED BY THE RESPONDENT AT TRIAL, THE GUILT OF THE APPELLANT WAS PROVED BEYOND REASONABLE DOUBT TO JUSTIFY HIS CONVICTION BY THE TRIAL COURT?”

is not discharged until the guilt of the accused person is properly established. See IDEMUDIA V. THE STATE (1999) 7 NWLR (Pt. 610) 202 at 215 F-G; ESANGBEDO V. THE STATE (1989) 4 NWLR (Pt. 113) 57.

The Appellant and 6 others were charged on one count information of murder contrary to Section 319 of the Criminal Code, Cap 30 Vol. II, Laws of Eastern Nigeria 1963 as applicable to Ebonyi State for which he pleaded not guilty. It has been established in an imprimatur of judicial authorities that to secure a conviction for the offence of murder, the prosecution is duty bound to prove the following ingredients beyond reasonable doubt:
1. That the death of the human being has actually taken place.
2. That the death was caused by the accused.
3. That the act was done with the intention to cause death or that the accused knew or had reason to know that death should be the probable and not only the likely consequence of his act.
See the case of OKEREKE V. THE STATE (2016) LPELR – 40012 (SC).
To determine whether the Respondent proved the offence of murder against the Appellant beyond reasonable doubt is an issue to be determined

after revising the evidence on record. The law is settled that the prosecution can prove its case against the accused person by all or any of the following means:
a) Evidence of any eye witness of the crime;
b) Confession or admission when voluntarily made by the accused; and
c) Circumstantial evidence which is positive, compelling and points to the conclusion that the accused committed the offence.
See the case of OJO V. STATE (2018) LPELR – 44699 (SC).

In a bid to discharge the evidential burden of proof imposed on it by law, the Respondent called six witnesses who testified as PW1, PW2, PW3, PW4, PW5 and PW6 respectively. PW5, one Emmanuel Esio who was the investigating police officer in his evidence tendered the following exhibits:
1. Exhibit ‘E’ – Photostat Copy of the petition dated 22nd April, 2007.
2. Exhibit ‘F’ – One stick allegedly recovered from the 6th accused person, Mr. Mbam Nwofoke.
3. Exhibit ‘G1 – G2’ – Statements of the 1st accused person dated 20/04/2007 and 24/04/2007.
4. Exhibit ‘H1 – H2’ – Statements of the 2nd accused

person dated 20/04/2007 and 25/04/2007.
5. Exhibit ‘J1 – J2’ – Statements of the 3rd accused person dated 20/04/2007 and 26/04/2007.
6. Exhibit ‘K1 – K2’ – Statements of the 4th accused person dated 20/04/2007 and 25/04/2007.
7. Exhibit ‘L1 – L2’ – Statements of the 5th accused person dated 20/04/2007 and 26/04/2007.
8. Exhibit ‘M’ – Statements of the 6th accused person dated 26th April, 2007.

On the first and second ingredients which borders on whether the death of the human being has actually taken place and whether the death was caused by the accused, the evidence of PW1 and PW2 who were eye witnesses of the crime are instructive. PW1, one Simeon Nwaebonyi testified at page 67 – 72 of the record of appeal. In his evidence-in-chief, PW1 testified at page 68 – 69 of the record of appeal as follows:
“…As promised, the Police came the next morning and went to the scene of the incident with the deceased. While at the scene, all the accused persons went to the land armed with iron rods and other dangerous weapons. On their arrival, the 1st accused

was the first to hit the deceased with an iron on his head. The rest of the accused persons joined in beating the deceased till he died. The police was overwhelmed and a stick was recovered from the 6th accused person…
After his brutal murder, the deceased was taken away in a wheel barrow.

In similar vein, PW2, one Abel Nwaebonyi testified at page 75 of the record of appeal as follows:
“I know the accused persons. I also know one Chukwuma Ere who was killed by the accused persons.
On the 17th April, 2007 he was killed by the accused persons. At about 8.00 am on the said date, One Jeremiah Nwebonyi, Nkwuda Nwebonyi, and myself were working in the farm for the deceased. The deceased later came to the farm with two Policemen from Izziogo Police Station. The deceased was there to show the Police where the accused persons set fire on his farm. While the Police was being shown the place, the accused persons and others now at large came to the farm armed with sticks and rods and surrounded the farm. They chased the two policemen away from the farm and pounced on the deceased. The 1st accused was the first to hit the deceased with

iron rod on his head. The 6th accused joined, followed by others. They beat the deceased to death.
After beating the deceased to death, the first accused left the scene with his motorcycle. The 6th accused and other person now at large (i.e. Wilfred Nwankwoegu) decided to cut off the head of the deceased and Godwin Ofim (also at large) cut off the deceased’s head. Thereafter, one Fabian Oruta (also at large) carried the head of the deceased. Linus Nkwuda (the 4th Accused) and Francis Njoku (at large) boasted that they are waiting to see how the deceased will graduate from Abia State University. The accused persons carried the body of the deceased in the barrow we brought to the farm and took him to the playground while one Fabian Oruta carried the head of the deceased to the playground.
At the playground, the accused person cut the body of the deceased in pieces and shared it among themselves. When each packed his own share, he will put it in the wheel barrow. Thereafter, the 5th accused went to the deceased’s house and collected fuel. Both Jeremiah Oruta and Fada Ijuma (at large) removed two tyres from the deceased’s car, placed

them on the wheel barrow and Nkpuke Nwoba (at large) set fire on the pieced (sic) body of the deceased.”

The testimony of PW3, one Nkwuda Nwebonyi under examination-in-chief at pages 83 – 86 of the record of appeal substantially accords with that of PW1 and PW2 on the fact that deceased died and that he was killed by the Appellant and his cohorts. To buttress the above, PW4, one Corporal Monday Anyogu with force number 427621 attached to the Ekumenyi Police Station, Abakaliki testified at pages 100 – 102 of the record of appeal. In his testimony, he stated that:
“On the 16th April, 2007 one Mr. Chukwuma Ere came to our office at about 2230 hrs and reported that a gang of people went to a thatched house in their village and set fire there; burning heaps in the farm and the crops thereon. He mentioned some people (about four of them) who were seen by somebody before they ran away. We asked him to go that we shall come the next morning to the scene of crime. On reaching there in the morning, we met the complainant who took us to the scene of crime. On our way we met the Ward Councilor, Julius Oruta. We told the Councilor our

mission and he followed to the scene of crime. As we were inspecting the area, they played a gang (sic) and before we know it we saw people armed with machetes (sic), sticks and other dangerous weapons who came to attack. We managed to escape and lost our baton and handsets in the process. I don’t know that (sic) happened to Chukwuma Ere as I was running for my life…
I have never set my eyes on Chukwuma Ere again after he took us to the scene of crime where we were attacked and I managed to escape unhurt…”

The evidence of PW5, one Inspector Emmanuel Esio can be found at pages 104 – 111 of the record of appeal. Despite tendering the exhibits spelt out in the preceding part of this judgment, the said witness recounting the role he played in the investigation of the murder of the deceased testified at page 108 of the record of appeal as follows:
“I visited the scene of crime and arrested some of the accused persons.
At the scene of the incident, I made an enquiry from which I gathered an information (sic) that after killing the victim, his body was butchered and shared all the kindreds (sic) that make up Efunagu

community who gathered at the village/market square. After sharing the deceased’s body, it was collected back from the recipients, put into a wheel barrow, put tyres and set it ablaze and later taken to unknown destination.
When we returned, we put up our Investigation Report. Since the body was not seen, there was nothing like post mortem examination.”

In his defence, the Appellant testified as DW5 at pages 139-141 of the record of appeal. In his defence, the Appellant merely denied all charge proffered against him.

Having gone through the records of proceedings wherein the evidence of the Respondent’s witnesses are contained, it is my view that the testimonies of the said witnesses were not challenged or contradicted under cross-examination and I am inclined to accept them as what truly transpired on the 17th April, 2007. On the legal consequences of unchallenged evidence, the Supreme Court, Per Mohammed J.S.C. in the case ofKOPEK CONSTRUCTION LTD. V. EKISOLA (2010) LPELR – 1703 (SC), held as follows:
“I think the law is certain that where evidence before a trial Court is unchallenged, it is the duty of that Court to

accept and act on it as it constitutes sufficient proof of a party’s claim in proper cases…”

The Appellant’s counsel made concerted efforts in paragraphs 5.01 to 5.06 of the Appellant’s brief to draw the attention of this Court to the alleged inconsistencies in the case of the Respondent’s witnesses. Counsel also drew the attention of the Court to the inconsistencies in the extra-judicial statement of PW1 and his oral testimony in Court. I have gone through the extra-judicial statement of PW1 vis-a-vis his testimony in Court. I do not agree with counsel that there are inconsistencies in the said statement and his oral testimony. Although it is evident that the statement contains a more detailed account of the circumstances surrounding the death of the deceased, however, there are no discrepancies that are capable of subtracting from the credibility of his testimony regarding the death of the deceased and also that the Appellant and the co-accused killed him. As a matter of fact, PW1’s statement was made on the 19th day of April, 2007, two days after the gruesome act was perpetuated by the Appellant and the co-accused.

On the other hand, the PW1 gave his evidence-in-chief on 11th October, 2012. By reason of human nature, PW1 is reasonably expected to be more detailed in the extra-judicial statement which he volunteered just two days after the deceased was killed. From the record of appeal, each witness gave a detailed account of what he saw or investigated regarding the death of the deceased.

of other Respondent’s witnesses cannot override the primary quest of the Court which is; who actually committed the offence of murder?

The Appellant’s counsel also made heavy weather on the provisions of Section 164(1) of the Evidence Act to the effect that the Appellant ought not to be charged for the offence of murder because the deceased (Chukwuma Ere, whose corpse was not found) is not presumed to be dead until after seven years. He submitted at paragraph 6.01 of the Appellant’s brief that since a case of kidnapping was reported to the police with no corpse of the deceased seen or recovered and considering the testimony of PW4 to the effect that he cannot tell the whereabouts of the deceased, then it is presumed that the deceased was still alive by virtue of Section 164(1) of the Evidence Act.
From the circumstances of the case and from the totality of the evidence adduced on record, I do not agree with the Appellant’s counsel on the applicability of the principle of presumption of death as provided by Section 164(1) of the Evidence Act. I agree with the submission of the Respondent counsel to the effect that where there

is evidence of death, it automatically becomes unnecessary and out of place to invoke the presumption of death from seven years absence. What corpse does the Appellant seek when it was stated by the Respondent’s witnesses particularly the testimonies of PW2, PW3 and PW5 that the deceased was butchered and burnt to death? As a matter of fact, PW5 expressly stated at page 108 of the record of appeal that “since the body was not seen, there was nothing like post mortem examination”.

On the last and final ingredient of the offence of murder which is whether the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence, I am of the view that a reasonable person would expect that death should be the natural occurrence when he hits another with a rod, butchers him and set his body ablaze. I am therefore convinced that the Respondent discharged the standard of proof by establishing through credible and admissible evidence that the Appellant is guilty of the offence of murder.

On the whole, I hereby resolve the sole issue distilled by

this Court against the Appellant and in favour of the Respondent. I hold that this appeal is unmeritorious and same is hereby dismissed. The decision of the trial Court delivered by JUSTICE JOHN IGBOJI on the 29th day of June, 2018 in SUIT NO: HAB/2C/2008 wherein the learned trial Judge found the Appellant guilty of the offence of murder and sentenced him to death by hanging is hereby affirmed.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have the privilege of reading in draft the judgment just delivered by my learned brother HON. JUSTICE A. S UMAR, JCA. I agree with the reasoning and conclusion therein that the appeal is unmeritorious and same is hereby dismissed.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother ABUBAKAR SADIQ UMAR, JCA and I totally endorse the reasoning and conclusion therein.
I equally hold that the appeal lacks merit and it is accordingly dismissed.
I adopt the consequential orders in the lead judgment as mine.

Appearances:

C. UZUEGBU, ESQ. For Appellant(s)

I. ALOBU, ESQ., DIRECTOR OF PUBLIC PROSECUTIONS, EBONYI STATE For Respondent(s)