IJERE v. STATE (2020)

IJERE v. STATE

(2020)LCN/14286(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Monday, June 29, 2020

CA/E/107C/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

INNOCENT IJERE APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL TRIALS

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 presume 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 VS THE STATE (1999) 7 NWLR (Pt.610) 202 at 215 F-G; ESANGBEDO V STATE (1989) 4 NWLR (Pt. 113) 57. PER UMAR, J.C.A.

INGREDIENTS TO ESTABLISH THE OFFENCE OF MURDER

It has been established in our imprimatur of judicial authorities that to secure a conviction for an 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 that death should be the probable and not only the likely consequence of his act.
See the case of OKEREKE VS 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 VS STATE (2018) LPELR – 44699 (SC). PER UMAR, J.C.A.

WHETHER OR NOT IT IS ONLY MATERIAL CONTRADCTONS THAT ARE TO BE CONSIDERED BY THE COURT

The Law is trite to the effect that discrepancies on the other hand are minor differences in the details and these are allowed in proceeding. See LT. F. O ODUNLAMI VS NIG. NAVY (2013) AELR 1776 Ratio 5 (SC) SUIT No. SC 328/2011.
A piece of evidence contradict 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. It is only material contradictions that are to be considered. See NWANKWOALA V F.R.N (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 Hon. 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 STATEMENT OF FACTS
The Appellant and six 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 of Ebonyi State. That the deceased was the village head and that upon expiration of the deceased tenure, he handed over to one Julius Orata 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 land and immediately allocated them to his loyalists who quickly erected some make-shift structures on the land.

It is the case of the Respondent that the acts of the new village head and his loyalist 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 gutted one of the make-shift structures erected by and belonging to the Appellant, which prompted the deceased to lodge a complaint at the Izziogo Police Station.

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 on the spot. That

the Appellant and his accomplices 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 drop same in a wheel barrow the assailant’s brought from the deceased 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 the 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 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 jurisdictions of this Court vide a Notice of Appeal dated 30th July, 2018. The same 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’s reply Brief was 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 determination on 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 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 the case of the fact that the alleged corpse of the deceased was not seen in this case that was reported to the police on 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 May, 2020. The said brief was settled by I. I. ALOBU ESQ, Director of Public Prosecutions, Ebonyi State; learned counsel to the Respondent formulated 3 issues for the determination of this appeal to wit:
1. Whether the prosecution successfully proved its case beyond reasonable doubt on to have warranted the conviction of the appellant?
2. Whether the presumption of the 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 of 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 cause 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 requirement through credible evidence. He submitted further that it is dangerous to go by what PW1 said in his 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 the 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 Court 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 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 impunity on the appellant to prove his innocence. He referred this Court to the cases of FOLARIN VS STATE

(1995) 3 NWLR (Pt. 371) 31, ONAFOWOKAN VS 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 issue No. 3, 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 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 when the Appellant was docked. Counsel submitted that as at the time of arraignment the Appellant in the circumstance 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 his submission that when a person is kidnapped and his corpse is not seen, for 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 2011, before arraigning the Appellant or any other person in a case of murder.

On the whole he urged this Court to allow the appeal and to discharge and acquit the Appellant.

RESPONDENT’S ARGUMENT
On issue No. 1, 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 the 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 to testimony of PW1 at page 8 – 9 and 68 – 69 of the Record of Appeal.

Counsel submitted the evidence that the Appellant was one of the killers of the deceased was corroborated by the evidence of the PW2 at page 75 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 are strong and direct evidence as in the instant appeal. He referred to the case ofEDIM V. THE STATE (1972) 4 SC 160 at 162. He submitted further that the 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 person 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 rod 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 record of appeal and the evidence of PW2 at page 75 and evidence of PW3 at page 75 and evidence of PW3 at page 83 and 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 as unchallenged. He cited the case of IWUNZE VS STATE (2013) 1 NWLR (Pt 1334) 119.

Counsel referred this Court to the testimony of PW4 at page 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 ingredients 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 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 by slicing the flesh of the deceased, collation and burning of same with the attendant funfair and celebration of the deceased’s assailant smack an intention to kill the deceased.

On the issue No. 2, Counsel to the Respondent’s 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 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 ofATTAH V STATE (1993) 4 NWLR (Pt.288) 403 at 420 part E. It is the submission by 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 VS STATE (1989) 5 NWLR (Pt. 122) at 452. He finally urged the Court to dismiss the appeal for lacking in merit.
Learned Counsel to the Appellant by way of reply committed pages 2-5 of the reply brief to respond to the issue raised in the Respondent’s brief of argument. However, i am of the view that the submission 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 the case. I have also reviewed the evidence adduced at the trial which was relied upon by trial judge in reaching his decision that is being appealed now.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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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 APELLANT WAS PROVED BEYOND REASONABLE DOUBT TO JUSTIFY HIS CONVICTION BY THE TRIAL COURT?”

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, Law of Eastern Nigeria 1963 applicable to Ebonyi State for which he pleaded not guilty.

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 6th accused person, Mr. Mbam Nwofoke.
3. Exhibit “G1-G2’ – Statement of the 1st accused person dated 20/04/2007 and 24/04/2007.
4. Exhibit “41-42” Statements of the 2nd accused person dated 20/04/2007 and 26/04/2007.
5. Exhibit “J1-J2” Statements of the 3rd accused person dated 20/04/2007.
6. Exhibits “K1 – K2” – Statements of the 4th accused person dated 20/04/2007 and 25/04/2007.
7. Exhibits “L1- L2” – Statements of the 5th accused person dated 20/04/2007 and 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 person, the evidence of PW1 and PW2 who were eye witnesses of the crime are instructive. PW1 one Simon Nwaebonyi testified at page 67-72 of the record of appeal. In his evidence in Chief, PW1 at pages 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 with dangerous weapons, and on their arrival, the 1st accused was 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 8.00a.m on the said date, one

Jeremiah Nwaebonyi, Nkwuda Nwaebonyi, 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 person 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 the 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 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 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 Nwuda 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 22:30 hrs and reported that a group 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 the crime. On reaching there in the morning, we met the complainant who took us to the scene of the crime. On our way we met the Ward Councilor, Julius Oruta. We told him our mission and he followed us to the scene of crime. As we were inspecting the area, they played a gang (sic) and before we knew it we saw people armed with matchet (sic) sticks and other dangerous weapons who came to attack. We managed to escape all lost our baton and handsets in the process. I don’t know what (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 information (sic) that after the killing of the victim, his body was butchered and shared to all the kindred (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 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 DW2 at pages 124-128 of the record of appeal. In his defence, the Appellant merely denied the charge preferred against him.

Having gone through the record of proceedings wherein the evidence of the Respondent’s witnesses are contained, it is my firm view that the

testimonies of PW1, PW2, PW3 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 JSC in the case of KOPEK CONSTRUCTION LTD VS EKISOLA (2010) LPELR – 1703 (SC), held as follows:
“I think the law is settled 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 make concerted efforts in paragraph 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 draws the attention of the Court to the inconsistencies in the extra-Judicial statement of PW1 and his oral testimony in Court. I do not agree with the counsel that there are inconsistencies in the said statement and his oral testimony. The Supreme Court in the case of ADELE VS STATE (1995) 2 NWLR (Pt.337) 269 per

RHODES-VIVOR held:
“On the other hand minor discrepancies between previous written statement and subsequent testimony on oath do not in any way affect the credibility of the witness. It is my view that where there are no discrepancies there would be strong inference or suspicion that the witness has been tutored.”
Although it is evident in the instant case that the statement contains a more detailed amount of the circumstances surrounding the death of the deceased, however, there are no discrepancies 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 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.
The Law is trite to the effect that discrepancies on the other hand are minor differences in the details and these are allowed in proceeding. See LT. F. O ODUNLAMI VS NIG. NAVY (2013) AELR 1776 Ratio 5 (SC) SUIT No. SC 328/2011.
A piece of evidence contradict 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. It is only material contradictions that are to be considered. See NWANKWOALA V F.R.N (2018) LPELR – 43891 (SC). Thus, those minor discrepancies in the light of the uncontroverted evidence 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 whether on the provisions of Section 164 (1) of the Evidence Act to the effect that the Appellant’s 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.
Since the Learned Trial Judge accepted and believed in the testimonies of PW1, PW2 and PW3 who gave eye witness account of how the deceased was killed in his farm, it is unnecessary to rely on the provision of Section 164 (1) as aid to dislodge the charge of murder against the accused person. That section does not avail the Appellant in his quest to be exonerated from the murder charge. 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 Respondent’s witnesses that the deceased was butchered and body set ablaze.

On the last 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, butchered him and set his body ablaze. I am therefore convinced that the Respondent duly discharged the standard of proof through credible and admissible evidence, and the trial Court rightly convicted the accused person of murder of the deceased.

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 conviction and sentence of the appellant 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 or 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. For Respondent(s)