AWO v. STATE (2020)

AWO v. STATE

(2020)LCN/14497(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Thursday, July 23, 2020

CA/OW/476C/2017

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

OTI UKA AWO APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WAYS OF ESTABLISHING THE OFFENCE OF MURDER

The law is trite, that offence of murder can be established by direct evidence of eye witness(es) of the murder; or by confessional statement of the accused person, adjudged freely and voluntarily made about the murder, or by circumstantial evidence, inferred from the circumstances of the death of the deceased, which strongly point at the Accused person as the guilty party to the murder. See the case of Dada Vs State (2017) LPELR – 43468 (SC); Adesina & Anor Vs The State (2012) LPELR – 9722 (SC). PER MBABA, J.C.A.

CIRCUMSTANTIAL EVIDENCE

But, in relying on circumstantial evidence, the said evidence must be cogent, complete, compelling and must lead to the irresistible conclusion that the accused person and no other, is the murderer. See the case of Dada Vs The State (supra) where the Supreme Court said:
“Circumstantial evidence, is very often, the evidence. It is said to be evidence of surrounding circumstances, which by undesigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say it is circumstantial. But the circumstantial evidence sufficient to support a conviction must be cogent, complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the prisoner, and no one else, is the murderer. The fact must be incompatible with innocence of the Accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt.” Augie JSC.
In the case of Adesina & Anor Vs State (supra), it was held:
“Circumstantial evidence differs from direct evidence merely in the logical relation to the fact in issue. While evidence as to the existence of the fact is direct evidence, circumstantial evidence relates to the existence of facts which raise a logical inference as to the fact in issue. (See Advanced Law Lexicon Book 2. Page 1673). Per Ngwuta JSC
And in the case of Amos Vs The State (2018) LPELR – 44694 (SC). It was held:
“What is available in this case as a method to establish the culpability of the Appellant is circumstantial evidence, which can, in certain situations, be stronger than even an eye witness account. It is such that when the different pieces of evidence are taken altogether, there is this tie leading to the irresistible and compelling conclusion that the crime was committed and by the no other than the accused. It can take on such a logical reading with the precision of mathematics that leaves no room for any other conjecturing possibility than that the crime for which Appellant was charged was committed by him and could not have been done by another.” PER MBABA, J.C.A.

PRESUMPTION OF THE INNOCENCE OF AN ACCUSED PERSON

The above amounts to turning the proof of offence, in a criminal trial, on its head; that is, placing the burden of proof on the accused person to prove his innocence. By our laws, an accused person is presumed innocent, until his guilt is established by the prosecution. The Accused person has no duty to prove his innocence. See Section 36(5) of the 1999 Constitution, as amended, and a long line of cases, including Okoro Vs The State (1988) LPELR – 2494 SC; (1988) 5 NWLR (Pt.94) 255.
In C.O.P. Vs Amuta (2017) LPELR – 41386 SC, it was held: “The constitutional provision on the presumption of innocence of an accused person is sacrosanct and settled. The burden is always on the prosecution to prove the guilt of the accused and not his business to prove his innocence. He can decide to keep mute from beginning of the trial right through to the end. It is for the prosecution to make out a prima facie case against the accused through credible evidence which must be laid bare before the Court. It is the proof of hard facts that would lead to the conviction of the accused. Without any case made out against the accused, he cannot be called upon to enter his defence, because in doing otherwise would undermine the constitutional presumption of innocence.” Per Ogunbiyi, JSC. PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this Appeal against the Judgment of the Abia State High Court in Charge No. HAR/2C/2012, delivered on 22/9/2014 by Hon. Justice C.U. Okoroafor, wherein the Learned trial Judge convicted the Appellant (along with other accused persons) for murder and sentenced him to death by hanging. At the trial Court, the Charge (Information) against Appellant (and the other accused persons), was:
STATEMENT OF OFFENCE
Murder, contrary to Section 319(1) of the Criminal Code, Cap 30, Vol.2, Laws of Eastern Nigeria, 1963 as applicable in Abia State.
PARTICULARS OF OFFENCE
ACHA UKA AWO, CHIMEZIE AWA, OTI UKA AWO, SAMPSON NGOZI ATUM, AWO UKA AWO and IROHA OGBUAGU, on the 29th December, 2010 at Amaeke Abam Village in Arochukwu Judicial Division, murdered Chidi Nwosu.

Appellant (and the other accused) took plea on 2/01/2013 when he pleaded not guilty to the Charge. He was the 3rd Accused person. At the trial the prosecution called 4 witnesses and tendered 19 Exhibits, and at the end of the prosecution’s case, the Defence Counsel made a No CASE SUBMISSION, which

was overruled. Appellant thereafter defended himself, by adopting his statement to the Police (Exhibit C) and placing reliance on the case of the prosecution and therefore, called no witness. (The other Accused persons did the same – placing reliance on the case of the Prosecution).

At the end of the trial, the trial Court, after considering the evidence and the addresses of Counsel, convicted the Appellant and his co-accused, for the murder of Chidi Nwosu. It said:
“In this case, it was shown by credible evidence that there were number of circumstances that co-existed which the Court accepted as making a complete and unbroken chain of evidence which in themselves constituted sufficient and cogent proof that the accused persons committed the offence charged. The proof beyond reasonable doubt does not mean proof beyond shadow of doubt or proof beyond all iota of doubt. It simply means the establishment of all the ingredients of an offence charged, in tandem with the dictates of Section 138 of the Evidence Act and Section 36(5) of the 1999 Constitution (as amended). See Ajayi Vs State (2014) ALL FWLR (Pt.711) 1457 at 1461. It also means the

prosecution establishing the guilt of the accused person with degree of compulsion which is consistent with a high degree of probability against a man as to leave only a remote probability in his favour, which can be dismissed with the sentence “of course, it is possible” as it is in the instant case. See Shurumo Vs The State (2010) 44 NSCQR 135 at 147.
As I said, earlier, in this judgment, there was no eye witness account as to who killed the deceased. However, a Court could properly infer from circumstantial evidence that the death of the deceased, was caused by the act of the accused without any other evidence. See Ibo Vs The State (1971) NMLR 2451. Although witness can lie, circumstances cannot lie. Consequently, and in that sense, circumstantial evidence affords better proof, beyond reasonable doubt. The prosecution through the evidence of PW1, 2, 3 and 4 and the Exhibits, circumstantially, proved beyond reasonable doubt all the ingredients in this Case which evidence was cogent and had linked the accused persons with the death of the deceased. The facts proved in evidence by the prosecution led to the irresistible conclusion that the

accused persons, and no other persons had the same opportunity to murder the deceased…
Accordingly… the 3rd accused, Oti Uka Awo is found guilty of the offence of murder as charged and I, hereby convict him, accordingly.” (See pages 198 to 199 of the Records of Appeal).

Appellant filed his Notice of Appeal on 13/10/2017 with leave of Court, and an Amended Notice of Appeal on 11/4/2019, which was deemed duly filed on 17/7/2019, disclosing 10 grounds of Appeal. Appellant filed his brief of argument on 11/4/2019, which was also deemed duly filed on 17/7//2019, wherein he distilled five (5) Issues for the determination of the Appeal, as follows:
(1) Whether the prosecution proved the ingredients of the Charge of murder against the Appellant beyond reasonable doubt as required by law to ground the conviction of the Appellant by the trial Court. (Grounds 1 and 2 of the original Notice and 4, 5 and 6 of Amended Notice of Appeal)
(2) Whether the circumstantial evidence adduced by the prosecution in the Charge was cogent, complete and compelling enough to reach the irresistible conclusion that the Appellant killed or participated

in the killing of the deceased. (Ground 7).
(3) Whether the failure of key, vital and material witnesses of the prosecution (sic) in the charge was not fatal to the case of the prosecution. (Ground 3).
(4) Whether the Appellant was not prejudiced in the trial by the trial Court. (Grounds 8 and 10).
(5) Whether the failure of the trial Court to properly consider the defence raised by the Appellant did not lead to miscarriage of justice against the Appellant. (Ground 9).

The Respondent filed brief on 17/7/19 and adopted the five Issues distilled by Appellant for the determination of the Appeal. Appellant filed a Reply brief on 3/10/2019, which was deemed duly filed on 20/5/2020.

The Appeal was argued on 6/7/2020, when the Counsel on behalf of the parties adopted their briefs.
Wrong Joinder of Grounds of Appeal to distill Issue one
I think Appellant’s Counsel was in grave error to have founded the Issue 1, distilled for determination of the Appeal, on grounds 1 and 2 of the original grounds of the Appeal (Page 207 of the Records) and on grounds 4, 5 and 6 of the Amended Notice of Appeal. By so doing, Appellant appeared to

have abandoned the grounds 1 and 2 of the Amended grounds of the Appeal and rather went for the grounds 1 and 2 of the original Notice of Appeal, which ceased to exist, upon the Amended Notice of Appeal coming to effect on 17/7/2019, when it was deemed duly filed, by this Court. Appellant’s Counsel is expected to know that, by law, an amended process of Court replaces the earlier one (from which it was amended), thereby rendering the earlier process non-existent, from the date of filing of the Amended Version. See the case of Ogwudire Vs Obigwe & Anor (2014) LPELR – 23635 (CA), which relied on the Supreme Court case of Garan Vs Olomu (2013) LPELR – 20340 SC, to say:
“I think it is an elementary principle of law that once a process of Court has been amended, the original process ceases to be, as it is subsumed and replaced by the new and amended process, and so the amended process becomes the authentic legal instrument for reference and use in the determination of any issue in controversy. Of course, in that circumstance, the new Amended process super-cedes the old, which is confined to the refuse heap. See the case of Garan Vs Olomu

(2013) LPELR – 20340 SC, where the apex Court said:
“A process is said to super-cede another, if it is subsequent to and completely severed from the other… For supervision (sic) to occur, there must be a complete disconnect between the two, imposed by the fact of the one completely occupying the place and role of the other.”
See also NUT TARABA STATE & ORS VS HABU & ORS (2018) LPELR – 44057 (SC), where it was held:
“The Original Notice of Appeal, as I have demonstrated so far, is not void ab initio. It is amended, and when amended, the amendment goes to the roots: Salami Vs Oke (1987) 4 NWLR (Pt.63) 1 at 17; Jatau Vs Ahmed (2003) FWLR (Pt.151) 1837 at 1896.”
In the circumstance, joining the non-existent grounds 1 and 2 of the Original Notice of Appeal with the grounds 4, 5 and 6 of the Amended Notice of Appeal, to argue the Issue 1, is faulty, as the virus of the defective grounds 1 and 2 of the replaced original grounds of Appeal has infected the said Issue 1 and the arguments, thereof; and the issue becomes incompetent. See Ihuoma Vs Wachukwu (2017) LPELR – 42621 CA;

Uzoho Vs Asugha (2017) LPELR – 42073 CA; Nwachukwu & Anor Vs Ajomiwe Anele (2019) LPELR – 46609 (CA); ABE Vs UNILORIN (2013) LPELR – 20643 (SC).

The said Issue 1, and the grounds 1, 2, 4, 5 and 6 of the Appeal, from which no issue has been distilled, are accordingly, struck out.

This Appeal shall therefore, be considered on the remaining Issues 2 to 5, which in the main, query the conviction of Appellant on the basis of circumstantial evidence, which Appellant says did not establish the offence beyond reasonable doubt.

Arguing the Appeal, Appellant’s Counsel, J.C. Uwandu, Esq, on Issue 2, whether the circumstantial evidence adduced by the prosecution in the charge, was cogent, complete and compelling enough to reach the irresistible conclusion that the Appellant killed or participated in the killing of the deceased, answered in the negative. Counsel said the trial Court had acknowledged that there was no evidence of any eye witness, but said that “the prosecution through the evidence of PWs 1, 2, 3 and 4 and the exhibits, circumstantially proved beyond reasonable doubt all the ingredients in the case, which evidence

was cogent and linked the accused persons with the death of deceased.” (Page 99 of the Records of Appeal). He said that the above holding was absurd, as the prosecution did not, by any iota of evidence, make out any prima facie case against the Appellant.

He said that the evidence about the Appellant was rather about where and how he was arrested and not what he did in relation to the murder of the deceased; Counsel said that none of the people who arrested Appellant and handed him over to the police made statement to the police or testified in Court, to link him with the offence. He submitted that in drawing inference of guilt of an accused person from circumstantial evidence, great care must be taken, not to fall into serious error based on the fallibility of inference; he said that circumstantial evidence must always be narrowly examined as it can always be fabricated to cast suspicion on innocent persons. He relied on Obalum Vs State (1976) 10 SC 255 at 264; Udedibia Vs The State (1976) 11 SC 133.

He added that circumstantial evidence must point to only one rational conclusion, namely, that the offence had been committed and that it was

committed by the accused person. He relied on Igbikis Vs State (2017) 11 NWLR (Pt.1575) 126. Thus, circumstantial evidence must be unequivocal, positive, and must irresistibly point to the guilt of the accused person, and there must be no co-existing circumstances casting any doubt on the inference that the accused person, and no other, is the guilty party. Counsel relied again on Igbikis V State (supra); Gabriel Vs The State (1989) 5 NWLR (Pt.122) 457 and State Vs Ogbubunjo (2001) 2 NWLR (Pt.698) 576, where the Supreme Court, on the quality of evidence adduced by prosecution said:
“… rather what we have from prosecution is evidence of equivocation of uncertainties of hearsay and rumors, which in a criminal Court cannot suffice to establish any offence beyond reasonable doubt. It is trite law that it is not sufficient to say if the respondents are not the murderers, I know of no one else who is. There is some evidence against them and none against anyone else. Therefore they must be found guilty. Such line of reasoning is unsound.” Per Onu JSC.

Counsel added that suspicion, no matter how strong cannot establish the guilt of an

accused. Igbikis Vs State (supra) Counsel further submitted that in this case, Appellant is a relation of the deceased; there was no evidence of frosty relationship between them; at the time of the killing of the deceased, Appellant said he was in his own house with one Amarachi Atum; that alibi raised by him was not investigated by the Police; none of the witnesses mentioned him as the killer or one of the killers of the deceased; his arrest was long after the murder of the deceased; none of the persons who arrested him made statement to the Police as to the reason for his arrest, and his arrest was founded on the realm of speculation and conjecture; he said that the Police also admitted it did not conclude investigation of the case. Counsel relied on the case of Clark Vs State (1986) 4 NWLR (Pt.55) 581 to the effect that suspicion cannot form the evidence or basis for conviction of an accused person.

On Issue 3, Counsel said that the failure of the prosecution to call key and vital material witnesses at the trial was fatal to the case of the prosecution; that there was evidence that the wife of the deceased and some family members were there when the

gun men invaded the house and robbed and killed the deceased. He said that PW2 (IPO) admitted receiving statement from Mrs. Amaka Nwosu (the wife of the deceased) and Mrs. Bridget Biachi (his mother-inlaw) and the said statement are in the proof of evidence and formed part of the Records of Appeal (pages 7 to 12 of the Records); yet they were not called and their statements not tendered at the trial; he said that the trial Court, on page 150 of the Records, admitted that Mrs. Amaka Nwosu and Mrs. Bridget Biachi were key, vital and material witnesses. He said that it was mandatory to call them to testify at the trial, and relied on the case of Onah Vs State (1985) 3 NWLR (Pt.12) SC 236 at 237:
“In a criminal case, although the prosecution has the discretion to call whichever witnesses it considers necessary to prove the offence charged, its failure to call very vital witnesses whose evidence may determine the case one way or the other, will be fatal to the case. Where a party to a case failed, refused or neglected to call a vital witness, whose evidence may help decide the case one way or the other, it will be presumed that had the witness been

called, his evidence would have been unfavourable to the party who called him.”

Counsel also relied on the case of Edoho Vs State (2004) 5 NWLR (Pt.865) 17 on who is a vital witness.

On Issue 4, whether Appellant was not prejudiced by the trial Court, Counsel answered in the affirmative. He said that the trial Court was wrong to hold that Appellant did not lead evidence and so admitted all the evidence led by the prosecution. He argued that the burden is always on the prosecution to establish the guilt of the Accused by credible evidence beyond reasonable, and so there is no room for admission of the case presented by the prosecution, as the basis for founding conviction. He relied on Section 36(5) of the 1999 Constitution on the presumption of innocence of Accused person.

Counsel referred us to the findings (inferences) of the trial Court on pages 187 – 188 of the Records of Appeal, as the basis for finding him guilty, and submitted that the said sentiments expressed had no place in law and had no bearing with the evidence led in the charge. Also he argued that Appellant had no obligation to call the Eze and Okorie Nwosu, as

witnesses. He relied on the case of Onwujuba Vs Obienu (1991) 4 NWLR (Pt.183) 16 SC, and added that the trial Court wanted Appellant to prove his innocence, contrary to Section 36(5) of 1999 Constitution, as amended.

On Issue 5, whether the failure of the trial Court to properly consider the defences raised by Appellant, did not lead to miscarriage of justice against him, Counsel answered in the affirmative. He submitted that the Court was under a duty to consider any defence raised by the accused person. He relied on the case of Oforlete Vs State (2018) 14 NWLR (Pt.1638) 192; Sale Vs The State LER (2015) SC 56/2013; Bozin Vs The State (1985) 2 NWLR (Pt.8) 465 at 473.
He urged us to resolve the Issues for Appellant, and allow the Appeal.

The Respondent’s Brief was argued by H.I. Madu Esq (who settled the brief). On their Issue 1, whether the prosecution proved this case of murder beyond reasonable doubt, Counsel answered in the affirmative. He stated what the prosecution needed to prove to establish the offence, namely:
(a) The deceased is dead;
(b) The act or omission of the defendant, which caused the death of the deceased, was

unlawful and
(c) The act or omission of the Defendant which caused the death of the deceased must have been intentional, with the knowledge that death or grievous harm was its probable consequence.

He relied on Uguru Vs State (2002) 9 NWLR (Pt.771) 90; Gira Vs State (1996) 4 NWLR (Pt.443) 375; Nwaeze Vs State (1996) 2 NWLR (Pt.428).

He submitted that the prosecution can prove the guilt of the Accused person by way of confessional statement of the Accused, or by circumstantial evidence, or evidence of eye witness; that in this case the prosecution relied on circumstantial evidence. He relied on State Vs Isah (2013) 8 NCC 320 at 325; Okeke Vs State (1999) 2 NWLR (Pt.590) 246; Ikwunne Vs State (2000) 5 NWLR (Pt.658) 550.

Counsel said that there was evidence that the deceased died; that the circumstantial evidence showed that 3rd (Appellant) and 4th Defendants ran away, after the death of the deceased, when everybody in the community was summoned to find out who killed the deceased; that they were arrested at Idima Abam. Counsel said Appellant should have given evidence in his defence, other than adopting his previous extra-judicial statement

or resting his case on the evidence of the prosecution.

On the alibi raised in his statement, Counsel said that could not help the Appellant; that he was trying to bring the picture of alibi, but could not because he did not give account of his where about on 29/12/2010, especially during the night hours, when the deceased was murdered.

On Issue 2, whether the conviction and sentence of Appellant was valid in law, Counsel answered in the affirmative. He said that the trial Court adequately evaluated the extra-judicial statement, which was tendered as Exhibit C, though he said that the procedure of Appellant adopting his statement, without giving evidence, was irregular.
Appellant had filed a Reply Brief, which I think merely rehashed the earlier arguments in the main brief.

RESOLUTION OF THE ISSUES
I think the real issue for the determination of this Appeal is whether the trial Court was right to hold that there was cogent compelling circumstantial evidence that linked the Appellant to the murder of the deceased, Chidi Nwosu, and to convict him for the murder, and sentence him to death.

The law is trite, that offence of murder can

be established by direct evidence of eye witness(es) of the murder; or by confessional statement of the accused person, adjudged freely and voluntarily made about the murder, or by circumstantial evidence, inferred from the circumstances of the death of the deceased, which strongly point at the Accused person as the guilty party to the murder. See the case of Dada Vs State (2017) LPELR – 43468 (SC); Adesina & Anor Vs The State (2012) LPELR – 9722 (SC).

lead to the irresistible conclusion that the prisoner, and no one else, is the murderer. The fact must be incompatible with innocence of the Accused and incapable of explanation upon any other reasonable hypotheses than that of his guilt.” Augie JSC.
In the case of Adesina & Anor Vs State (supra), it was held:
“Circumstantial evidence differs from direct evidence merely in the logical relation to the fact in issue. While evidence as to the existence of the fact is direct evidence, circumstantial evidence relates to the existence of facts which raise a logical inference as to the fact in issue. (See Advanced Law Lexicon Book 2. Page 1673). Per Ngwuta JSC
And in the case of Amos Vs The State (2018) LPELR – 44694 (SC). It was held:
“What is available in this case as a method to establish the culpability of the Appellant is circumstantial evidence, which can, in certain situations, be stronger than even an eye witness account. It is such that when the different pieces of evidence are taken altogether, there is this tie leading to the irresistible and compelling conclusion that the crime was committed and by the no

other than the accused. It can take on such a logical reading with the precision of mathematics that leaves no room for any other conjecturing possibility than that the crime for which Appellant was charged was committed by him and could not have been done by another.”

In this case, at hand, are there such pieces of circumstantial evidence which point directly and cogently at or to the Appellant, leading to the irresistible and compelling conclusion that the crime (murder of Chidi Nwosu) was committed by no other than the Appellant? Can it be said that the evidence took on such a logical reading, with the precision of mathematics, that leaves no room for any other conjecturing possibility than that the crime for which Appellant was charged was committed by him, or that he was one of those that committed the crime?

From the evidence on the printed records and even by the findings of the trial Court, I see no basis for the conviction of the Appellant for murder, and sentencing him to death by the trial Court. I have read the evidence adduced by the witnesses (PW1, PW2, PW3 and PW4), and their extra-judicial statements; none of them witnessed the

brutal murder of the deceased, and none of them mentioned the Appellant and/or linked him with any act or omission that caused the death of the deceased, Chidi Nwosu. And the trial Court never disclose any such evidence which it said was/is cogent and linked Appellant with the death of the deceased.

Under cross examination PW1, Kingsley Ngulu, was asked whether the deceased’s wife, who witnessed the attack in their house that resulted in the death of the husband, mentioned to him (PW1) any of the persons who came to attack the deceased.
Answer:
“She was in shock and incoherent, therefore could not put her words together.”

On whether he (PW1) and the wife of the deceased knew all the accused person, personally, PW1 answered:
“I know all of them, personally… I am not aware if she (deceased’s wife) knows all of them personally, except for Acha 1st accused, who worked for the deceased.” (See page 83 of the Records).

The PW2, Inspector Peter Ebuom, (I.P.O), had stated how Appellant (3rd Accused) and 4th and 5th Accused persons were arrested, when he said:

“Two other suspects, the 3rd, 4th, and 5th accused persons, were arrested by the Nate Youths of Amaeke Abam and were handed over to the Police at S.C.I.D, Umuahia. They were all charged and cautioned and they volunteered statements…” No other witness was reached further, because the community was in chaotic situation. Some houses suspected to be owned by some suspected persons, were burnt down, including that of Nze Nwosu, an uncle to the deceased.” Page 85 of the Records

PW2 also told the Court that:
“Based on the Exhibits that were transferred from Arochukwu and one black beret cap that was found at the scene that was reportedly owned by the 1st accused, Uka Awo, he was arrested and taken to SCID, where he was formally charged.” Page 84 of the Records.

Under cross examination, as to why he recommended the charge of 1st accused, for murder, he said:
“One was based on the beret cap that was found at the scene of crime, which the 1st accused accepted as his cap.” (Page 91 of the Records)

On whether the Youths who apprehended (arrested) the 3rd to 5th Accused and handed them to the Police, told the Police why they were

arrested, PW2 said:
“The 3rd – 5th accused persons ran away from the community, when the whole community gathered in one place to find out those who were responsible for the death of the deceased. They were caught by another community who equally had heard what happened and now informed the Police and we had to go there to rescue them before they could be lynched.” (Page 93 of the Records)

PW3, Ebere Nwosu, too, did not mention the Appellant. Her evidence rather touched on the 1st Accused, who she said scooped the blood of the deceased on the floor into a container and hid it by the side of the fence, and when he was confronted, started shouting at her. (Page 108 of the Records)

PW4, Nwosu Oko Nwosu, the father of the deceased, too did not witness the killing of the deceased, but was aware of the scooping of the blood of the deceased by 1st Accused, and had confronted him on that, and he (1st accused) started talking unintelligibly, according to PW4. PW4, said that he was the one who stopped people who gathered from beating the 1st Accused up, and he was later handed over to the Police; he said that later the Police came back

and arrested 2nd accused; that the 3rd (Appellant) and 4th accused were arrested at Idima Abam (Pages 111 and 112 of the Records of Appeal).

Under cross examination, whether the wife of the deceased and her mother (who witnessed the devastating event) told him who killed his son (the deceased), he said:
“I asked Amaka and her mother… They told me that Gunmen came into the house and shot him.”

Asked whether they told him who the gunmen were, he answered: ‘No.’ (See Pages 112 and 113 of the Records)

Sadly, the wife of the deceased and her mother, who witnessed the said scene, were not called to testify, neither the man, Oluchi Apugo, who allegedly opened the gate for the deceased when he returned from the wake keeping to the house (and possibly for the gun men also) was not called to testify. But the statement obtained for the wife of the deceased, and her mother are recorded in the proof of evidence (see Records of Appeal, Pages 7 to 10 and pages 11 to 12). None of them mentioned any of the Accused persons (including the Appellant). The wife of the deceased said on page 7 of Records of Appeal:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“… I was training in my room, when I heard the sound of my husband’s car coming into the compound. It was one Oluchi Apugo who had opened the gate for my husband to come in; he came to where I was training and both of us started discussing. Suddenly, my husband looked surprised. It was then I noticed somebody with a long gun, when I turned to look at the direction my husband was starring at; the man with the gun now asked me to lie down on the floor; as I was lying down others came into the room numbering three, took my husband to the other room and started beating him. I now asked the gun men that I want to see my daughter but they asked me to face down; when I did, they dragged me to the wanting room, where my mother, Mrs. Bridget Biachi and my husband’s cousin Oluchi Apugo, where all lying down and took us into the toilet and asked us to remain quiet there…”

Why none of the eye witnesses was not called to testify is a puzzle to me, and there is evidence that a Counsel, Ukpai Ukairo Esq, wrote to the trial Court to dispense with the evidence from the said eye witnesses, or that the Court should not summon them to

give evidence.

Of course, the trial Court had frowned at such affront by the said Counsel, and had threatened him for obstructing evidence from vital witnesses. See Pages 149 to 150 of the Records of Appeal, where the trial Court, said:
“It is clear from the letter which Bar. Ukpai Ukairo urged the DPP to send to the Court, that as at the time he wrote the said letter, informing the DPP of his prohibition of the two witnesses (Deceased’s wife and mother) from coming to give evidence in this Court, that the case was validly pending before the Court. He also knew that his purported clients were star witnesses, who witnessed the gruesome murder of the deceased. It is trite law that to prevent or attempt to prevent a person, who has been duly summoned as a witness, as in the instant case, to attend the Court, is clearly an act calculated wrongly to interfere with clearly an act of intentional disrespect of the Court.” (He relied on Section 124 of the CPL).

Despite the above observation and threat, the said eye witnesses still failed to attend Court and give evidence. But surprisingly, the same trial Court that adjudged the said

wife of the deceased and her mother “star witnesses who witnessed the gruesome murder of the deceased” failed to get them to give evidence and to reflect that failure in the judgment. Rather the Court ignored the obvious legal consequence of that failure to call the eye witnesses, and strongly held the Appellant (and the other accused persons) guilty of murder, founding the same on circumstantial evidence!

What was the Circumstantial evidence that linked the Appellant to the murder of the deceased, and who ventured such evidence? The testimonies of the prosecution witnesses appeared completely wanting on the point. And so that finding proceeded from the trial Court, without any basis in evidence.

The trial Court held on page 174 said:
“In dealing with the cause of death of the deceased, this can be inferred from the entire circumstances of the case and in this case, where the deceased was shot with a short double barrel gun. The act of shooting was the cause of death of the deceased. Who did the shooting is also an issue to be inferred from the entire circumstances and the conduct of the accused persons before, during and

after the incident that led to the death of the deceased. Although no witness saw the accused persons killing the deceased, there are enough circumstantial evidence that ought to be narrowly and closely examined, in order to establish the nexus of the criminality of the accused persons.”

It did not list those circumstantial evidence that it closely examined. Whereas, the deceased wife mentioned a long gun, the trial Court said it was a short double barrel gun!

I have not been able to see any iota of the alleged “enough circumstantial evidence that ought to be narrowly examined in order to establish the nexus of the criminality of accused persons.”

The trial Court did not care to disclose such circumstantial evidence, and from who, other than dwelling on speculations and conjecturing, based on the mob mentality of the youths in the Village, who merely suspected the Appellant (and the other accused persons), when he ran to save his life after being threatened, attacked and their house burnt, by the mob on the basis of that suspicion. I am completely appalled, that the trial Judge convicted the Appellant for murder and sentenced

him to death on the basis of such cheap, flimsy and lazy reasoning, when he said:
“The act of shooting was the cause of death of the deceased. Who did the shooting is also an issue to infer from the entire circumstances and the conduct of the accused persons before, during and after the incident that led to the death of the deceased.”

On the Appellant, the trial Court said:
“If 3rd accused meant that their house was destroyed and he ran to Idima Abam to save his life… why did he not run to Idima Abam with his mother to save her life also. Another question is, why did he run to Idima Abam, the same place 4th Accused, whom he had stayed with up to 4pm on 28/12/2010 ran to and why did he also stop half way, after he had decided to join the Youths to destroy the house of Nze Nwosu, who was fingered as one of the suspects that killed the deceased.” (Page 186 of the Records)

The trial Court then held:
“From the foregoing, the 3rd Accused tried to paint a picture of a defence of alibi. He gave specific time he went to burial, slept and woke up and that was on 28/12/2010. I ask who gave the evidence that the

deceased was killed on 28/12/2010. Certainly none of the prosecution witnesses gave such evidence. The murder took place on 29/12/2010 and the 3rd accused did not account for where he was on that day of the murder. Could it be that it was on the said 28/12/2010 that he perfected all the arrangement of what happened on 29/12/2010, with 4th accused. Since he was accused as being present at the scene of crime where the deceased was killed, why did he not give account of where he was on the 29/12/2010, in rebuttal of the allegation? (Page 187 of the Records).

I have not seen any evidence from any of the Prosecution witnesses to the effect that the 3rd Accused Person (Appellant) was “present at the scene of crime, where the deceased was killed.” None of the alleged Youths, who arrested him and handed him over to the Police, gave evidence to explain why, in fact, they arrested him. The Police too did not find that out, but rather said they acted to rescue Appellant and some other accused persons from being lynched by the violent youths, who had caused mayhem in the community, burning houses of suspects and even killing one Nze, an Uncle of the

deceased, suspected to be involved in the death of the deceased.

Obviously, the PW2 corroborated the statement of the Appellant in Exhibit C, about the threat to his life in the community, as their home was burnt down, and he had to run away from the Village.

The trial Court, surprisingly, expected the Appellant to call evidence, to prove his innocence, when the Judge queried:
“Again, why did he (Appellant) not call the “Eze” Chidi Onuoha, Okorie Nwosu and even Amarachi Atum, to give evidence in support of the plea of the purported alibi and the circumstance which would have cast doubt in the circumstances that were likely to link him with the death of the deceased?” See page 187 of the Records.

Okoro Vs The State (1988) LPELR – 2494 SC; (1988) 5 NWLR (Pt.94) 255.
In C.O.P. Vs Amuta (2017) LPELR – 41386 SC, it was held:
“The constitutional provision on the presumption of innocence of an accused person is sacrosanct and settled. The burden is always on the prosecution to prove the guilt of the accused and not his business to prove his innocence. He can decide to keep mute from beginning of the trial right through to the end. It is for the prosecution to make out a prima facie case against the accused through credible evidence which must be laid bare before the Court. It is the proof of hard facts that would lead to the conviction of the accused. Without any case made out against the accused, he cannot be called upon to enter his defence, because in doing otherwise would undermine the constitutional presumption of innocence.” Per Ogunbiyi, JSC

The sum total of the evidence presented to the trial Court, which the trial Court used to convict Appellant and sentence him to death by hanging, was that the Youths of the community (who went wild at the news of the murder of Chidi Nwosu and destroyed houses and threatened people,

suspected) saw the Appellant as one of those suspected to have killed Chidi Nwosu; they burnt his family house and threatened him. Appellant ran away into hiding in another Village, Idima Abam; they went for him and caused that Village to apprehended him and hand him over to the Police. The Police IPO (PW2) confirmed this when he said:
“The 3rd – 5th accused persons ran away from the community, when the whole community gathered in one place to find out those who were responsible for the death of the deceased. They were caught by another community, who equally heard what happened and now informed the Police and we had to go to rescue them before they could be lynched.” (See Page 93 of the Records of Appeal)

Appellant was therefore convicted, because he was suspected of being involved in the killing of the deceased; and the reason for the suspicion was that he did not co-operate fully with the other youths in their suspicions and rampage over the death of the deceased; and because he ran away when his life was threatened. The trial Court based its decision to convict him particularly on the act of his running away.

That in my view was a grave error, and indeed, sad and strange to have come from a High Court, considering the myriads of judicial decisions of superior Courts, that suspicion, no matter how strong, cannot be conviction, and that the burden remains on the prosecution to prove a charge, beyond reasonable doubt, and does not shift and cannot shift to the accused person to prove his innocence. See Okoro Vs The State (supra); Nweneke Vs The State (2019) LPELR – 47018 (CA); Afolahan Vs State (2017) LPELR – 43825 (SC); C.O.P. Vs Amuta (2017) LPELR – 41386 (SC). Moreover, running away or sudden flight from even the scene of crime is never a conclusive evidence of guilt. See Emiowe Vs State (1999) LPELR – 5612 CA.

I have always cautioned against the apparent ease and rush of some Judges to convict accused persons charged for murder at the slightest provocation or allegation of brutal murder without taking pains to sift the evidence to separate credible evidence from sentimental and/or mischievous accusations, “set up” and blackmail. Life is sacred and even when a judge is empowered to pronounce the death of an accused person after

due trial, the evidence must be credible and overwhelming, leaving no room for any reasonable doubt about the involvement of the accused in the alleged offence. Judges must be warned against committing ‘judicial murder’, by reckless and unjustified conviction of an innocent person for murder, and sentencing him to death wrongly. See the case of Ajakaiye Vs The State (2014) LPELR – 24098 (CA); (2015) 5 WRN 64, where we held:
“The work of a judge is very delicate and sacred job, especially as he is sometimes vested with power to play God in determining the fate of his fellow men. The office must be exercised in deep humility and utmost care and deference to the Rule of law and the fear of God, such that if it becomes inevitable to pronounce on the death (or any punishment) of an accused person, arraigned before him, after due trial, the evidence adduced and the law will stand to vindicate him in his decision.”
It was further held in that case, thus:
“I think, where an accused person in a murder case, is tried and convicted wrongly, due to carelessness or mischief of the trial Judge, it translates to a

judicial murder, which the judge may stand accountable, especially, where there is no judicial process to review and correct the error.”
See also Nuforo Vs The State (2015) LPELR – 25994 CA; Azubuike Vs The State (2019) LPELR – 48238 (CA); Emesonye Vs The State (2016) LPELR – 40550 (CA).
That is why every charge must be properly proved by the prosecution and every lingering reasonable doubt must be resolved for the accused person. See Onafowokan Vs State (1987) 7 SCNJ 1; Okoro Vs State (1988) 12 SCNJ 191; Azubuike Vs The State (supra).
In the case of Ehiriodo Vs The State (2019) LPELR – 48234 (CA), we observed:
“I think the above findings of the trial Court, which formed the basis for the conviction of the Appellant, were strange inferences by the trial Court, completely outside the charge and the evidence relating to the charge. And they were incapable of founding the conviction of the Appellant for offence of murder. The findings were founded on speculation and insinuations, deduced by the trial Court… The Court is required to be very circumspect, especially where the liberty or life of an

accused person is at stake, in coming to its conclusion of finding of guilt of an accused person, especially on the basis of circumstantial evidence.”
The above observation appear to be replicated in this case, at hand, where the trial Judge based his conviction of the Appellant on the so-called circumstantial evidence which were completely unrelated to the charge and outside the ingredients of the offence of murder, and which were speculated by the trial Court, outside the evidence adduced before him. The fact that the prosecution failed to call the eye witnesses of the murder of the deceased should have warned the trial Court, to suspect that there was something wrong; that the prosecution had something to hide; that no credible evidence was there to sustain the charge; and to presume Section 167(d) of the Evidence Act, 2011 against the Prosecution, for withholding evidence, or failing to call their star witnesses. See Nuforo Vs State (2015) LPELR – 25994 (CA).
I must also say that the trial Court was wrong to see the failure of Appellant to call witnesses as admission of the crime; and to consider Appellant, placing reliance on the

evidence of the prosecution, as admission of the offence. It remains the duty of the prosecution to prove the charge of murder against Accused person(s) throughout the trial, and the accused can elect to keep mute. See C.O.P. Vs Amuta (2017) LPELR – 41386 SC; Okoro Vs State (1988) LPELR – 2494 SC.

I see merit in this Appeal and so I resolve the Issues for Appellant, set aside his conviction and Order his discharge and acquittal in the Charge No. HAR/2C/2012.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree

IBRAHIM ALI ANDENYANGTSO J.C.A.: I agree

Appearances:

J.C. UWANDU, ESQ. For Appellant(s)

H.I. MADU, ESQ., (who filed the Brief) but adopted by F.O. UGWUMADU, ESQ. S.C, ABIA STATE For Respondent(s)