EDIMA v. STATE
(2020)LCN/14677(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Wednesday, October 28, 2020
CA/C/82C/2019
RATIO
CRIMINAL LAW: BURDEN AND STANDARD OF PROOF IN CRIMINAL LAW
Both learned counsel have submitted and rightly too, that the burden of establishing the guilt of an accused person rests squarely on the prosecution. The standard of proof required is proof beyond reasonable doubt though not beyond the shadow of a doubt. See AKALEZI V. THE STATE (1993) 2 NWLR (prt. 273) ABOKOKUYANRO V. THE STATE (2016) LPELR 40170 (SC) 29 A – B, OLAYINKA V. STATE, AFOLALU V. THE STATE (2010) ALL NWLR (prt. 538) 812 and EMEKA V. STATE (2019)8 NWLR (prt 1673) 159 at 167 – 168. PER SHUAIBU, J.C.A.
CRIMINAL LAW: WAYS OF PROVING THE GUILT OF AN ACCUSED PERSON
The onus would be discharged once the prosecution is able to satisfy the Court by credible evidence that all the elements of the offence charged have been established and this may be done through evidence of an eyewitness, the confessional statement of the accused person or circumstantial evidence. PER SHUAIBU, J.C.A.
CRIMINAL LAW: REQUIREMENTS FOR PROVING THE CHARGE OF MURDER
For the prosecution to succeed in a charge of murder under the extant law, the following must be proved beyond reasonable doubt:-
(a) That the deceased died;
(b) That the death of the deceased was caused by the accused person; and
(c) That the act or omission of the accused person, which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was a probable consequences. PER SHUAIBU, J.C.A.
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Between
UDUAK OKON EDIMA APPELANT(S)
And
THE STATE RESPONDENT(S)
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): At the High Court of Akwa Ibom State, Oron Judicial Division, the appellant and one other accused person, were arraigned on an information containing one count charge of the murder of one John Okon Eyo contrary to and punishable under Section 326(1) of the Criminal Code, Cap 38, Vol.2, Laws of Akwa Ibom State of Nigeria, 2000.
They both pleaded not guilty and the case proceeded to trial wherein the prosecution called three witnesses namely, Okon Eyo pw1 (Father of the deceased), Ntekim Edet Bassey pw2 (Motor cycle mechanic), and Sgt. Elechi Joseph pw3 (Investigating police officer). On their part, the appellant and his co-accused testified in their own defence but called no other witness.
At the end of the trial, the trial Court (herein after referred to as “the lower Court”) found them guilty as charged, convicted and sentenced them to death by hanging.
Miffed by the said decision, appellant has appealed to this Court through a notice of appeal filed on 14/11/2017. The appellant was on 29/4/2020 granted leave to amend his notice of appeal and the said amended notice
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of appeal contains seven grounds of appeal.
The appellant filed his brief of argument on 3/9/2019 but same was deemed as properly filed on 29/4/2020. In the said appellant’s brief of argument three issues are formulated for the determination of the appeal as follows:-
1. Whether the information with which the appellant and co-accused were charged mentioned any motorcycle and whether the prosecution witnesses proved that there was motorcycle in this case.
2. Whether the learned trial judge was right when he held that from the circumstances as presented in this case, no other person but the accused persons knew what happened to the deceased and were actually involved.
3. Whether the learned trial judge was right when he held that the prosecution has proved its case beyond reasonable doubt that no other person but the accused persons killed the deceased. I find the accused guilty as charged and I convict them accordingly.
On the other hand, the respondent formulated a lone issue that is, whether from the totality of the evidence adduced at the trial, the prosecution had proved the charge of murder against the accused/appellant beyond reasonable doubt?
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Gleaning from the above, the lone issue formulated on behalf of the respondent is preferred by me for being brief, concise and quite apposite. I shall adopt the said lone issue in determining this appeal. Before delving into the respective argument of counsel on both sides, it is pertinent to state the facts of the case as contained in the record of appeal. On 30th day of September, 2012, the deceased, one John Okon Eyo a commercial motorcyclist drove out and never returned home. An inquiry of his where about by pw1 (his father) did not yield any fruitful result and he consequently reported the incident at the police Area Command Oron where he was advised to check other command. While at Okobo Divisional Police Command, pw1 received a phone call that the motor-cycle of his son (deceased) has been found and that the police have arrested the person who went to sell the deceased’s motorcycle at the new Court road, Okobo. That when the 1st accused was arrested with the said motorcycle, he also mentioned the name of the appellant herein.
Arguing the appeal, learned counsel for the appellant set out the three ingredients required to
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establish the offence of murder beyond reasonable doubt. He cited the case ofESENE V. STATE (2017) LPELR- 41912 (SC), JUA V. STATE (2010)4 NWLR (prt 1184) 217 and MATHEW V. STATE (2019) ALL FWLR (prt 995) 844 at 861. He submitted that of the three ingredients of the offence of murder, the prosecution failed to establish a link between the appellant and the offence.
Still in argument, learned counsel submitted that although pw1 stated that his son John Okon Eyo rode a motorcycle on the day of the incident and never returned, he never testified on the central issue as to the death of his son as well as the circumstances that led to his death. And that the information with which the appellant and his co-accused were charged did not mention any motorcycle and thus every pieces of evidence relating to a motorcycle goes to no issue.
He referred to the evidence of pw2 in contending that same exonerated the appellant with regards to the allegation of the sale of any motorcycle. Counsel contended that the failure of the prosecution to tender any exhibit documentary or otherwise in support of its case amounted to withholding of evidence and he urged this
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Court to invoke the provisions of Section 167 (e) of the Evidence Act, 2011.
Next, counsel contended that the evidence of pw3 is riddled with contradictions on how and where the appellant was arrested in a bit to fix him at the mechanic workshop where the motorcycle was purportedly recovered. He referred to OGU V. COMMISSIONER OF POLICE (2018) ALL FWLR (prt 928) 31 at 76-77 and ZAKIRAI V. MUHAMMED & ORS (2018) ALL FWLR (prt 964) 1913 at 1985 to the effect that where there are contradictions in the evidence adduced by a party; the Court is enjoined to reject the entire evidence; as it cannot pick and choose which of the conflicting version to follow.
It was also contended on behalf of the appellant that the findings of the lower Court that “from the circumstances as presented in this case, they cohere to show that no other person but the accused persons knew about what happened to the deceased and were actually involved” was not borne by any evidence and therefore perverse. Counsel submitted that circumstantial evidence must be cogent, complete and unequivocal. It must lead to the irresistible conclusion that the accused and no one
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else committed the crime. He cited the case of ODOGWU V. STATE (2013) 14 NWLR (prt 1373) 74 at 172.
Learned counsel for the respondent, in reaction to the above submissions reiterated the essential ingredients of establishing the offence of murder beyond reasonable doubt. He submitted that in the absence of direct evidence in proof of the offence; circumstantial evidence is an acceptable means of proof and a useful tool for bringing criminals to justice. He submitted that the conviction of the appellant was based on evidence adduced at the trial and therefore this Court has no justification in interfering with such findings. He referred to IKO V. STATE (2001)14 NWLR (prt 732) 221 and ABDULMUMINI V. FEDERAL REPUBLIC OF NIGERIA (2017) LPELR- 43726 in contending that an appellate Court can only intervened where the evidence was not properly evaluated before ascribing probative value to it. He submitted that when all the circumstances surrounding this case were taken together, the only reasonable conclusion would be that it was the appellant and his co-accused that killed the deceased.
RESOLUTION
Both learned counsel have submitted and rightly too,
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that the burden of establishing the guilt of an accused person rests squarely on the prosecution. The standard of proof required is proof beyond reasonable doubt though not beyond the shadow of a doubt. See AKALEZI V. THE STATE (1993) 2 NWLR (prt. 273) ABOKOKUYANRO V. THE STATE (2016) LPELR 40170 (SC) 29 A – B, OLAYINKA V. STATE, AFOLALU V. THE STATE (2010) ALL NWLR (prt. 538) 812 and EMEKA V. STATE (2019)8 NWLR (prt 1673) 159 at 167 – 168. The onus would be discharged once the prosecution is able to satisfy the Court by credible evidence that all the elements of the offence charged have been established and this may be done through evidence of an eyewitness, the confessional statement of the accused person or circumstantial evidence.
I have stated right from the onset that the appellant and co-accused were tried, convicted and sentenced for murder under Section 326 (1) of the Criminal Code, Cap 38, Vol.2, Laws of Akwa Ibom State of Nigeria, 2000. For the prosecution to succeed in a charge of murder under the extant law, the following must be proved beyond reasonable doubt:-
(a) That the deceased died;
(b) That the death of the
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deceased was caused by the accused person; and
(c) That the act or omission of the accused person, which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was a probable consequences.
In other words, the prosecution at the lower Court must prove beyond reasonable doubt that John Okon Eyo died and that his death was caused by the appellant. The prosecution must further show that the act of the appellant which resulted in the death of John Okon Eyo is one of six circumstances listed in Section 323(1) of the extant law. That is to say:-
(a) If the offender intends to cause the death of the person killed or that of some other person;
(b) If the offender intends to do to the person killed or to some other person some grievous harm;
(c) If death is caused by means of an act done in the prosecution of an unlawful purpose which act is of such nature as to be likely to endanger human life;
(d) If the offender intends to do grievous harm to some person for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence,
(e) If death is
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caused by administering any stupefying or overpowering things for either of the purposes last aforesaid;
(f) If death is caused by willfully stopping the breath of any person for either of such purposes.
See AKPAN V. STATE (2001) 15 NWLR (prt 737) 747, IGRI V. STATE (2012) 16 NWLR (prt 1327) 522 and CHIOKWE V. STATE (2013) 5 NWLR (prt 1347) 205. In AGU V. STATE (2017)10 NWLR (prt 1573) 171 at 175, it was held that if the act of the appellant that caused the death of the deceased is not one of the six circumstances listed in Section 316 of the Criminal Code which is impari materia with Section 323 (i) above, it is no longer murder. See EZE V. STATE (2018)11 NWLR (prt 1630) 353.
The only evidence as to the death of the deceased, John Okon Eyo is that of his father who testified as pw1. When led in chief at page 78 of the record of appeal, pw1 said:-
“Finally, I saw the corpse of John, my son who rode on a motorcycle. I saw the corpse of my son inside a thick bush in the village of the 1st accused person. I called the IPO from Ikot Akpan Abia because I had located the corpse of my son. The IPO came the next day with the police from Ikot
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Akpan Abia together with two accused persons. The police got the point where the corpse lay. At the time of discovering the corpse it had decomposed seriously to the extent that his remains were packed into a container. The police took photographs of the corpse.”
When cross-examined on the discovery of the remains of his son, pw1 answered in one breath that:-
“At the time I saw the skull the police were there.”
In another breath, he said:-
“I discovered the corpse myself.”
As regards to how pw1 discovered the remains of his son he responded thus:-
“At the time I saw his corpse I also saw a pair of slippers that he wore that day.”
At the trial of the appellant, neither the police officers with whom pw1 discovered the skull of his son testified nor the pair of the deceased’s slippers tendered. There was basically no evidence linking the recovered skull and the deceased. Scientific evidence in this case is very material to establish logical connection with the issue in order to influence decisively the establishment of the fact in issue. The failure to present material evidence to show
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that the skull recovered was indeed that of the deceased is my view fatal to the prosecution’s case.
On whether the death of the deceased was caused by the accused person (now appellant), the learned trial judge relied solely on the evidence of pw2 to arrive at the conclusion at page 136 of the record of appeal that:-
“they approached the pw2 to sell the motorcycle for them. The decomposed remains of the deceased were found in a thick bush in the village of the Dw1. How did they come by the motorcycle if they did not know the deceased and did not know how he died and who killed him? How did the two accused person come by the motorcycle? Did they buy it from another person?”
Ironically, pw2 himself said he did not know the 2nd accused, the appellant herein. At page 84 of the record of appeal, pw2 states:-
“I do not know the 2nd accused person.
“The 2nd accused was not among those that came to my workshop.”
The question then is on what basis did the learned trial linked the appellant with the death of the deceased? Facts leading to the Court’s conclusion must be clearly found but in the
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present case, the prosecution did not adduce legally admissible evidence linking the appellant to the death of the deceased. In SARAKI V. F.R.N. (2018) 16 NWLR (prt 1646) 405 at 448, 457 and 163, the Supreme Court was emphatic that the verdict of Court must not only commend confidence but must be punctuated with logical thinking based on cogent and admissible evidence. And having failed woefully to link the appellant with the death of the deceased; it is inconceivable to attribute intent on the part of the appellant to kill or cause grievous bodily harm on the deceased.
Learned counsel for the appellant has submitted and I agree with his submission that to secure conviction upon circumstantial evidence, such evidence must be cogent, complete and unequivocal. Circumstantial evidence can therefore take on such a logical reading with the precision of mathematics that leave no room for any other conjecturing possibility than that the crime for which an accused is charged was committed by him and could not have been done by another. See AMOS V. STATE (2019), NWLR (prt 1653) 206 at 233. In the instant case, the appellant’s conviction and sentence
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eventuated from a remote evidence of circumstance as well as from conjectures.
Learned counsel for the respondent has strenuously argued that it is the primary duty of the trial Court to evaluate evidence before it and ascribe probative value to such evidence. It is instructive to note that there is a clear distinction between a finding of facts based on credibility of witnesses and a finding of fact based on evaluation of evidence. In the latter case, an appeal Court is in the same position as the trial Court and so it can proceed to examine the evidence and come to a different finding from that of the trial Court. Also a finding of fact involves both perception and evaluation. A trial Court takes down all relevant evidence. That is perception. Thereafter the Court weighs the evidence in the surrounding circumstances of the case. That is evaluation. It is only when evaluation of evidence is properly done the finding of the trial Court are difficult to fault by an appellate Court. In the instant case, the lower Court did not properly evaluate the evidence in arriving at the conclusion that –
“From the circumstances as presented in this
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case, they cohere to show that no other persons but the accused persons who knew about what happened to the deceased and were actually involved.”
In the light of the fact that the lower Court has arrived at the conclusion on the basis of such circumstantial evidence that does not point unequivocally; positively, unmistakably and irresistibly to the fact of the offence of murder under Section 326 (i) of the Criminal Code aforesaid, is intentionally committed by the appellant, the said conclusion is clearly not sustainable. Thus, the lone issue is resolved in favour of the appellant. The appeal is meritorious and is accordingly allowed. The judgment of the lower Court delivered on 27th October, 2017 is hereby set aside. The appellant is discharged and acquitted.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Muhammed L. Shuaibu, JCA. I agree with the reasoning and conclusion and I also allow the appeal.
The Appellant in this case was wrongly convicted of the offence of Murder based on suspicion and speculation.
The law frowns on suspicion and speculation.
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The evidence to be utilized in convicting any person for any crime must be credible evidence even if it was circumstantial.
It is trite that suspicion however grave cannot take the place of legal proof. See ALBAM AJAEGBO V. STATE [2018] 11 NWLR 484 SC; ABIEKE V. STATE [1975] 9 – 11, SC 97; BOZIN V. STATE [1985] 2 NWLR [Pt. 8] 465; STATE V. OGBUBUNJO [2001] 2 NWLR [Pt. 698] 576; ORJI V. STATE [2008] 10 NWLR [Pt. 1094) 31.
And so it is that a Court of law is not permitted to speculate but to act on empirical evidence before it. See IGABELE V. STATE [2006] 6 NWLR [Pt. 975] 100; ABIEKE V. STATE [1975] 1 ALL NLR [Pt. 11] 57.
For these and the fuller reasons contained in the lead judgment, I also allow the appeal.
HAMMA AKAWU BARKA, J.C.A.: The judgment just delivered by my learned brother, Muhammed L. Shuaibu, JCA, was made available to me in draft. I agree with the reasoning and conclusion on the lone issue canvassed. I find merit in the appeal and allow the same.
I order that appellant be discharged and acquitted.
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Appearances:
JULIUS IDIEGE, ESQ. For Appellant(s)
CECILIA UMANAH, PSC, MOJ, AKS For Respondent(s)
