POLYCAP v. STATE
(2020)LCN/15257(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Friday, May 15, 2020
CA/C/59C/2019
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Ita George Mbaba Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Between
ABIGAIL IMOH POLYCAP APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
INGREDIENTS TO ESTABLISH THE OFFENCE OF CONSPIRACY
It is not possible for one to conspire to commit offence, as conspiracy suggests and requires the consensus or agreement of two or more persons to do something. One cannot conspire alone! See the case of Akereyeli Vs The State (2015) LPELR – 25811 CA, and our recent case of the State Vs Iheanachor (2019) LPELR – 49301 CA, on Conspiracy, where we held:
“The law is trite, that in a charge of conspiracy to commit felony, the basic ingredients to be established is agreement by the conspirators, to pursue the unlawful act. In the case of Adeyemi Vs State (2012) ALL FWLR (Pt.606) 492 at 511, it was stated that, to prove conspiracy:
(1) There must be two or more persons in concert;
(2) They must form a common intention;
(3) The common intention must be towards prosecuting an unlawful purpose;
(4) An offence must be committed in the process;
(5) The offence must be of such a nature that its commission was a probable consequence of the conspiracy”
Of course, often direct proof of working in concert to achieve an ignoble purpose is difficult to establish, and so the Court may have resort to inferences. See the case of Dr. Segun Oduneye Vs The State (2001) FLWR (Pt.38) 1203 at 1205, where the Supreme Court held:
“Since the gist of the offence of conspiracy is embedded in agreement or plot between the parties, it is rarely capable of direct proof; it is invariably an offence that is inferentially deduced from the acts of the parties thereto, which are focused towards the realization of their common intention or mutual criminal purpose. It is predicated on circumstantial evidence, which is evidence, not of the fact in issue, but of other facts which facts in issue can be inferred. Evidence in this connection must be of such quality that irresistibly compels the Court to make an inference as the guilt of the accused…”
See also Bernard Efe Ajomayan Vs The State: CA/C/455C/2018, delivered on 7/5/2020 (Pages 45 – 47). PER MBABA, J.C.A.
INGREDIENTS OF THE OFFENCE OF MURDER
The law is trite, that one of the ingredients of offence of murder is that the prosecution must prove that the Accused person’s act or omission, resulted in the death of the deceased and that the Accused person intended the consequences of his said act or omission, or should have known that death or grievous bodily harm would be the probable consequence of his said act or omission. See the case of Akinsuwa Vs The State (2019) LPELR – 47621 SC, where in stating the ingredients of offence of murder, and how to prove it, my Lord, Sanusi JSC re-stated:
“On the offence/charge of murder, it is settled law, that in order to obtain conviction of any criminal offence, the prosecution could use any of the under mentioned methods…
(a) Through evidence of eye witness or witnesses
(b) Through voluntary confessional statement of the accused, or accused persons, and (e) Through circumstantial evidence. Agboola Vs The State (2013) LPELR – 20652 (SC).
Any of the above mentioned methods could be adopted by the prosecution to establish the offence of murder by proving the under-listed ingredients of offence of murder, namely:
(1) The death of a human being;
(2) That the death was caused by the act or commission of the accused person/and
(3) That the act of the accused was done intentionally or with knowledge that death or grievous bodily harm was the probable consequence. See Okeke Vs The State (1999) 2 NWLR (Pt.590) 246 at 273.”
See also State Vs Sunday (2019) LPELR – SC709/2013 and Tobi Vs The State (2019) LPELR – 46537 (SC), where it was held:
“… there was no intervening factor besides the stab wound inflicted on the deceased by the appellant. To my mind, therefore, the death of the deceased was as a result of and attributed to the act or acts of the appellant alone. There is, in my opinion, a direct link between the injures sustained by the deceased as a result of the knife stabs inflicted on the body of the deceased and his ultimate death. It is common knowledge and is indeed trite law, that infliction of serious and severe wound could have anticipatory natural result of death and the person who inflicted such serious or server wounds be guilty of murder.”PER MBABA, J.C.A.
WHETHER OR NOT THERE MUST BE A CASUAL LINK BETWEEN THE ACCUSED PERSON AND THE DEATH OF THE DECEASED
There must, therefore, be a causal link, between the Accused person and the death of the deceased, without any intervening cause. Of course, where the death of the deceased resulted, immediately, from the act(s) or omission of the Accused person, for instance, the deceased died at the spot of the fight, upon being slapped by the Accused person, the inference would be strong, that the slap or act of the Accused person caused the death of the deceased. See the case of State Vs Sunday (supra); Ozo Vs The State (1971) ANLR 112; Ben Vs The State (2006) 16 NWLR (Pt.1006) 582; Nwachukwu Vs The State (2002) 12 NWLR (Pt.782) 543. (In which case medical report may not even be necessary to prove culpability).
In the case of Ochiba Vs State (2011) LPELR – 8245 (SC), it was held:
“In every case where it is alleged that death has resulted from the act of a person, a link between the death and the act must be established, proved beyond reasonable doubt. In the cause of events, the cause of death must just be proved. Where the cause of death is ascertained, the nexus between the cause of death and the act or omission of the accused alleged to have caused it, must be established. There are factual questions to be answered by the consideration of evidence. In our adversarial system of criminal justice, the prosecution must prove its case beyond reasonable doubt, with vital and relevant evidence it can produce.” Per Adekeye JSC.” PER MBABA, J.C.A.
WHETHER OR NOT A SUSPICION CAN LIE A CONVICTION
And by law, suspicion, no matter how strong, cannot lie a conviction. See EMESONYE VS THE STATE (2016) LPELR – 40550 CA; ONAFOWOKAN VS STATE (1987) 7SCNJ 1; OKORO VS STATE (1988) 12 SCNJ 191. This is because, every charge must be proved beyond reasonable doubt and where there is a lingering doubt, the same has to be resolved for the accused person.”
In the case Emeto Vs The State (2018) LPELR – 44990 CA, which founded on Suberu Vs State (2010) LPELR – 3129 (SC), it was held that:
“A Judge should not descend into the arena. A Court has no duty to bridge the yawning gap in the case of a party. This is more so since this is a criminal matter…” Fabiyi JSC. See also Egbebu Vs IGP & Ors (2016) LPELR – 40224 CA. PER MBABA, J.C.A.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellants filed this Appeal against the judgment of Akwa Ibom State High Court in Charge No. HA/21C/2016, delivered on 4/7/2018, by Hon. Justice Iniabasi Udobong, wherein the learned trial Judge convicted the Appellant and sentenced her to death by hanging.
At the Lower Court, Appellant was charged on an Information, as follows:
COUNT I
STATEMENT OF OFFENCE:
CONSPIRACY TO MURDER, contrary to Section 331 of the Criminal Code, Cap. 38, Vol.2 Laws of Akwa Ibom State, 2000.
PARTICULARS OF OFFENCE:
ABIGAIL IMOH POLYCAP (F) on or about the 23rd day of May, 2015, at Ediene Abak Village, Abak Local Government Area in the Abak Judicial Division conspired to kill one ERIKAN ISREAL OKON (M).
COUNT II
STATEMENT OF OFFENCE:
MURDER, contrary to Section 326(1) of the Criminal Code Cap. 38, Vol. 2 Laws of Akwa Ibom State, 2000.
PARTICULARS OF OFFENCE:
ABIGAIL IMOH POLYCAP (F) on or about 23rd day of May, 2015, at Ediene Abak Village, Abak Local Government Area in the Abak Judicial Division unlawfully killed one ERIKAN ISREAL OKON (M). Appellant was arraigned on 3/8/2016 when she pleaded NOT GUILTY to the charge. After taking evidence from witnesses and listening to the addresses of Counsel, the trial Court, in a considered decision, held Appellant guilty of both Counts, as charged, and sentenced her to death, by hanging. It said:
“On whether the act of the Accused person caused the death of the deceased, the Accused person slapped the deceased and her Aunty beats (sic) the deceased, what was their intention, other than to inflict grievous bodily harm on the deceased and cause his death as in this charge. The Accused admitted killing the deceased and pleaded for forgiveness. The Accused person has failed to explain away why she was on the run on hearing of the death of the deceased instead (sic) reporting to the Police.
On the totality of evidence in this case before this Court, I reject the suggestion that there was a break of chain of causation brought in by Counsel for Accused person in his written address which is not borne out of evidence. I hold that by raising of the issue of break in the chain of causation by Counsel, the Accused has admitted that the fight could have caused the death but the chain of causation was broken. I have carefully consider (sic) the evidence of the prosecution witnesses and the lone evidence of the Accused, including their demeanour before this Court. I cannot find or lay my hand on any defence that avail the Accused person in this case no matter how minute. On the whole, the case of the prosecution is proved beyond doubt and I find the Accused person guilty of conspiracy and murder as charged and convict her accordingly…” (See pages 218 – 219 of the Records of the Appeal).
Dissatisfied with the above decision, Appellant brought this Appeal, on 13/8/2016, as per the Notice and grounds of Appeal on pages 221 to 229 of the Records. Appellant filed her brief of Arguments on 14/02/2019, which was deemed duly filed on 8/4/2019.
In the Brief, Appellant distilled five (5) Issues for the determination of the Appeal, as follows:
(1) Whether the Learned trial Judge was wrong when he held that all the ingredients of conspiracy which can be inferred from the surrounding circumstance of this case is proven by the prosecution. (Grounds 2 and 3)
(2) Whether the learned trial Judge was wrong when he held that the contradiction talked about is not material and does not go to the root of the charge. (Ground 4).
(3) Whether the learned trial Judge was wrong when he held that the Appellant admitted to killing the deceased and pleaded for forgiveness (Ground 5)
(4) Whether the learned trial Judge was speculative in his findings of the cause of death of the deceased. (Grounds 6, 7 and 8)
(5) Whether the prosecution proved the guilty of the Appellant beyond reasonable doubt to secure the conviction and sentencing of the Appellant to death for the offence of murder. (Grounds 1 and 9).
The Respondent filed its brief on 14/6/2019 and it was deemed duly filed on 6/5/2020, when this Appeal was heard. In it, the Respondent formulated 3 Issues for the determination of the Appeal, namely:
(1) Whether or not the learned trail (sic) Judge was right when he held that the offence of conspiracy was proved by the prosecution against the Appellant.
(2) Whether or not the perceived contradiction complained of by the appellant was substantial and material to the detriment of the prosecution case at trial.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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(3) Whether or not the offence of murder was proved against the appellant to warrant her conviction and sentence.
The Appellant filed a Reply Brief on 19/6/19 to respond to the Respondent’s Brief. And when the Appeal was heard, on 6/5/2020, Counsel, on behalf of the parties adopted their said Briefs and urged us, accordingly.
Arguing the Appeal, Appellant’s Counsel, J.O. Idiege Esq, on Issue one, said there was no evidence in proof of conspiracy to the effect that Appellant conspired with her Aunt to beat the deceased to death. He relied on the case of Akogwu Vs The State (2018) ALL FWLR (Pt.966) 314 at 333 on the ingredients of conspiracy:
“…an agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement’s objective, and action or conduct that furthers the agreement, a combination for an unlawful purpose.”
Thus, Counsel said conspiracy involves “agreement of two or more minds”; that an individual, like Appellant, cannot be said to conspire or agree with herself to do or cause to be done an unlawful act, or a legal act by unlawful means. He also relied on Osho Vs State (2018) ALL FWLR (Pt. 966) 233 at 250, on how to prove offence of conspiracy. Counsel referred us to the evidence of the PW4, who said:
“I witnessed the fight between the Accused person and the deceased. It was only the Accused person and the deceased that fought. The fight lasted about five (5) minutes.” Page 198 of the Records.
He submitted that even the particulars of the offence did not state that Appellant conspired with her Aunt Patience, to fight the deceased as held by the trial Judge. Thus, the trial Judge was wrong to hold that the Aunt Patience, held the deceased in his hand. Counsel said the evidence by the PW4 had explained how the said Aunt (Patience) emerged at the scene; that the Accused person was “shouting on top of her voice as the deceased held unto her hair” – (Page 196 of the Records). He urged us to hold that the ingredients of conspiracy was not therefore proved.
On Issue 2, Counsel said the trial Court was wrong to hold that the contradiction in the evidence of the prosecution was not material and did not go to the root of the charge. Counsel referred us to the evidence of PW2 (I.P.O.) who alleged that the father of the deceased “reported a case of murder of his son, one Erikan Isreal Okon against one Abigail Imoh polycap (the Accused person) and two others, now at large…” (Page 188 of the Records); that the PW2 further said:
“… the Accused person was supported by her cousin, one Patience and the Accused person’s mother.”
But that the PW4 (one Evangelist Uduakobong Isaac Ukpong), who said he witnessed the fight, said:
“… The deceased was dragging the accused person hair to retrieve his phone and that was when the fight started… It was only the Accused Person and the deceased that fought.” (Pages 197 – 198 of the Records)
From the evidence of the PW2 and PW4, as to the number of people who fought with the deceased, Counsel said there were contradictions, which the trial Court said were not material. Counsel relied on the case of Agbo Vs State (2006) ALL FWLR (Pt.309) 1380 at 1398, to the effect that:
“A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated… two pieces of evidence contradicts one another when they are by themselves, inconsistent.”
Counsel said the contradiction in the evidence of the Prosecution were material, contrary to the findings of the trial Court; that going by the evidence of PW4, it was illogical for the trial Court to conclude that “Accused Person and her Aunty, Patience, who held the hand of the deceased for the Accused to beat the deceased, conspired to beat the deceased.”
Counsel, again relied on Agbo Vs State (supra) to the effect that:
“Where two or more witnesses testify in a criminal prosecution and the testimony of such witness are of contradictory and irreconcilable, it would be illogical to accepted and believe the evidence of such witnesses.”
On Issue 3, Counsel said the trial Court was wrong to hold that Appellant admitted killing the deceased and pleaded for forgiveness (page 219 of the Records of Appeal). Counsel said that such finding was not borne out of evidence on the printed records; that no prosecution witness gave such evidence, and that Appellant’s defence did not also admit the offence. Counsel reproduced the evidence of the Accused person at the trial and her cross examination, to show that there was no such admission, saying that the findings by the trial Court that Appellant “admitted killing the deceased and pleaded for forgiveness” were perverse. Counsel relied on the case of Mini Lodge Ltd Vs Ngei (2010) ALL FWLR (Pt.506) 1806 at 1834, on when a finding of Court is said to be perverse.
On Issue 4, whether the trial Judge was speculative in his findings on the cause of death, Counsel answered in the affirmative. He said that the evidence did not establish that Appellant was the cause of the death of the deceased; that the trial Court was speculative, when it held that:
“The slap the Accused person gave the deceased on his face and the beating by her Aunty Patience, may have resulted in the bleeding shock, which led to the deceased being slumped (sic) but for the quick intervention of PW4.” (Page 218 of the Records)
That the trial Court had earlier, on page 215 of the Records, said:
“It is probable that something was used in hitting the deceased as the Accused person is economically (sic) with the truth.”
Counsel said the above findings of the trial Court were quite speculative; that Appellant was 18 years old, at the time of the offence and a nursing mother of a one year and 5 months old child, while the deceased was about 27 years old, as at the time of his death and the medical (autopsy) report on the deceased had stated that “It could be that the deceased had an ailment.” (Page 32 of the Records)
Counsel said that the extra judicial statement of the Appellant which the trial Court relied on (Exhibit D) was not admitted to prove the truth of its content, but to prove the fact that it was made. He relied on the case of Nasiru Vs The State (1999) 2 NWLR (Pt.589) 87; Bayo Adelumola Vs The State (1988) 1 NWLR (Pt.73) 683; he said that the Exhibit D was relevant to the trial only to the extent that she made the statement to the Police, and not to the truth of its content; thus, the learned trial Court was wrong to have relied on the content of the Exhibit D to determine the truth of and/or evidence of any prosecution witnesses before the Court. He added “that the Court cannot make use of the Statement to the Police, if it is inconsistent with the testimony of the accused in Court.” He relied on Archibong Vs State (2006) ALL FWLR (Pt.323) 1747 at 1773.
Counsel added that in relying on the Exhibit D to hold against Appellant, the trial Court demonstrated clear bias against Appellant, considering the fact that she and the deceased only had a fight, and PW4 showed that the deceased held unto her hair causing the Appellant to shout for help; that the Court was rather speculating as to the probability of something being used to hit the deceased; or “that the slap the Accused person gave to the deceased… and the beating by her Aunty… that may have resulted in the bleeding shock!”
Counsel relied on DGBSS Vs Briggs (2007) ALL FWLR (Pt.344) 53 at 76 – 77 to the effect that “Courts are not given a speculate on any matter, be it on a question of fact or law.”
He also relied on Adegbite Vs State (2018) ALL FWLR (Pt.951) 1855 at 1881, where my lord, Galinje JSC, held:
“A Court should not decide a case on mere conjecture or speculation. Courts of law are Courts of fact and laws. They decide issues on facts established before them and on laws. They must avoid speculation.”
On Issue 5, Counsel submitted that the prosecution failed to prove the charge (the guilt of the Appellant) beyond reasonable doubt. He referred us to his earlier arguments under Issues 1 and 2 and said that a resolution of the same for Appellant, would also accrue same benefit to Appellant, on this Issue. He relied on Section 138 of the Evidence Act, 2011 on the burden of proof in criminal trials, that the prosecution must prove the charge, beyond reasonable doubt. He relied on The State Vs Ajie (2000) 3 NSCQR 53; (2000) 7 SC (Pt.1) 24.
Counsel repeated the contradictions in the evidence of PW2 and PW4, and said that the trial Court had a duty to explain its preference of one version of the evidence to the other, which it did not do (Nwalu Vs The State (2018) ALL FWLR (Pt. 966) 262 at 277).
He urged us to resolve the Issues for Appellant, allow the Appeal and set aside the decision of the trial Court.
The Respondent’s Counsel, F. J. Itim Esq (D.D.P.P. AKS), who argued the brief settled by Joseph Umoren Esq (D.P.P. AKS), on their Issue one, urged us to resolve against Appellant, Counsel said that the prosecution can discharge the burden of proof by:
(a) Producing direct evidence of eye witness;
(b) By confessional statement of the Accused person, which must be free and voluntary or
(c) By circumstantial evidence. He relied on Oseni Vs The State (2012) Vol. 208 LRCN 151.
On conspiracy, Counsel said the same is not always capable of direct proof. He relied on Iboji Vs The State (2016) 255 LRCN 173 at 185. Thus, he said it is open to the Court to infer conspiracy from the facts of the case Iboji Vs State (supra) and Segun Onnye Vs The State (2011) 2 NWLR (Pt.697) 311; Bouwor Vs The State (2016) 252 LRCN 1 at 14; Daboh Vs The State (1973) 5 SC (Reprint) 122 at 134; Friday Vs The State (2016) 257 LRCN 1 at 12.
In this case, Counsel said the trial Court relied on the statement of the Appellant to the Police (Exhibit D) as well as on a community of evidence in the case, to infer the proof of conspiracy – the existence of agreement between Appellant, the mother and one Patience, who were at large, to commit the offence of murder; he said that the evidence of PW2 was relevant to assist the trial Court in coming to that conclusion. He relied on Akpan Vs The State (2018) LPELR – 46003 (CA); Anyasodor Vs The State (2018) 8 NWLR (Pt. 1620) 107 at 125; Olaoye Vs The State (2018) 8 NWLR (Pt. 1621) 128 at 309.
Counsel also relied on Obiako Vs The State (2002) 6 SC (Pt.11) 33 at 39, to submit that where the Court arrives at a conclusion that the prosecution has established some community effort on the part of the accused person, aimed at committing a crime, it will be safe to convict for the offence of conspiracy.
Counsel, however, conceded that an individual cannot conspire to commit an offence, but said that, where evidence shows that the other conspirators are either dead or on the run, the Court can safely convict the lone Accused person for the offence of conspiracy. Thus, the fact that Appellant was charged alone, was of no moment. He argued that the Court relied on PW2, who had revealed the involvement of Appellant’s mother and Cousin, Patience, in the fight; that from her evidence, Patience held the deceased by the hand while Appellant was busy throwing punches on the deceased; that the stick used in hitting the deceased was taken away by Appellant’s mother, thus frustrating Police effort in recovering the same. Counsel further relied on Akereyeli Vs The State (2015) LPELR – 25811 CA, where it was held:
“It could then rightly be said that while one person cannot commit the offence of conspiracy, one person can rightly be tried and convicted for same, if the accomplice is proved to be at large or is dead as in the instant case. The pertinent question is; as at the time of the death or disappearance of the accomplice, has the offence been consummated? If the answer is in the affirmative, then one person alone can lawfully be tried and convicted for the offence of conspiracy.”
Counsel said, in this case, the offence of conspiracy to murder was consummated on 13/5/2015, before Appellant was arrested. He added that whatever short coming was there in the drafting of the charge, or its particulars, the same cannot defeat or invalidate the trial. He relied on Amadi Vs The State (2017) LPELR – 42013 CA; Abacha Vs The State (2002) 11 NWLR (Pt.779) 457; Akeem Vs FRN (2018) LPELR – 43892 CA.
On Issue 2, whether the perceived contradiction complained of was substantial and material to the detriment of the prosecution’s case at the trial, Counsel answered in the negative. He said that the contradiction was not substantial, it must relate to the element of the offence and not on peripheral matters, Counsel said whether the Appellants fought alone with the deceased or with her Aunty, and perhaps with the mother too (by her side), was not material and as such cannot affect the justice of the case. He relied on Alao Vs The State (2011) LPELR – 1473 (SC) and Akpa Vs The State (2008) LPELR – 368 SC – where it was held:
“For contradiction in the evidence of prosecution witnesses to affect conviction, it must raise a doubt as to the guilt of the accused… a contradiction which is peripheral to the issue or issues in the matter will not avail an accused person, such as discrepancy in the two December dates.”
Counsel also relied on Ikemson Vs The State (1989) LPELR – 1473 SC.
On Issue 3, whether or not the offence of murder was proved against Appellant to warrant her conviction and sentence, Counsel answered in the affirmative. Counsel submitted that for prosecution to prove offence of murder it must prove that the deceased died; the death was caused by or resulted from the act of the accused person; the act of the accused person was intentional, with the knowledge that death or grievous harm was its probable consequence. He relied on Kabaka Vs State (2011) Vol. 202 LRCN 171; Balogun Vs State (2018) Vol. 281 LRCN 189 at 201 and Edoho Vs The State (2010) 42 NSCQR 451 at 456.
Counsel said there was proof that the victim (deceased) died; he argued that the 2nd and 3rd elements were also established, relying on the evidence of PW2 (I.P.O.), who said:
“From my investigation, the accused person hit the deceased head with stick and he managed to his residence which is quite close to the scene of crime and fell down, and his landlord, one Peter, the Village Secretary… (now late) took him to the Apostolic Church at Ibanang, where the deceased died.”
Counsel said the facts and evidence gathered from investigation, dutifully carried out by the Police, are admissible and the Court can rightly act on them – Akpan Vs State (supra); Olaoye Vs State (supra). Counsel also referred us to the evidence of the Appellant in Exhibit D, where he admitted slapping the deceased on the face; that Patience held him in this hand, but she (Accused) did not know if Patience used anything to hit him, since it was night. Counsel urged us to hold that a man intends the natural consequences of his act; that where death occurred, within a year and a day of the act of the Accused, the presumption is that the act caused the death. He relied on Uyo Vs A.G. Bendel State (1986) LPELR – 3452 (SC). He urged us to hold that the trial Court was right to hold that the offence of murder was established against the Accused person. Counsel referred us to the Exhibit D, where Appellant said:
“I know to kill is against the law. I did not know that what I did will result in his death. I am pleading that I should be forgiven.”
Counsel submitted that the trial Court did not go outside the evidence on record to find Appellant guilty, but relied on the evidence before it. He urged us to resolve the Issues for the Respondent and against the Appellant, and to dismiss the Appeal.
In his Reply Brief, Appellant’s Counsel, on the allegation (and admission) by Respondent, that an individual cannot conspire with himself to commit offence, but that, where there are evidence on record to show that other conspirators are either dead or on the run, the Court can safely convict the lone accused person for conspiracy, Counsel urged us to note that the Appellant was arraigned, tried and convicted alone and there was no particulars that she conspired with anybody, dead or at large!
On the claim that the contradiction in the prosecution evidence was peripheral and not substantial, Appellant’s Counsel said the Respondent had, at least, admitted that contradiction existed. He reiterated that the contradiction was substantial to the root of the offence.
Other issues in the Reply brief appear to be a rehash of the main Brief, which is not what a Reply brief is about. See Ozuruoha Vs Alozie & Ors (2019) LPELR – 46906 (CA); Ikine and Ors Vs Edjerode & Ors (2001) LPELR – 1479 (SC); ABC (Transport CO.) Ltd Vs Omotoye (2019) LPELR – 47829 (SC).
RESOLUTION OF THE ISSUES
I shall consider this Appeal on the 3 Issues, as distilled by the Respondent, which I think, aptly summarized the 5 Issues distilled by the Appellant. I shall take the Issue one, which touches on the charge of conspiracy (and the same agrees with Appellant’s Issue one) first, and thereafter, the issues 2 and 3, together. (And the said issues 2 and 3 appear to have summarized Appellant’s Issues 2, 3, 4 and 5 – Respondent’s Issue 2, agreed with Appellants Issue 1, while Respondent’s Issue 3 kind of summarized Appellant’s Issues 3, 4 and 5).
A brief facts of this case at the lower Court, revealed that Appellant and the deceased had a fight, following some disagreement, when the deceased failed to release the Appellant’s phone to her after the Appellant had submitted same for charging. The deceased wanted Appellant to come for the phone on Monday, (this was Saturday), while Appellant insisted on getting it, immediately. She seized the deceased’s phone to compel him to release her phone. The fight ensued and the deceased held onto Appellant’s hair, dragging it and causing her to be shouting, for help.
The said shouting may have attracted the PW4 and others to the scene, and I think, the evidence of PW4, who witnessed what transpired should be relevant. On 9/8//2017 the PW4, Evangelist Uduakobong Isaac Ukpong, testified as follows, at the Lower Court:
“On 23/5/2015, the Accused person gave the late Erikan, a phone to charge for her in Erikan’s shop in the Accused person’s fathers compound at No. 84 Old Uyo Road, Ediene Abak. She gave the phone to the deceased at 8pm – 9pm to charge and by 9pm the deceased parked the batteries he was using to do his business of phone charging and close his shop. The Accused person went to collect her phone when the deceased has closed his shop. The deceased who has closed told her that he has parked (sic) and locked his shop and that he will not be able to open it anymore. The Accused person pleaded with him but he said he should come back on Monday. The 23/5/2015 was a Saturday. The Accused person picked the deceased phone and insisted that until the deceased gives her, her phone, she will not return the deceased phone. The plea of the deceased person to the Accused person to give his phone fell on deaf hear. I got out of my shop to separate the deceased and the Accused person, who was now shouting on top of her voice as the deceased held unto her hair. The deceased has earlier left his machine before returning to struggle to retrieve his phone from the Accused Person. The aunty of the Accused person by name Patience on coming out use (sic) her hand to beat the deceased. I separated them when the deceased was about to slump. I held him. The Accused person hid the deceased phone inside her hair. During the struggle, the phone fell down. The deceased on regaining consciousness left the scene out of announance (sic) (annoyance), without taking his phone. In the morning, we heard that the deceased is dead…” (See pages 196 – 197 of the Records of Appeal).
Under Cross examination by Mr. Ifiok Udoma (Counsel for Accused person) PW4 said:
“I witness (sic) the entire fight. The deceased was dragging the Accused person hair to retrieve his phone and that was when the fight started… I witness (sic) the fight between the Accused person and the deceased. It was only the Accused person and the deceased that fought. The fight lasted about five (5) minutes. I did not see any item with the Accused person during the fight. There was no injury during the fight except when I wanted to separate the deceased and the Accused person. After separating the fight, the deceased started his motor cycle and left. When the deceased started his motor cycle and left, I did not see him entering his house. I did not see any blood stain on the deceased. The deceased did not die at the scene of the fight. I don’t know how the deceased died, except from the fight.” (See pages 197 – 198 of the Records of Appeal).
But PW1 – A Police Inspector (Edet Okon) who said he was the Investigating Police Officer (I.P.O) of the case told the Court, under cross examination:
“… The statement of the deceased father prompted the investigation. The scene of crime is the compound of the Accused person where the deceased is (sic) doing business. The deceased did not die at the scene of crime… The victim slumped at the scene of crime and his lifeless body taken to the Church for prayers to revive him. I now say the victim slumped at the door post of his dwelling premises. This happened immediately after the fight. I do not know the time the victim slumped. The distance between the scene of crime and the place the victim slumped is very short… I did not interview the Pastor of the Church. I did not discover any object.” (Underlining mine) (Page 185 of the Records)
The PW2, Sgt Unyime Philip, who also claimed to be the IPO of the case, said she recorded the Statement of the complainant (Deceased father) to the Police and that of an eye witness (PW4). She said:
“From my investigation the Accused person hit the deceased head with a stick and the deceased managed to his residence which is quite close to the scene of the crime and fell down and his landlord, one Peter the Village Secretary of Ikot Oku Ibana (now late) took him to the Apostolic Church at Ibanang, where the deceased died. The father of the deceased was informed by the Pastor of the Church and he rused (sic) to the Church and the corpse was taken to the complainant house.” (See Pages 180 – 190 of the Records) (Underlining mine).
Under cross examination, the PW2 said:
“My investigation was not conclusive. My investigation was preliminary. The investigation was concluded at the state C.I.D. The evidence I gave today is borne out of my investigation and not given to be (sic) by the deceased father and Uduakobong Ukpong. In my investigation, it was revealed that the Accused person used stick to hit the deceased. I visited the crime scene but the stick used by the Accused person to hit the deceased was taken away by the mother of the Accused person. Uduakobong separated the fight between the Accused person and the deceased. The deceased died in his compound immediately after the fight. The deceased fell down from his motor cycle when he started it to leave the scene and move and fell down by their compound, quite close to the scene of the fight. The deceased fell down in the ordinary floor, there was no wounding object on the ground. It is the landlord that picked up the deceased. The deceased died as he was taken to church.” (Underlining mine) (see page 191 – 192 of the Records)
The medical doctor, who conducted the autopsy on the body of the deceased, was not called to testify, but the Report he submitted to the Police was tendered by the PW1 – as shown on pages 31 to 33 of the Records of Appeal, indicated, thus:
Circumstances of suspicion (if any): “must have been suffering from kind sickness or another” … (Page 31 of the Records)
Any other useful information:
It could be that the deceased had an ailment,
Medical Report:
Body is that of a young man measuring 168cm in length. There is no obvious sign of trauma to the body externally. Internal examination reveal intact intra-abdominal organs.
Head Region:
There is a linear skull fracture of the occipital bone with intra-cerebral bleed terminating in shock.
The cause of death in my opinion to by INTRACEREBRAL BLEED WITH SHOCK.
The Appellant gave evidence in her defence and denied committing the offence, as follows (as DW1):
“On 23/5/2016 (sic) I gave my phone to one Erikan Isreal (sic) for charging. On demanding for the phone, he told me to return on Monday for the phone. I gave the phone at about 3.30pm. I told him that I will not be able to wait till Monday. I took his phone that was on the table as security for my phone. He packed my hair and one Uduak Ukpong appealed to him to let off my hair but he refused. After being separated, he got annoyed, started his machine and left. On 25/5/2016 (sic) a mob came and set my father’s house and my mother’s house ablaze and I left to my grandmother’s house. I was caught in my grandmother’s house on 26/12/2016 (sic) and taken to where Erikan was and locked me in. I was forced to swear in Erikan’s body and even given water to drink, forcefully. I was rescure (sic) from the room by the Police…” (Page 199 of the Records).
On page 201 of the Records, DW1 further said, under cross examination:
“I told the Police in my statement at State C.I.D, Uyo that one Uduak and his friend separated me and the deceased when we faught. By Uduak, I mean Uduakobong Isaace (sic) Ukpong, who testified as PW4 in this case. What PW4 said before this Court is the true position of what happened at the scene of the fight between me and the deceased. The deceased did not slump… I went to my grandmother’s place on 25/5/2015. When I heard that the deceased had died, I ran to my grandmother’s place, when I saw the villagers coming after me. I did not run to the Police Station to report that villagers were after me…”In her statement to the Police – Exhibit B, the Accused person had also stated that she fought with the deceased on the said date 23/5/2015, arising from the refusal of the latter to give her, her phone; that she slapped his face, when the deceased held her hair; that Patience (her Aunty) held the deceased by the hand and she (DW1) did not the know if Patience used anything to hit the deceased, since it was at night. She added:
“I know to kill is against the law. I did not know what I did will result in death. I am pleading that I would be forgiven…” Page 27 of the Records.
(Of course, that addition must have been prompted by the Police Officer, who recorded her statement, which was not proper).
I have not seen anything in the above evidence, and the entire Records of Appeal, that suggests that Appellant conspired with anybody to murder the deceased, and I think, the idea and concept of conspiracy, in this case, was that of the overzealous PW2 (the IPO), who made a lot of assertions, and inconsistent evidence about the case, which she was only to investigate, and not to act as an eye witness of the commission of the alleged offence.
The prosecution witness (PW4) who saw it all had stated that the fight was between the Accused person and the deceased; that the Accused person had shouted at the top of her voice, when the deceased held on to her hair. He (PW4) was the person who separated the fight, which he said lasted about 5 minutes. He said that the said Aunty of the Accused Person beat the deceased with the hand.
But it appears obvious, that the shout by the Accused person attracted others, like Patience. The entire circumstances that led to the fight cannot therefore infer any conspiracy, which required agreement and meeting to decide to attack or fight the deceased, and to kill him, in my opinion. The Appellant just went to collect her phone, given to the deceased to charge, and the deceased refused to return the phone asking her to come back on Monday. This was Saturday. There and then the fight broke out! Where was the time to meet to conspire to fight and kill; and to conspire with who? The charge (Count One) itself was such a blunder, in my view, as it did not state who the Accused person conspired with, dead or a live, or at large to kill the deceased!
It is sad that the learned trial Judge failed to see the hopelessness of the charge (Count 1) which just alleged that Appellant “conspired to kill one ERIKAN ISRAEL OKON (M)!” It is not possible for one to conspire to commit offence, as conspiracy suggests and requires the consensus or agreement of two or more persons to do something. One cannot conspire alone! See the case of Akereyeli Vs The State (2015) LPELR – 25811 CA, and our recent case of the State Vs Iheanachor (2019) LPELR – 49301 CA, on Conspiracy, where we held:
“The law is trite, that in a charge of conspiracy to commit felony, the basic ingredients to be established is agreement by the conspirators, to pursue the unlawful act. In the case of Adeyemi Vs State (2012) ALL FWLR (Pt.606) 492 at 511, it was stated that, to prove conspiracy:
(1) There must be two or more persons in concert;
(2) They must form a common intention;
(3) The common intention must be towards prosecuting an unlawful purpose;
(4) An offence must be committed in the process;
(5) The offence must be of such a nature that its commission was a probable consequence of the conspiracy”
Of course, often direct proof of working in concert to achieve an ignoble purpose is difficult to establish, and so the Court may have resort to inferences. See the case of Dr. Segun Oduneye Vs The State (2001) FLWR (Pt.38) 1203 at 1205, where the Supreme Court held:
“Since the gist of the offence of conspiracy is embedded in agreement or plot between the parties, it is rarely capable of direct proof; it is invariably an offence that is inferentially deduced from the acts of the parties thereto, which are focused towards the realization of their common intention or mutual criminal purpose. It is predicated on circumstantial evidence, which is evidence, not of the fact in issue, but of other facts which facts in issue can be inferred. Evidence in this connection must be of such quality that irresistibly compels the Court to make an inference as the guilt of the accused…”
See also Bernard Efe Ajomayan Vs The State: CA/C/455C/2018, delivered on 7/5/2020 (Pages 45 – 47).
I think the learned trial Court was, therefore, in grave error, when it said:
“I hold that all the ingredients of conspiracy which can only be inferred from the surrounding circumstances of this case is proven by the prosecution.
The big question is can the Accused person be convicted of conspiring with her Aunty Patience, who is at large in beating the deceased? Where there is evidence on record, as in this case, that the Accused conspired with the runaway Patience to beat up the deceased, the Accused can be convicted…” (Page 215 – 216 of the Records).
I have not seen any such evidence in the Records, especially as Appellant was not charged for conspiring with the alleged Aunty Patience and there was no credible evidence that the said Aunty Patience, was on the run. That evidence, unfortunately, came from the learned trial Judge, which is not permitted. See Uzoma Emeto Vs State (2018) LPELR – 44990 CA; Amadi Vs A.G. Imo State (2017) LPELR – 42013 (SC); Suberu Vs State (2010) LPELR – 3120 SC; which bar the trial Court from supplying evidence to reach a conclusion in a case.
Did the prosecution prove the offence of murder against the Appellant, as the learned trial Court held, in the face of the contradictions in the evidence of the prosecution and with regards to the actual cause of death of the deceased?
The law is trite, that one of the ingredients of offence of murder is that the prosecution must prove that the Accused person’s act or omission, resulted in the death of the deceased and that the Accused person intended the consequences of his said act or omission, or should have known that death or grievous bodily harm would be the probable consequence of his said act or omission. See the case of Akinsuwa Vs The State (2019) LPELR – 47621 SC, where in stating the ingredients of offence of murder, and how to prove it, my Lord, Sanusi JSC re-stated:
“On the offence/charge of murder, it is settled law, that in order to obtain conviction of any criminal offence, the prosecution could use any of the under mentioned methods…
(a) Through evidence of eye witness or witnesses
(b) Through voluntary confessional statement of the accused, or accused persons, and (e) Through circumstantial evidence. Agboola Vs The State (2013) LPELR – 20652 (SC).
Any of the above mentioned methods could be adopted by the prosecution to establish the offence of murder by proving the under-listed ingredients of offence of murder, namely:
(1) The death of a human being;
(2) That the death was caused by the act or commission of the accused person/and
(3) That the act of the accused was done intentionally or with knowledge that death or grievous bodily harm was the probable consequence. See Okeke Vs The State (1999) 2 NWLR (Pt.590) 246 at 273.”
See also State Vs Sunday (2019) LPELR – SC709/2013 and Tobi Vs The State (2019) LPELR – 46537 (SC), where it was held:
“… there was no intervening factor besides the stab wound inflicted on the deceased by the appellant. To my mind, therefore, the death of the deceased was as a result of and attributed to the act or acts of the appellant alone. There is, in my opinion, a direct link between the injures sustained by the deceased as a result of the knife stabs inflicted on the body of the deceased and his ultimate death. It is common knowledge and is indeed trite law, that infliction of serious and severe wound could have anticipatory natural result of death and the person who inflicted such serious or server wounds be guilty of murder.”
There must, therefore, be a causal link, between the Accused person and the death of the deceased, without any intervening cause. Of course, where the death of the deceased resulted, immediately, from the act(s) or omission of the Accused person, for instance, the deceased died at the spot of the fight, upon being slapped by the Accused person, the inference would be strong, that the slap or act of the Accused person caused the death of the deceased. See the case of State Vs Sunday (supra); Ozo Vs The State (1971) ANLR 112; Ben Vs The State (2006) 16 NWLR (Pt.1006) 582; Nwachukwu Vs The State (2002) 12 NWLR (Pt.782) 543. (In which case medical report may not even be necessary to prove culpability).
In the case of Ochiba Vs State (2011) LPELR – 8245 (SC), it was held:
“In every case where it is alleged that death has resulted from the act of a person, a link between the death and the act must be established, proved beyond reasonable doubt. In the cause of events, the cause of death must just be proved. Where the cause of death is ascertained, the nexus between the cause of death and the act or omission of the accused alleged to have caused it, must be established. There are factual questions to be answered by the consideration of evidence. In our adversarial system of criminal justice, the prosecution must prove its case beyond reasonable doubt, with vital and relevant evidence it can produce.” Per Adekeye JSC.”
Applying the above clear position of the Apex Court to this case at hand, the question as to the actual cause of the death of the deceased appear to be left to conjectures, by the trial Court when the trial Court held as follows:
“Yes, it could be said that it was not the slapped (sic) that caused the dead of the deceased, nor the beating of the deceased by the Accused persons Aunty, Patience, because an ordinary slap cannot cause the death of a person nor the beating by hand. But human beings are not biologically the same; a slapped (sic) and beating may not cause the death of Mr. A but can cause the death of Mr. B… PW4 said in Court: I separated them when the deceased was about to slump, I held him…
… It therefore means that the beating and the slapping was so severe as to cause the deceased to slumped (sic) only to be held by PW4. Such slapped (sic) and beating could cause a person to slump, but may not cause another, because of the physiological differences in human beings. It therefore means that if the PW4 did not arrest the deceased from slumping to the ground, the deceased could have died at the scene of the fight. Exhibit A1 the medical report from the autopsy said the cause of death was due to inter-cerebral bleeding with shock. The slap the Accused person gave the deceased on his face and the beating by her Aunty may have resulted in the her bleeding shock which led to the deceased being slumped (sic) but for the quick intervention of PW4.” (Underlining mine). See pages 217 and 218 of the Records.
The trial Court had earlier said, on pages 215 of the Records:
“It can be safely concluded that the Accused person and her Aunty, Patience, who held the hand of the deceased for the Accused to beat the deceased conspired to beat the deceased, not minding the rational (sic) consequence of such act. The Accused person could not be certain whether Patience used anything in hitting the deceased because it was at night. It is probable that something was used in hitting the deceased as the Accused person is economically (sic) with the truth…”
Some of the above findings by the learned trial Judge were based on dangerous speculations from the Court, upon some inferences from the evidence of the PW2 (I.P.O), who had contradicted herself, severally, on material points; making assertions that could not be supported by the evidence from the eye witness (PW4) or anywhere.
Whereas, PW4 said the fight was between only Appellant and the Deceased, and that he separated the fight; that Patience beat the deceased by hand; PW2 (IPO) said, from her investigation “Accused person used stick to hit the deceased” but, “the stick used by the Accused person to hit the deceased was taken away by the mother of the Accused person.”; she added “The deceased died in his compound, immediately, after the fight; the deceased fell down from his motorcycle when he started it to leave the scene and move, and felled down by their compound quite close to the scene of the fight.” She later said: The deceased died as he was taken to Church.”
And while testifying in chief, PW2 had said “The Accused person was supported by her Cousin, one Patience and the Accused person’s mother. From my investigation, the Accused person hit the deceased head with a stick and the deceased managed to his residence… and fell down and his landlord… took him to the Apostolic Church… Where he died.”
But the PW4, who witnessed the fight, had said, under cross examination:
“I witness the fight between Accused person and the Accused person. It was only the Accused person and the deceased that fought. The fight lasted about five (5) minutes. I did not see any item with the Accused person during the fight. There was no injury during the fight… After separating the fight, the deceased started his motorcycle and left… I did not see any blood stain on the deceased. The deceased did not die at the scene of the fight.”
Obviously, the evidence of PW2 and PW4 conflicted on material points. How did PW2 (who was not at the scene) get her fact that Appellant hit the deceased on the head with a stick, and that the fight with the deceased, Appellant was supported by her cousin, Patience, and her mother!
And where did the trial Court get its information that it was Appellant’s Aunty, Patience, who hit the deceased with a stick? If Accused Aunty, Patience, hit the deceased with a stick, why was she not tried along with the Accused person, to determine, whether it was the act of the Accused slapping the deceased on the face, or that of the Aunty, hitting of the deceased with a stick, that caused his death, or both?
There was also the evidence that the deceased slumped in his house. (And PW2 said he fell down from his motorcycle when he started it to leave the scene and also fell down by their compound; PW2 added that the deceased slumped on the ordinary floor). But PW1 said he slumped at the door of his house.
Could that fall of the deceased from the motorcycle, or on the floor in his compound, have constituted an intervening cause of the death? That evidence, in my view, was crucial, in the light of what followed, as the deceased was taken to Church (not hospital) and he died in the Church. (Though PW2 speculated that he died in his compound, or on the way to the Church!)
It is difficult for me to imagine how a slap on the face of the deceased by a young woman of about 18 years, a nursing mother, who was held on the hair by the deceased, could be so strong to cause the death of the deceased, a 27 year old man! And the medical doctor was, not called to explain his opinion in the report that “there is a linear skull fracture of occipital bone with intra-cerebral bleed terminating in shock.”
Could that have been caused by the slap on the face of the deceased by Appellant or by the fall he had on the floor? What did the doctor mean by his suspicion, if any, when he wrote: “must have been suffering from kind sickness or another!” and “it could be that the deceased had an ailment.”
It is quite sad that the deceased died in the circumstances of this case. It is also sad that the error of the deceased, or his indiscretion in not giving the Accused person her phone at the time of closing his shop, but fixing Monday (from Saturday) as the date he would release the phone, given to him to charge, resulted in the fight. But I cannot see the causal link between the fight and slapping of the deceased on the face and the death of the deceased in the Church, after his fall (slump) on the floor in his compound, which was quite independent of the fight.
The Court is always warned to be very circumspect, when it comes to convicting an accused person for murder, where there exists some intervening causes that cast doubt as to the culpability or guilt of the Accused person in the death of the deceased. See Onyekwere Vs The State (2019) LPELR – 48235 CA; Ajakaiye Vs State (2015) 5 WRN 64; Enweremadu Vs State (2017) LPELR – 42488 CA; Onafowokan Vs State (1987) 7 SCNJ 1; Okoro Vs State (1988) 12 SCNJ 191.
In that case of Ajakaiye Vs State (2014) LPELR – 24098 (CA), it was held:
“.. there was no evidence, whatsoever, to justify the conviction of the Appellant for murder… The law is settled on how offence of murder is proved, that the prosecution must establish, beyond reasonable doubt, that the Accused person caused the death of the deceased by tracing causal link between the death of the deceased and the act/omission of the Accused person.” See Michael Vs The State (2008) 13 NWLR (Pt.1104) 361; Kada Vs The State (1991) 8 NWLR (Pt.208) 134.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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In the case of Ehiriodo Vs The State (2019) LPELR – 48234 CA, this Court held as follows:
“With due respect to the learned trial Judge, 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, founded on the sore relationship between the Appellant’s family and deceased (and his family) relating to land dispute, which resulted in oath taking before a juju shrine, and alleged threats to the life of the deceased, and PW1 by the Appellant, a week before the death of the deceased.
It is quite sad that the learned trial Court allowed itself to be teleguided by such sentiments, speculation and extraneous considerations, completely outside the sphere of the evidence needed to establish offence of murder, to find the Appellant guilty and sentence him (and the other, accused) to death by hanging! 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. See the case of Theophilus Ajakaiye Vs The State (2014) LPELR – 24098 CA; (2015)5 WRN 64, where it was held:
“A Court is never allowed to make a case for any of the parties before it different from what a party presents to the Court… Ayoade Vs Spring Bank Plc (2014)4 NWLR (Pt.1396)93 at128… The demand for a judge to be circumspect and act within the confines of the strict rules of law in the appraisal and application of the evidence and the law to reach his conclusion, becomes much more in a criminal trial whereof the liberty and/or life of the Accused person is at stake, and a little error or mistake can be fatal. 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… Such concern or awareness should always play on the mind of a judge, as he sits in judgment over his fellow mortal.” Garba Vs State (2011)14 NWLR (Pt.1266)98 at 124.
And by law, suspicion, no matter how strong, cannot lie a conviction. See EMESONYE VS THE STATE (2016) LPELR – 40550 CA; ONAFOWOKAN VS STATE (1987) 7SCNJ 1; OKORO VS STATE (1988) 12 SCNJ 191. This is because, every charge must be proved beyond reasonable doubt and where there is a lingering doubt, the same has to be resolved for the accused person.”
In the case Emeto Vs The State (2018) LPELR – 44990 CA, which founded on Suberu Vs State (2010) LPELR – 3129 (SC), it was held that:
“A Judge should not descend into the arena. A Court has no duty to bridge the yawning gap in the case of a party. This is more so since this is a criminal matter…” Fabiyi JSC. See also Egbebu Vs IGP & Ors (2016) LPELR – 40224 CA.
There was no credible evidence that the Appellant hit the deceased on the head with a stick, or that her Aunt beat him with a stick. PW4 said he did not see the Appellant with any stick or any item, when she fought with the deceased. A cloud of doubt surrounded the testimonies of the prosecution, which should have been resolved for the Appellant, in my view.
I see merit in this Appeal and so, resolve the Issues in favour of the Appellant and allow the Appeal. I set aside the decision of the learned trial Court in Charge No. HA/21C/2016, delivered on 4/7/2018, and rather enter a verdict of discharge and acquittal for the Appellant in the Charge.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Ita G. Mbaba, JCA.
I agree with the reasoning and conclusion in the judgment. I also allow the appeal. I abide with the consequential orders.
HAMMA AKAWU BARKA, J.C.A.: The judgment of my Learned brother Ita G. Mbaba, JCA, was made available to me in draft before now.
My lord has diligently given consideration to the issues submitted to my satisfaction.
I also see merit in the appeal and thereby allow it.
Appearances:
J.O. IDIEGE ESQ For Appellant(s)
JOSEPH UMOREN ESQ (D.P.P. AKS) with him F.J. ITIM ESQ (D.D.P.P.) For Respondent(s)
