UKPONG v. STATE (2020)

UKPONG v. STATE

(2020)LCN/15712(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, March 25, 2020

CA/C/02C/2019

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

HammaAkawuBarka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

ETIM ASUQUO UKPONG APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO:

RAISING THE DEFENSE OF ALIBI AND THE DUTY OF THE POLICE

THE DEFENSE OF ALIBI MUST BE RAISED AT THE EARLIEST OPPORTUNITY

See Esene vs. State (2017) LPELR-41912 (SC), Ukwunnenyi vs. The State (1989) 4NWLR (pt. 114) 131, Salami vs. The State (1988) 3 NWLR (pt. 85) 670. In the recent case of Sale vs. The State (2020) ALL FWLR (pt. 1705) 205 @ 252, the Apex Court on the issue spoke thus:
“To be entitled to the beneficent effect of the defense of alibi, an accused person must raise it at the earliest opportunity, which would preferably be in his extra judicial statement. This is to offer the police the opportunity either to confirm or confute its availability to the accused person. What is more the said defense must be unequivocal as to the particulars of his whereabouts and those present with him.” HAMMA AKAWU BARKA, J.C.A.

FAILURE TO INVESTIGATE A DEFENSE OF ALIBI APPROPRIATELY RAISED IS FATAL TO THE PROSECUTION’S CASE

The consequence for the prosecution failing to investigate a defense of alibi appropriately raised is fatal to the prosecution’s case, as the doubt arisingthere from must of necessity be resolved in favour of the accused person. See Dagayya vs. The State (2006) 7 NWLR (pt. 980) 637, Ndukwe vs. The State (2009) 7 NWLR (pt. 1139) 43, Hassan vs. The State (2001) 6 NWLR (pt. 709) 286, Nwabueze vs. The State (1988) 3 NWLR (pt. 86) 16, Ebre vs. State (2001) 12 NWLR (pt. 728) 617 @ 636.
Further still, the law posits that:
“The defense of alibi would however crumble where the accused person is fixed at the scene of the crime by either the victim or other eye witnesses. In such a circumstance, the investigation of a claim of alibi would serve no useful purpose.”
See Yalia vs. The State (2019) ALL FWLR (pt. 1012) 653 @ 683, Victor vs. The State (2013) 12 NWLR (pt. 1369) 465, State vs. Ekanem (2016) LPELR-41304 (SC), Edwin vs. The State (2019) 291 LRCN 109 @ 129. HAMMA AKAWU BARKA, J.C.A.

WITNESSES MAY NOT ALWAYS SPEAK OF THE SAME FACTS OR EVENTS WITH ACCURACY
In qualifying this legal stance, Onnoghen CJN, opined that:
“It would be miraculous to find two persons who witnessed an incident giving identical accounts of it when they are called upon to do soat a future date. If that were to happen, such accounts would be treated with suspicion as it would be likely that the witnesses compared notes. In effect variations in testimony seem to be badges of truth. Witnesses may not always speak of the same facts or events with equal and regimented accuracy. For contradictions in the evidence of prosecution witnesses to affect a conviction, particularly in a capital case, they must raise doubts as to the guilt of the accused person” see also Alao vs. The State (2011) LPELR – 1473 (SC), Akpa vs. The State (2008) LPELR – 368 (SC).
HAMMA AKAWU BARKA, J.C.A.

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): Mr. Onwinokor Lawrence Esin, a young undergraduate of the Philipine Maritime University was home for the New Year festivities full of life and expectations for the future, but unfortunately and all of a sudden he succumbed to the cold hands of death mysteriously. His parents Chief and Mrs. Lawrence Esin, associates and indeed all kindred, and the entire community were thrown into mourning. Upon learning of the sad demise of the young boy, Michael Solomon Anwana, now deceased in company of his wife, being of the same family with the deceased undergraduate, went to commiserate and sympathize with the bereaved nuclear family. All is said not to have gone down well, when Chief Lawrence Esin, accused the deceased (Michael Solomon Anwana) of shedding crocodile tears as he was infact responsible for the death of his son by witchcraft. The deceased was said to have pleaded with him to assemble elders and to discuss the issue amicably between them in his position as the head of family and village head to no avail. Thereafter, Chief Lawrence Esin, who refused to heed the plea bythe deceased that they convene a meeting to discuss the issue, since he was the village head and head of the family, resorted to, and instead sent some young men for divination from a soothsayer in order to determine and identify the cause, and who caused the death of his son. Four days thereafter, the youths sent on the errand to identify who might have killed the son of the said Chief Lawrence Esin, and amidst the congregation of youths and people of the village gathered for the purpose, reported confirming the allegation made by the father of the young deceased undergraduate, that the deceased (Michael Solomon Anwana) and one other person identified as the wife of the village head were responsible in the killing the young man through witchcraft. Incensed by the report received from the emissaries of Chief Lawrence Esin, the irate crowd were ordered and proceeded to set the house of the deceased on fire in the course of which the deceased was tortured, cut to pieces and his body thrown in to the burning house and burnt to ashes.

The appellant, along with others were apprehended in the course of investigation, and arraigned on a three count charge of conspiracy, arson and murder to which they all pleaded not guilty. In an attempt at proving the allegations against the accused persons, the prosecution called five witnesses in proof of their case and tendered some exhibits, while appellant adduced evidence in his defense at the end of which, he was convicted along with his other co-accused and sentenced to death by hanging.

Peeved by the decision of the trial Court, and with his life at stake, appellant filed a notice of appeal with the leave of Court on the 26th day of September, 2018, predicated upon four grounds of appeal. The appeal having been properly entered to this Court on the 2nd of October, 2018, parties proceeded to file in their briefs of argument. The appellant’s brief of argument settled by G. A. Umoh, of learned counsel for the appellant dated the 21st of February, 2019 was filed on the same date. The respondent’s brief settled by Uwemedimo Nwoko, the learned Attorney-General and Commissioner for Justice, Akwa Ibom State, dated the 30th of September, 2019 and filed on the 2nd of October, 2019 was deemed filed on the same 2nd of October, 2019; and on the 9th day of March, 2020 when the appeal eventually came up for hearing, Mr G. A Umoh identified and adopted the processes filed by him in urging the Court to allow the appeal, set aside the conviction and sentence imposed on the appellant and to enter an order for the discharge and acquittal of the appellant.

The Learned Honorable Attorney – General, Akwa Ibom State, appearing for the respondent with other counsel in tow, identified the process filed and urged the Court to dismiss the appeal in its entirety, and affirm the conviction and sentence imposed by the trial Court.

In the Appellants brief filed, particularly at page 3 thereof, three issues were identified for the resolution of the appeal thus:
1. Whether the learned trial judge was relying solely on the purported extrajudicial statement of the appellant in convicting him of murder and arson.
2. Whether the learned trial judge erred in law in finding the appellant guilty of murder and arson even when none of the ingredients of these offences were proven against the appellant.
3. Whether the learned trial judge erred in convicting the appellant despite the contradictions in the evidence of theprosecution witnesses as to the circumstances of death of the deceased.

The respondent at page 4 of the brief filed by him also identified four issues for the resolution of the appeal as follows:
i. Whether or not the learned trial judge relied solely on the appellant extra-judicial statement in convicting the appellant for the offences of murder and arson.
ii. Whether or not the offences of conspiracy, murder and arson were proved against the appellant to warrant his conviction and sentence.
iii. Whether or not the perceived contradiction complained of by the appellant was fatal to the prosecution’s case as it relates to the murder of the deceased.

A sober consideration of the issues formulated by the parties, shows that the area of concern to both parties are the same, and but for the twist in language, the two combatants are saying the same thing. I however elect to be guided by the issues formulated by the learned counsel for the respondent being concise and to the point.

Issue one.
Whether or not the learned trial judge relied solely on the appellant’s extra-judicial statement in convicting the appellant for the offences of murder and arson.
The appellant’s submissions on the issue can be seen from pages 3 – 10 of the appellant’s brief. Therein learned counsel submitted that the trial Court erred when it erroneously relied on the purported confessional statement of the accused person, when the stated statement had not satisfied all the requirements of the test for a confessional statement. He alluded to that part of evidence rendered by the accused person, now appellant under cross examination, where he denied the content of the statement, insisting that he did not witness anybody killed. Further relying on the authorities of Etim Edem Asuquo vs. The State (2016) LPELR – 41354 (CA), Ismail vs. The State (2008) 15 NWLR (PT.1111) 598, Nwaebonyi vs. The State (1994) 5 NWLR (pt. 343) 13 amongst many others, learned counsel argued that to convict solely on the confessional statement of the accused person requires that there be some pieces of evidence outside the confession, making it probable that the alleged confession was true. He posits that there was no such corroborative evidence with respect to the instant case, and further submitted that the trial Court erred in convicting the appellant in spite of the plea of alibi raised timeously in his defense. He then argued that the trial Court improperly evaluated the evidence of alibi raised and the Court shut its eyes to the appellant’s story that he was elsewhere on the date of the incident. Premised on the above, counsel prayed this Court to resolve the issue in favor of the appellant.

The response of the learned counsel for the respondent on the issue is contained at pages 4 – 8 of the brief. The learned counsel argued that the appellant’s contention that appellant was convicted relying solely on the extra judicial statement of the accused person alone was unfounded as the Court sought for corroborative evidence outside the statement in ascertaining the truth of the confession. On the allegation by the appellant that his defense of alibi was not properly investigated, it was submitted that the accused having been pinned at the scene of the crime, there was no need for the prosecution to investigate the same. He then contended that the trial Court had the primary duty of evaluating the evidence placed before it, submitting that the defense of alibi raised by the appellant being deficient in particularization, the trial Court was right to have rejected the same.

Having carefully studied the submissions of the learned counsel from both sides on the issue in contention, it seems clear to me that the appellant’s complaint is hinged on the fact that the trial Court relied solely on the alleged confessional statement of the appellant without recourse to any corroborative evidence and further that the defense of alibi raised by the appellant was not accorded due consideration. Appellant equally complained that his defense of Alibi was neither investigated nor acted upon by the trial Court.

Starting with the defense of alibi set up by the appellant, the position of the law is clearly to the effect that the defense which imputes that appellant was elsewhere when the alleged offense was committed, implies the physical impossibility of the accused committing the alleged offence in view of the fact that he was in a location different from the scene of crime at the relevant time. See Attah vs. The State (2010) 10 NWLR (pt. 1201) 190, Uwani vs. The State (1988) 1 NWLR (pt. 70)274, Eke vs. The State (2011) LPELR-1133 (SC). The law goes further to provide that where an accused person raises the defense of alibi timeously and at the earliest opportunity, the police investigating officer is duty bound to investigate and to make available to the Court the result of its investigation. See Esene vs. State (2017) LPELR-41912 (SC), Ukwunnenyi vs. The State (1989) 4NWLR (pt. 114) 131, Salami vs. The State (1988) 3 NWLR (pt. 85) 670. In the recent case of Sale vs. The State (2020) ALL FWLR (pt. 1705) 205 @ 252, the Apex Court on the issue spoke thus:
“To be entitled to the beneficent effect of the defense of alibi, an accused person must raise it at the earliest opportunity, which would preferably be in his extra judicial statement. This is to offer the police the opportunity either to confirm or confute its availability to the accused person. What is more the said defense must be unequivocal as to the particulars of his whereabouts and those present with him.”
The consequence for the prosecution failing to investigate a defense of alibi appropriately raised is fatal to the prosecution’s case, as the doubt arising there from must of necessity be resolved in favour of the accused person. See Dagayya vs. The State (2006) 7 NWLR (pt. 980) 637, Ndukwe vs. The State (2009) 7 NWLR (pt. 1139) 43, Hassan vs. The State (2001) 6 NWLR (pt. 709) 286, Nwabueze vs. The State (1988) 3 NWLR (pt. 86) 16, Ebre vs. State (2001) 12 NWLR (pt. 728) 617 @ 636.
Further still, the law posits that:
“The defense of alibi would however crumble where the accused person is fixed at the scene of the crime by either the victim or other eye witnesses. In such a circumstance, the investigation of a claim of alibi would serve no useful purpose.”
See Yalia vs. The State (2019) ALL FWLR (pt. 1012) 653 @ 683, Victor vs. The State (2013) 12 NWLR (pt. 1369) 465, State vs. Ekanem (2016) LPELR-41304 (SC), Edwin vs. The State (2019) 291 LRCN 109 @ 129.

In the instant case, there was evidence which the trial Court accepted, that appellant was indeed at the scene of the crime, and seen directing affairs as the leader of the Akaba Boys. PW 2 is heard as saying that:
“The 1st Accused person ordered the group of Akaba boys he invited to go and burn down my father’s house. The group was led by Etim Asukwo Ukpong the youth president of udungukpong village. They went to my father’s house and broke the doors, the alluminium and damaged the house and poured petrol around the house and finally set it ablaze.
After doing that, they came to my father where he was held and started beating him. Asukwo Okon John took a stick and hit my father, Emmanuel Asukwo Ukpong used a machete and severed my father’s arm…… They poured fuel all over him, tied him up and roasted him to ashes while alive. All the people in the dock were present.”

Curiously, the witness was not contradicted nor even cross examined on this material point of the appellant being the leader of the Akaba boys, who led the attack on the premises and person of the deceased. The Honourable Attorney-General was therefore right relying on the case of Adeyemi &Ors vs. The State (1991) 2 LRCN 490 @ 504, to the effect that where a witness who gave evidence of visual identification is not cross examined nor shaken under cross examination, nothing stops a trial Court from accepting his evidence and to further submit that the uncontradicted piece of evidence is deemed admitted. See further on this the cases of Obiniche vs. Akusobi (2010) 12 NWLR (pt. 1205) 383, Esseyin vs. State (2018) 14 NWLR (pt. 1640) 491, and Sale vs. The State (supra) @ 248. In the event, owing to the positive identification of the accused person by the PW 2, which evidence was not challenged by way of cross-examination, the lower Court was right in not according the alibi set up by appellant, more particularly from the appraisal of the evidence proffered, any eminence or value in the accused person’s favor. See Victor vs. The State (2014) 227 LRCN 221.

The second leg of the appellant’s complaint is that the trial Court based the conviction of the appellant upon his alleged confessional statement alone without corroborative evidence. I do not think so. The evidence of the PW2 is pungent and incriminating not having been impugned. It is trite that a confession contained in a statement made to the police by a suspect is not to be treated differently from any other confession; Ejinima vs. The State (1991) 6 NWLR (pt. 200) 627, Sale vs. The State (supra) @ 247, and where there are ample evidence of positive identification as in the instant case, of an eye witness to the commission of the crime, and such evidence having pinned the appellant at the scene of crime, it cannot be said therefore that appellant was convicted solely upon the retracted confessional statement of the appellant. I am however not unaware of the position of the law, to the effect that it is desirable to have outside the accused persons confession, some corroborative evidence no matter how slight of circumstances which make it probable that the confession is true and correct. Nwachukwu vs. The State (2007) LPELR-8075 (SC), Akpan vs. The State (1992) 6NWLR (pt. 248) 439, Ikpasa vs. AG Bendel State (1981) 9SC 7. In the case at hand, I find the evidence of the PW 2 as having amply corroborated the alleged confessional statement of the appellant, and the trial Court was on a sound footing when after evaluating the totality of the evidence before him found the appellant culpable. Indeed a trial Court will be failing in its duty where it refuses or fails to convict on the evidence of the prosecution which is unchallenged and uncontroverted. Ada vs. State (2008) 13 NWLR (pt. 1103) 149. Inany case, it is now settled that a Court of law properly so called, can convict based on the confessional statement of an accused person made voluntarily and which is direct positive unequivocal, and which the Court believes to be true. Odeh vs. FRN (2008) 13 NWLR (pt. 1103) 1. The totality of the appellant’s argument with respect to the issue from the foregoing lacks merit, and the issue thereby resolved against the appellant.

Issue two.
Whether or not the offences of conspiracy, murder and arson were proved against the appellant to warrant his conviction and sentence.
It was submitted by learned counsel for the appellant that the trial Court erred in finding the appellant guilty of murder and arson even though none of the ingredients of the offence was established. Learned counsel cited the case of Udo vs. The State (2018) LPELR-43707 (SC) on how the offence of murder can be established, and argued that there was no evidence of the death of the deceased, nor was there any evidence of the particular act committed by the appellant that established a case of murder against him. He referred to the evidence of the PW 2, who listed thepersons that killed his father, stating that the name of the appellant was not mentioned therein. He continued to argue that contradictions and discrepancies by PW 1, an eye witness as to the manner of death of the deceased is suspicious and ought to have been disregarded. Learned counsel based on the foregoing urged the Court to absolve the appellant from the charge of murder, and to hold that the prosecution failed to establish the alleged crime against him. On the allegation of arson preferred against the appellant, it was submitted based on the authority of Okhiria vs. The State (2016) LPELR – 40144 (SC) that there was no evidence that a building belonging to Michael Solomon Anwana was razed by fire. He maintained that the appellant was not at the scene of the crime, and therefore not amongst those that allegedly razed down the deceased person’s house, and therefore the appellant cannot be convicted based on speculation. Counsel urged the Court to resolve the issue in favor of the appellant.

Contrariwise, it was argued that prosecution proved the alleged offences against the appellant. While conceding that the prosecution had the legal burden ofproving the case against the accused beyond reasonable doubt, and by law the prosecution can discharge that burden in either or a combination of ways established. Learned counsel submits that the fact that the deceased is dead was established through the evidence of the PW1 – PW5 beyond doubt. On whether the appellant caused the death of the deceased and or whether the act was intentional or with the knowledge that death was its probable consequence, it was argued relying on the evidence of the PW 2, that appellant and others tied the deceased, poured petrol on him and set him on fire while still alive. Still relying on the evidence of the PW 2, learned counsel insists that there being evidence that the deceased was killed on the spot, the submission of medical evidence becomes needless. It was further argued on the authority of Nwankwoala vs. The State (2006) LPELR – 2112 (SC), that where more than one person are jointly accused of a crime, what each other did in furtherance of the commission of the crime becomes immaterial. On arson, learned counsel also leaned on the authority of Okhiria vs. The State (supra), and maintained that there was sufficient evidence oral and documentary showing that the house of the deceased person was razed to the ground. He urged the Court to still reject the alibi set up by the appellant and to finally resolve the issue against the appellant.

Where an accused person is charged with the offences of murder and arson as in the instant case, which are criminal in nature, the burden of proving such allegations rests squarely upon the prosecution, and in proving the guilt of the accused, the prosecution will normally employ one or more of the following:
i. Evidence of eye witnesses.
ii. Confessional statement of the accused person
iii. Circumstantial evidence.
Whichever mode the prosecution chooses to employ, the law provides that the guilt of the accused must be proved beyond doubt, for where any doubt arises in the prosecution’s case, or is manifest from the evidence rendered; such doubt must be exercised in favor of the accused person.

I have earlier stated that the grouse of the appellant herein is said to be the reliance of the trial Court on the alleged confessional statement of the appellant in convicting him. It is a trite principle of law, that where the confession of an accused is direct, positive and unequivocal admitting of the fact that he committed the offence, a trial court without much ado, can convict on that statement alone. See Bature vs The State (1994) 1 SCNJ 19 @ 29, Ikpo vs. The State (1995) 12 SCNJ 64 @ 75, Magaji vs. Nigerian Army (2008) ALL FWLR (pt. 420) 603, Dage vs. The State (2019) ALL FWLR (pt. 1013) 848 @ 867, State vs. Ibrahim (2019) ALL FWLR (pt. 1007) 704 @ 732. This is because confession has been described as the best form of evidence in criminal trials. Nwachukwu vs. The State (2007) ALL FWLR (pt. 39) 1380, Queen vs. Obasa (1961) 1ALL NLR 651, Dage vs. The State (supra) @ 866.
That notwithstanding, the law has restated some factors to be considered where an accused person retracts his confessional statement. The law demands for corroborative evidence outside the statement showing that the statement made was indeed true.

In the case at hand, the appellant was accused of murder and arson. The offence of murder is said to be complete where the following ingredients are shown to exist.
i. The death of the deceased.

That the death resulted from the act of the accused person.
iii. That the accused knew that his act will result in the death or did not care whether the death of the deceased will result from the act. See Durwode vs. The State (2000) 15 NWLR (pt. 691) 467 @ 487 – 488, Ogbu vs. The State (2001) 7 WRN 50, State vs. Ibrahim (2019) ALL FWLR (pt. 1007) 704 @ 728, Kabaka vs. The State (2011) 202 LRCN 171, Edoho vs. The State (2010) 42 NSCQR 451 @ 456.

With regard to the first ingredient of the charge of murder, I fail to understand the position of the appellant to the effect that the death of the deceased was not established on the mere assertion that no medical certificate to that effect was tendered in Court. I do agree with the learned Attorney – General, that where the cumulative evidence of the PW1 – PW 5 is examined, one is left in no doubt that the deceased person (Michael Solomon) is dead. PW 1, his dearest wife convincingly told the Court that the deceased, who is her husband is dead, and went further to describe the circumstances of his death. The evidence of the PW 2, which is to the effect that the appellant led the Akaba Boys on the orders of the 1st accused person went to the deceased house, broke the doors of the house and finally set the house ablaze, and the further evidence of this witness that the deceased was roasted alive was not challenged nor impugned. I am in agreement with the learned counsel for the respondent that these pieces of evidence by the witnesses settled the fact as to the death of the deceased. The contention of the appellant that the prosecution failed to adduce evidence as to the death of the deceased fades upon the established position of the law, to the effect that in view of the eye witness account as to the death of the deceased as to how the deceased met his death, no further evidence regarding the cause of death is necessary. See Akpan vs. The State (1972) LPELR – 378 (SC), Dajo vs. The State (2018) LPELR – 45299 (SC), Ukpong vs. The State (2019) ALL FWLR (pt. 1005) 414 @ 448:
“Where the cause of death is obvious, medical evidence ceases to be of any practical or legal necessity in homicide cases. Such a situation arises where the death was instantaneous or nearly so.”
The argument by the appellant to the effect that nobody died from the evidence adduced is idle and unsupportable in view of the position of the law.

There is the other submission, by the learned respondent’s counsel, and rightly in my view that looking at the evidence adduced before the lower Court, and where a situation arises as in the instant case, where more than one person is accused of a joint commission of a crime, then where the act has been done, it is enough to prove that they all participated in the commission of the crime, and what each of them individually did in furtherance of the commission of the crime becomes immaterial. See Nwankwoala vs. The State (2006) LPELR – 2112 (SC). The further position of the law since established is that where the prosecution has established a community effort on the part of the appellant with regards to the death of the deceased, the appellant is deemed in law to have killed the deceased. The situation of the appellant is made worse by the evidence proffered by the pW2, which the trial Court believed to the effect that appellant led the Akaba boys to set the house and the deceased ablaze.

Lastly on the issue, can the complaint of the appellant with regard to the finding of the lower Court that he was guilty of the offence of arson leveled against him? Indeed the case of Okhiria vs. The State (supra) established the template on what amounts to arson, and how it can be established. Here too as ably argued, evidence abound as to how the deceased persons house was set ablaze. There is evidence that the Akaba Boys led by the appellant was ordered to burn the house of the deceased. Documentary evidence corroborated the fact that deceased house was indeed burnt to ashes. Appellant in the circumstance couldn’t have escaped liability. This issue is similarly resolved against the appellant.

Issue three.
Whether or not the perceived contradictions complained of by the appellant was fatal to the prosecution’s case as it relates to the murder of the deceased.
It was submitted on the issue that the trial judge erred in convicting the appellant despite the contradictions in the evidence of the prosecution witnesses. He referred to the evidence of the Pw2 with regards to the issue of murder and that of the Pw1, and other pieces of evidence pinpointed by him. Counsel submitted that the evidence of all the prosecution witnesses are materially contradictory and raised great doubts to the credibility of the evidence adduced. He maintained that the trial Court failed to apply the correct approach to the issue of contradictions raised by the appellants, and relying on Onubogu vs. The State (1974) SC, and Ekezie vs State CA/E/6c/1999, also reported as (2016) LPELR – 40961 (CA), submitted that the contradictions in the evidence of the PW 1 as to the manner of the death of the deceased is fundamental and ought to have created doubts in the mind of the Court. He therefore urged the Court to reject the evidence of the PW1 for inconsistency and to resolve the issue in favor of the appellant.

The respondent on the other hand submits that for contradiction to be substantial as to affect the prosecution’s case, it must relate to the element of the offence charged and not on peripheral matters. Making reference to case law on the issue, it was argued that the death of the deceased as caused by the appellant and his co accused has been established beyond argument and he urged the Court to resolve same against the appellant.

The learned counsel for the appellant is absolutely correct in submitting in line with the decision of this Court in Ekezie vs. The State (supra), that where the evidence of a prosecution witness is materially or staggeringly in conflict creating doubts in the mind of the Court, such doubt must be resolved in favour of the accused appellant. This Court in the case of Olayiwola vs. The State (2018) ALL FWLR (pt. 918)1 @ 26, restated the position of the law, in that where the prosecution’s case is riddled with material contradictions and inconsistencies, the Court will be slow to rely on same in convicting the accused person. In other words, the contradiction alleged must go to the substance of the case. In the words of the Supreme Court, the contradictions must be so material to the extent that they cast serious doubts on the case presented as a whole, or as to the reliability of the witnesses. See Ukpong vs. The State (2019) ALL FWLR (pt. 1005) 414 @ 446. In qualifying this legal stance, Onnoghen CJN, opined that:
“It would be miraculous to find two persons who witnessed an incident giving identical accounts of it when they are called upon to do soat a future date. If that were to happen, such accounts would be treated with suspicion as it would be likely that the witnesses compared notes. In effect variations in testimony seem to be badges of truth. Witnesses may not always speak of the same facts or events with equal and regimented accuracy. For contradictions in the evidence of prosecution witnesses to affect a conviction, particularly in a capital case, they must raise doubts as to the guilt of the accused person” see also Alao vs. The State (2011) LPELR – 1473 (SC), Akpa vs. The State (2008) LPELR – 368 (SC).

I have in the context of the law examined the area of complaint by the appellant. It seems to me that the evidence given by the PW1 and PW2 with regards to the murder of the deceased, most particularly as to hit the deceased with a stick or machete does not derogate from the fact that the deceased was indeed not material in the examination of how the deceased was killed. Owing to the evidence placed before the Court, the fact remained that the deceased was killed by the appellant and his co accused as ably argued. The argument presented by the learned counsel for the appellant in view of the position of the law crumbles, and thus lacking in merit. Consequently the issue is resolved against the appellant.

All the three issues canvassed having been resolved against the appellant, the inevitable conclusion is that appellant’s case is lacking in merit, and deserved to be dismissed, which I now do. The appeal being unmeritorious is hereby dismissed by me. The judgment of Gabriel E. Ette of the High Court of Justice, Akwa Ibom, Okobo, delivered on the 5th of August, 2016, whereof the appellant was convicted and sentenced to death by hanging is hereby affirmed.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Hamma Akawu Barka, JCA. I agree with the reasoning and conclusion.
I also dismiss the appeal.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the opportunity of reading in draft the judgment just delivered by my learned brother, Hamma A. Barka, JCA. I agree entirely with the reasoning and conclusions that the appeal is devoid of any merit. I too dismiss the unmeritorious appeal and affirm the judgment of the lower Court which convicted and sentenced the appellant to death by hanging.
Appeal dismissed.

Appearances:

C. A. Umoh Esq. For Appellant(s)

Uwemedimo Nwoko HAG with him Bassey Ekanem, DCL and Godwin Udom PSC For Respondent(s)