SIMEON NEBEIFE OBIDIKE v. THE STATE
In The Supreme Court of Nigeria
On Friday, the 28th day of March, 2014
SC.395/2002(2)
RATIO
ATTITUDE OF THE APPELLATE COURT TO FINDINGS OF FACT MADE BY A TRIAL COURT
It is now settled that an appellate court should not ordinarily substitute its own views of fact for those of the trial court. An appellate court will not interfere with findings of fact by a trial court except where wrongly applied to the circumstance of the case or the conclusion reached was perverse. Certainly, ascription of probative value to the evidence of witnesses is pre-eminently the business of the trial court which saw and heard the witnesses; more especially, where the issue turns on the credibility of witnesses. See: Ebba v. Ogodo (1984) 1 SCNLR 372; Balogun v. Agboola (1974) 1 All NLR (pt.2) 66; Nneji v. Chukwu (1996) 10 NWLR (Pt.378) 265; Ogbechie v. Onochie (1998) 1 NWLR (pt. 470) 370; Bamigboye v. University of Ilorin Anr. (1999) 6 SC (Pt.11) 72; Olanrewaju v. Governor of Oyo State & Ors. (1992) 11-12 SCNJ 92 and Motunwase v. Sorungbe (1988) 5 NWLR (Pt. 92) 90. PER JOHN AFOLABI FABIYI, J.S.C.
WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE CONCURRENT FINDINGS OF FACT MADE BY THE TWO LOWER COURTS ON THE CREDIBILITY OF WITNESSES
It should be reiterated once more that it is not the function of an appeal court to substitute its own view for those of the trial court where the issue turns on the credibility of witnesses. See: Nwosu v. Board of Customs and Excise (1985) 5 NWLR (Pt.93) 225; Egonu v. Egonu (1978) 11-12 SC 111.It goes without saying at this point that there are concurrent findings of fact by the two lower courts on the credibility of the evidence of P.W.5 on the basis of which the conviction of the appellant was founded. It is now well settled that in such a situation, as herein, this court will not ordinarily disturb such concurrent findings unless same is shown to be perverse or there is an error in procedure or substantive law which has occasioned miscarriage of justice. I shall not interfere as same has not been demonstrated herein. See: Kale v. Coker (1982) 12 SC 252; Oduntan v. Atibu (2000) 7 SC (Pt.2) 106; Anaeze v. Anyaso (1993) 5 NWLR (291) 1, Echi & Ors. v. Nnamani & Ors. (2000) SC 62 at 70; Nwokoro v. Onuma (1999) 9 SC 59; Chinwendu v. Mbamali & Anr. (1950) 3-4 SC 31 at 71; Lokoyi v. Olojo (1988) S SC 61 and Coker v. Oguntola & Ors. (1985) 6 SC 132. PER JOHN AFOLABI FABIYI, J.S.C.
WHETHER ADDRESS BY COUNSEL MUST BE TAILORED IN LINE WITH THE REAL EVIDENCE ON RECORD
Let me say it that address by counsel should be tailored to be in line with the real evidence on record and not otherwise. This is more so; as addresses are designed to assist the court. No amount of brilliance in a fine speech can make up for the lack of evidence to prove and establish or else disprove and demolish points in issue. There is no need to make submission against the flow of evidence in a bid to procure underserved attention. See: Niger Construction Ltd. v. Okugbeni (1987) 4 NWLR (Pt.67) 787 at 792; Obodo v. Olumo & Anr. (1987) 3 NWLR (Pt.66) 111 at 123. PER JOHN AFOLABI FABIYI, J.S.C.
WHETHER AN APPELLANT HAS RIGHT TO DICTATE TO THE PROSECUTION THE WITNESSES TO CALL OR NOT TO CALL
The appellant has no right to dictate to the prosecution the witnesses to call or not to call. The principle of law was well restated in Ime David Idiok v. The State (2005) 13 NWLR (Pt.1104) 225. PER JOHN AFOLABI FABIYI, J.S.C.
WHETHER A BLOOD RELATION OF A DECEASED PERSON CAN NOT TESTIFY FOR THE PROSECUTION
It must be stressed here that there is no law which precludes a blood relation of a deceased person from testifying for the prosecution. Evidence of a relation can be accepted if cogent enough to rule out element of falsehood and bias. What a court must consider as an abiding factor is the truthfulness of the witness touching on his integrity, veracity and knowledge of the matter. See: Arehia & Anr. v. The State (1982) 4 SC 78 at 92; Oguonzee v. The State (1998) 5 NWLR (Pt.551) 521. PER JOHN AFOLABI FABIYI, J.S.C.
WHETHER EVIDENCE OF A SINGLE WITNESS CAN SUSTAIN A CHARGE IN A CRIMINAL MATTER RELATING TO MURDER
It should be further depicted here that evidence of a single witness, as herein, if believed by the court can sustain a charge even in a criminal matter relating to murder. The trial court believed the evidence of P.W.5 as to how the appellant and his co-horts killed the deceased and disposed of his body. The court below affirmed same. I feel they were in order. See Onafowokan v. The State (1987) 3 NWLR (Pt.61) 538; Efiong v. The State (1998) 8 NWLR (Pt.562) 362; Ali v. The State (1988) 1 NWLR (Pt.68) 1; Princewill v. The State (1994) 20 LRCN 303, 318; (1994) 6 NWLR (Pt.353) 703. PER JOHN AFOLABI FABIYI, J.S.C
JUSTICES
MAHMUD MOHAMMED Justice of The Supreme Court of Nigeria
JOHN AFOLABI FABIYI Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria
JOHN INYANG OKORO Justice of The Supreme Court of Nigeria
Between
SIMEON NEBEIFE OBIDIKE Appellant(s)
AND
THE STATE Respondent(s)
JOHN AFOLABI FABIYI, J.S.C. (Delivering The Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Enugu Division (the court below) delivered on 18th July, 2001. Therein, the court below dismissed the appeal of the appellant and affirmed the judgment of the trial High Court of Anambra State, Otuocha per Ezeani, J. delivered on 1st August, 1996 wherein he was convicted and sentenced to death along with five others for the murder of one Maduneke Enweonye. I note it here that the appellant was the 4th accused person at the trial court.
As extant in the record, the facts as briefly stated by the prosecution are that there was a dispute over the ownership of Ikpi fish pond in Anaku between one Sunday who claimed exclusive ownership and the rest of Umuereagu Isiokwe kindred which claimed communal ownership. The dispute was resolved in favour of the community which later leased the fish pond to one Chief Philip Ezeoba of Nando for five years. The said chief employed the 1st accused person as a guard of the fish pond through his farm manager called Vincent Okongwu (P.W.2). Subsequently, the lessee of the pond, through his manager, removed the 1st accused as the pond guard and replaced him with Maduneke Enweonye – the deceased. The 1st accused who was not happy with the development, went in company of one Onwualu Ikenna to the farm Manager to complain about his replacement with the deceased.
There was a general meeting of Isiokwe community on 21st May, 1994 at the Town Hall during the community’s ‘Uta Amanwuli’ festival where the issue of Ikpi fish pond was raised. The 1st accused at the meeting openly threatened to kill the deceased and do away with his corpse if he continued to go to the pond and that he should be so warned. The 1st accused was challenged for making such a statement and was advised to withdraw same. Rather than do so, he stormed out of the meeting and was followed by the other accused persons (the appellant herein inclusive) as well as some others at large. The 1st accused and his group then re-convened in his house near the Town Hall to hold a secret meeting.
The said Manager, Vincent Okongwu testified that on 9th June, 1994, he went to Ikpi fish pond to provide food for the deceased but did not find him there. He searched frantically for the deceased but did not find him. He reported the missing of the deceased to the villagers. Search parties thoroughly searched for the deceased to no avail. The deceased could not be located. A report was made to the police. On investigation, the accused persons were arrested and statements were taken from them and witnesses. Although the body of the deceased was not eventually found, the police had cause to arraign the accused persons in court for murder of the deceased. At the trial court, P.W.5 gave a graphic picture of how the killing of the deceased was carried out. The learned trial judge believed the evidence of the P.W.5, Godfrey Emengini and convicted all the six accused persons but acquitted and discharged the 7th accused person who he gave the benefit of his doubt. The appeal to the court below, was dismissed. The appellant who like some others before him, felt unhappy with the stance of the court below has also appealed to this court.
On 16th January, 2014 when the appeal was heard, Mr. J.O.N. Ikeyi, learned counsel for the appellant, adopted and relied on the appellant’s brief which was filed on 16th November, 2011 but deemed duly filed on 20th June, 2012. He urged that the appeal be allowed. Mr. P. A. Afuba, Hon. Attorney-General of Anambra State, duly adopted and relied on the respondent’s brief of argument filed on 30th November, 2012. He urged the court to dismiss the appeal and affirm the decision of the court below which affirmed the judgment of the trial court.
The sole issue couched for the determination of the appeal on behalf of the appellant reads as follows:-
“Whether the prosecution proved its case beyond reasonable doubt, upon the community reading of sections 131, 132, 135, 136 and 140 of the Evidence Act, Laws of the Federation of Nigeria, 2011.”
On behalf of the respondent, the two issues decoded from the appellant’s five (5) grounds of appeal for a proper determination of the appeal, read as follows:-
“(i) Whether the court below was right in affirming the conviction of the appellant based on the evidence of the single eye witness; the P.W.5.
(ii) Whether the appellant can raise the issue of alibi without leave when the issue was abandoned at the trial court and was neither raised nor considered at the court below.”
Learned counsel for the appellant submitted with utmost force that the prosecution failed to prove its case beyond reasonable doubt. He opined that the burden on the prosecution is to prove the guilt of the appellant in respect of the offence charged, beyond reasonable doubt. He submitted that the essential ingredients that the prosecution must establish in order to prove its case beyond reasonable doubt to justify a conviction for murder are as follows:-
(a) That the deceased is dead.
(b) That the death of the deceased was as a result of the act of the accused.
(c) That the act of the accused was intentional, with knowledge that death or grievous bodily harm was its probable consequence. See: Edwin Ogba v. The State (1992) 2 NWLR (Pt.222) 164 at 198; Akinfe v. The State (1988) S NWLR (Pt.85), Onah v. The State (1985) 3 NWLR (Pt.12) 236 at 537; Oteki v. Attorney-General; Bendel State (1986) 2 NWLR (Pt.24) 648.
Learned counsel contended that it is not borne out by the printed record of appeal that Maduneke Enweonye was proved by any credible evidence to have died. He opined that the court below concluded its introduction of the facts of the prosecution’s case that – ‘the culmination of the disputation and protest is that on 8/6/94 Maduneke Enweonye disappeared and he has never been seen again by those who knew him’.
In respect of this crucial point, the learned Attorney-General of Anambra State submitted that the prosecution proved by credible evidence and beyond reasonable doubt not only the fact of the death of the deceased but also that he was killed by the appellant along with his collaborators.
As extant on page 172 of the record, the learned trial judge, in a very meticulous fashion, found as follows:-
“In the instant case, the eye witness account given by P.W.5 was not shaken by cross-examination. The accused persons were seen with the body of the deceased gushing out blood at night and the deceased eventually died and the body was not found. The court is bound to hold that the guilt of the six accused persons had been proved beyond reasonable doubt.”
It is now settled that an appellate court should not ordinarily substitute its own views of fact for those of the trial court. An appellate court will not interfere with findings of fact by a trial court except where wrongly applied to the circumstance of the case or the conclusion reached was perverse. Certainly, ascription of probative value to the evidence of witnesses is pre-eminently the business of the trial court which saw and heard the witnesses; more especially, where the issue turns on the credibility of witnesses. See: Ebba v. Ogodo (1984) 1 SCNLR 372; Balogun v. Agboola (1974) 1 All NLR (pt.2) 66; Nneji v. Chukwu (1996) 10 NWLR (Pt.378) 265; Ogbechie v. Onochie (1998) 1 NWLR (pt. 470) 370; Bamigboye v. University of Ilorin Anr. (1999) 6 SC (Pt.11) 72; Olanrewaju v. Governor of Oyo State & Ors. (1992) 11-12 SCNJ 92 and Motunwase v. Sorungbe (1988) 5 NWLR (Pt. 92) 90.
The court below rightly accepted the clear finding of the trial judge on the guilt of the appellant for the murder of the deceased. At page 304 of the record, the court below, on this point, found as follows:-
“Barring the error about using the traces of blood and foot prints of the appellants as pieces of circumstantial evidence which is unnecessary in the face of the compelling eye-witness account of the gory crime by the P.W.5, the learned trial judge sifted the evidence with meticulous care —
With the gripping impact of the evidence of the prosecution the guilt of the appellants for killing of Maduneke Enweonye becomes inextricably established notwithstanding the native ruse of disposing of the corpse that did not reckon with the indomitable capacity of the law to penetrate the inner recesses of the stratagem of the black-guard among human species.”
The above finding has root in the clear and unchallenged evidence of P.W.5 at pages 95-96 of the record of appeal. It is apt to reproduce same hereunder as follows:-
“Oguejofor Ilodigwe said they would bury him by the side of Ikpi. Francis Obidike told him that if they bury Maduneke by the side of Ikpi the corpse will be easily located. Francis Obidike asked me what I was waiting for. He said I should go since I had taken the oath for them. I started going home slowly. I heard Francis Obidike tell the others that they should take the corpse to Anambra River. Onwughalu Ikenna told Francis Obidike that the decision was good but that unless they tie the corpse to something heavy it will float on the river.”
It is glaring that there are two concurrent findings of the two courts below which link the appellant herein and his co-horts with the murder of the deceased. The court below saw no reason to disturb the finding of fact made by the trial court as it relates to the testimony of P.W.5. The court below, per Olagunju, JCA (of blessed memory) found as follows:-
“The question of the conviction of the appellants being based on mere suspicion suffers from the guilt of the appellants being seen from the myopic lenses of counsel for the appellants which cannot see through the force of evidence of P.W.5, as an eye witness account.”
The argument of the appellant on this point turns on the credibility of the eye-witness to the crime-P.W.5 upon which the appellant’s conviction was based. The court below was perfectly in order when it refused to substitute the views of the trial court with any other view. It should be reiterated once more that it is not the function of an appeal court to substitute its own view for those of the trial court where the issue turns on the credibility of witnesses. See: Nwosu v. Board of Customs and Excise (1985) 5 NWLR (Pt.93) 225; Egonu v. Egonu (1978) 11-12 SC 111.It goes without saying at this point that there are concurrent findings of fact by the two lower courts on the credibility of the evidence of P.W.5 on the basis of which the conviction of the appellant was founded. It is now well settled that in such a situation, as herein, this court will not ordinarily disturb such concurrent findings unless same is shown to be perverse or there is an error in procedure or substantive law which has occasioned miscarriage of justice. I shall not interfere as same has not been demonstrated herein. See: Kale v. Coker (1982) 12 SC 252; Oduntan v. Atibu (2000) 7 SC (Pt.2) 106; Anaeze v. Anyaso (1993) 5 NWLR (291) 1, Echi & Ors. v. Nnamani & Ors. (2000) SC 62 at 70; Nwokoro v. Onuma (1999) 9 SC 59; Chinwendu v. Mbamali & Anr. (1950) 3-4 SC 31 at 71; Lokoyi v. Olojo (1988) S SC 61 and Coker v. Oguntola & Ors. (1985) 6 SC 132.
The appellant attempted to make an issue that the distress call of the deceased could not have been heard by P.W.5 from where he was fishing if it had taken 45 minutes for P.W.5 to reach the location from where the distress call emanated. It was submitted on behalf of the respondent that the argument of the appellant’s counsel in this respect is misconceived and does not reflect the evidence of P.W.5.
The respondent’s stance on this point is quite real. It is apt to reproduce the evidence of p.W.5 at page 94 of record which goes as follows:-
“When I reached at Iyinsawa which is at Ikpi fishing pond, as I was fishing I heard a loud noise saying ‘Anaku doo Isiokwe doo’. I listened carefully and the noise was coming from Ikpi. I stopped fishing and listened attentively. It was the voice of Maduneke Enweonye. I decided to go to Ikpi to find out the reason for the shout. As I was going the ground was muddy and difficult to walk upon.”
From the above reproduced testimony of the P.W.5, it is clear that the estimated time of 45 minutes it took P.W.5 to reach the location of the distress call, in the circumstance, was quite reasonable. The miniature complaint was only designed to raise dust; as it were. It did not take into consideration the purport of the bleak facts in the evidence of P.W.5. It failed to hit the desired target. Let me say it that address by counsel should be tailored to be in line with the real evidence on record and not otherwise. This is more so; as addresses are designed to assist the court. No amount of brilliance in a fine speech can make up for the lack of evidence to prove and establish or else disprove and demolish points in issue. There is no need to make submission against the flow of evidence in a bid to procure underserved attention. See: Niger Construction Ltd. v. Okugbeni (1987) 4 NWLR (Pt.67) 787 at 792; Obodo v. Olumo & Anr. (1987) 3 NWLR (Pt.66) 111 at 123.
It was also contended on behalf of the appellant that there were two contradictory sets of evidence with respect to the scene of crime. The respondent felt otherwise.
It is clear to me that the evidence of P.W.5 fixed the scene of crime to be at Ikpi where the deceased’s hut was located. The question of two contradictory sets of evidence with respect to the scene of crime, as argued by the appellant, is not borne out of the evidence on record. It exists in the appellant’s feigned imagination. I could not follow the rationale for same with adequate precision. It was also designed to raise unnecessary dust; as well.
I now move to the issue of threat to deceased’s life by the first accused-Francis Obidike-the arrow-head of the cruel episode. On behalf of the appellant, it was canvassed that all the witnesses called by the prosecution were those people on the deceased’s faction in the dispute over the ownership of Ikpi fish pond and that no witness was called from the 1st accused’s faction. Appellant further complained that the police investigation was one-sided as no witness from the appellant’s side of the dispute was interrogated by the police in the course of investigation. It is clear to me that the defence is not in any way prevented from calling any witness he desired in disproof of the threat on the life of the deceased. The appellant chose not to call any other witness on this point. The appellant has no right to dictate to the prosecution the witnesses to call or not to call. The principle of law was well restated in Ime David Idiok v. The State (2005) 13 NWLR (Pt.1104) 225.
Based on the evidence of P.W.1, P.W.3 and P.W.4 the trial court believed and found that the 1st accused -Francis Obidike threatened to kill the deceased on 21-05-1994 if he failed to stop going to Ikpi fishing pond. The court below affirmed the finding of the trial court. The complaint of the appellant in this respect rests on a shifting sand. It has no basis in law. See: the cases of Ohunyon v. The State (1996) 3 NWLR (Pt.436); 264, Ogoala v. The State (1991) 2 NWLR (Pt.175) 509, and Ugwumba v. The State (1993) 5 NWLR (Pt.296) 660, all cited by the learned counsel to the respondent. They are quite in point and relevant. It should be stated here that evidence of threat to kill the deceased shortly before the incident added credence to the belief in the evidence of P.W.5 by the trial court. Such belief by the trial court cannot be impugned by the appellant; with clear conscience, in the prevailing circumstance of this matter.
The appellant also made an issue over the testimony of the P.W.5 who made his statement to the police on 30th August, 1994, nearly three months after the deceased passed on. The first complaint was that the lateness of the statement robbed the appellant of the opportunity to react to the points contained therein.
The Hon. Attorney-General for the State maintained that nothing can be further from the truth. He asserted that as it can be seen on pages 71 and 128 of the record of appeal, the prosecution did not open its case until 23/3/95 nearly seven months after the statement was made and the defence did not open until 2/5/96, over 20 months after the making of the statement of P.W.5.
I feel that the respondent is on the right track. It is obvious that the defence had all the lee-way it needed to react to the points raised in the statement of P.W.5 the only eye-witness to the murder of the deceased by the appellant and his co-horts. This complaint is, no doubt, a ruse. The appellant further complained that p.W.5 failed to mention the names of the accused persons to the police at the earliest opportunity. Learned counsel for the appellant cited the cases of Udeh v. The State (2001) 2 ACLR 356 at 365; Bozin v. The State (1985) 2 WLR (Pt.8) 465; Ebre v. The state (2001) 12 NWLR (Pt.728) 617; Abudu v. The State (1985) 1 NWLR (Pt.1) 55 and Sunday Ani v. The State (2009) All FWLR (Pt.482) 1044.
Learned Attorney-General for the State maintained that the submission of the appellant is totally misconceived and that the cases cited do not support the appellant’s contention. He asserted that from the concurrent findings of fact in this appeal, the P.W.5’s first and earliest opportunity to mention the name of the appellant was after the bond occasioned by the ‘Iyi Ani’ oath forced on him was broken or released. It was then that p.W.5 narrated all that he witnessed at the locus criminis to his uncle and thereafter to police on 30/8/94.
The submissions of the Attorney-General can well be put on their mettle. The two courts below found correctly that the delay on the part of the P.W.5 in making a report to police was satisfactorily explained. Same remains faultless. The court below affirmed the belief and acceptance by the trial court in the truth of the story related by P.W. 5 regarding the administration of the oath on him. I tend to agree with the two lower courts in accepting the explanation of P.W.5 on the issue of oath and its effects. After all, the appellant and his co-horts are native people with their ancient and,/or mundane beliefs. The court may not countenance same but such local native people like the appellant should be availed due latitude for their self-imposed native beliefs. To this extent, the requirement of section 131 of the Evidence Act was satisfied by the prosecution. The authorities cited by the appellant’s counsel are not directly in point.
In a bid to cast a damaging slur on the evidence of P.W.5, the appellant claimed that it was the P.W.5 who used a gong to announce the disappearance of the deceased and his death to the community.
It was submitted on behalf of the respondent that there was no such finding by the trial court as borne out from the record. The learned Attorney-General for the State referred to pages 166-167 of the record of appeal wherein the learned trial judge found and held as follows:-
“Judging by his statement to the police, P.W.5 knew who killed Maduneke. He did not tell anyone what he knew because of the oath he swore to. The accused persons however testified that P.W.5 joined in the search and was in fact the person who beat the gong summoning everyone to the village square. However, none of the accused persons stated that P.W.5 was the person who beat the gong in their statement to the police. P.W.5 and P.W.6 had testified that they did not go for the search of Maduneke. I believe them.”
With the above position of the learned trial judge, the complaint of the appellant that p.W.5 was the person who beat gong to summon people to the village square falls flat. It is a farce which does not deserve any further attention. In this respect, the effort made to disparage the evidence of P.W.5 has hit a brick wall.
On behalf of the appellant, it was further submitted that the prosecution failed to prove customary oath taking practice called ‘Iyi Ani’ which according to counsel, the appellant denied its existence in his statement to the police. The learned Attorney-General on behalf of the respondent asserted that the submission of counsel is a clear distortion of facts. He referred to the appellant’s statement at pages 218-220 of the record. He maintained that there is nothing contained in the said statement denying ‘Iyi Ani’ customary oath practice. He also observed that there is no such denial evidence in the testimony of the appellant in court.
Again, I strongly feel that the respondent is on a firm stand in the position taken by it. In a bid to score a cheap point, a party should not resort to distortion of the facts. From a clear reading of the appellant’s statement to the police at pages 218-220 of the record and his evidence before the court at pages 139-140 of the record on 23/5/96, there is no shed of denial of ‘Iyi Ani’ customary oath practice by the appellant.
It should be stressed here again that what is relevant is whether P.W.5 genuinely believed in the potency and efficacy of the oath administered on him by the accused persons and not whether witnesses should be called to establish the existence of the customary oath practice. P.W.5 was only a witness. He was not on trial. The trial judge believed him and so be it.
It was further urged on behalf of the appellant that the prosecution should have called the native doctor who neutralized the oath administered on P.W.5. The respondent maintained that there was no such duty placed on it.
It must be stated in clear terms that it is not the business of the defence to dictate to the prosecution the witness to call or not to call. If the appellant desired to call the native doctor as his witness to challenge the veracity of the evidence of P.W.5; nothing prevented him but he failed to so do. This court so found in the sister appeal of Nkebisi & Anr. v. The State (2010) 5 NWLR (pt.1188) 472 at 485.
It was further canvassed on behalf of the appellant that the evidence of P.W.5 who is shown to be from the family of the deceased should be heated with caution, being in the class of evidence of persons interested and which ought to require corroboration.
Learned Attorney-General for the State opined that the submission of the appellant’s counsel has no basis in law. He referred to Nkebisi & Anr. v. The State (supra) at page 484.
It must be stressed here that there is no law which precludes a blood relation of a deceased person from testifying for the prosecution. Evidence of a relation can be accepted if cogent enough to rule out element of falsehood and bias. What a court must consider as an abiding factor is the truthfulness of the witness touching on his integrity, veracity and knowledge of the matter. See: Arehia & Anr. v. The State (1982) 4 SC 78 at 92; Oguonzee v. The State (1998) 5 NWLR (Pt.551) 521.
It should be further depicted here that evidence of a single witness, as herein, if believed by the court can sustain a charge even in a criminal matter relating to murder. The trial court believed the evidence of P.W.5 as to how the appellant and his co-horts killed the deceased and disposed of his body. The court below affirmed same. I feel they were in order. See Onafowokan v. The State (1987) 3 NWLR (Pt.61) 538; Efiong v. The State (1998) 8 NWLR (Pt.562) 362; Ali v. The State (1988) 1 NWLR (Pt.68) 1; Princewill v. The State (1994) 20 LRCN 303, 318; (1994) 6 NWLR (Pt.353) 703.The appellant also felt that the discharge and acquittal of the 7th accused person on the strength of his successful plea of alibi impacts negatively on the evidence of P.W.5 which fixed the appellant at the scene of crime.
Hon. Attorney-General on behalf of the State again referred to the sister appeal of Nkebisi & Anr. v. The State (supra) at pages 484-485 where same issue was considered by this court and resolved against the appellants therein. He maintained that same applies with equal force to the appellant in this appeal. This court therein pronounced per Ogebe, JSC as follows:-
“My quick reply to this is that the appellants and the 7th accused at the court of first instance did not have a common base for their defence and so the discharge of one of them cannot lead to the discharge of all of them. From the facts of this case the 7th accused gave a defence of alibi which the trial court gave him the benefit of. The present appellants did not claim that they were together with the 7th accused in the location of his alibi. It followed, therefore, that his discharge could not affect the conviction of the appellant.
I agree that the above finding in the sister appeal applies with equal force to the present appellant herein. Furthermore, at the trial court, the appellant’s counsel gave no address in respect of issue of alibi. The court did not consider same. The issue touching on alibi was not raised at the court below. It is being surreptitiously raised before this court, to no avail. This is because there is no ground of appeal against the decision of the court below on issue of alibi. Same is being raised in this court for the first time. Leave of this court was neither sought nor obtained. It is incompetent and should be, and is hereby discountenanced. See: Jatau Ahmed (2003) 1 SC (Pt.11) 118; Kate Enterprises Ltd. v. Daewoo Nig. Ltd. (1985) 2 NWLR (Pt.5) 116.
Learned counsel for the appellant tried his utmost best to obliterate the evidence of P.W.5, the lone eye-witness; to no avail. He strenuously submitted that the charge against the appellant was not proved beyond reasonable doubt. It must be noted that same is not proof to the hilt. See: Miller v. Minister of Pension (1947) 2 ALL ER 372. In Princewill v. The State (1994) 20 LRCN 303 at 318, this court, per ,
Iguh, JSC held –
“That where the court is satisfied that prosecution has proved beyond reasonable doubt that the death of the deceased was caused directly or indirectly by the act of the accused to the exclusion of all other possibilities, the court is bound to convict.”
The two courts below so found that the charge against the appellant was proved beyond reasonable doubt. I agree and pitch my tent with them. This appeal lacks merit and it is hereby dismissed. I affirm the decision of the court below which affirmed the judgment of the trial court.
MAHMUD MOHAMMED, J.S.C.: I have been privileged before today of reading the judgment of my learned brother Fabiyi, JSC which has just been delivered. On the resolution of the only one issue placed before this Court for determination by the Appellant his Appellant’s brief of argument, I totally agree with my learned brother that this appeal lacks merit and ought to be dismissed. This is because the evidence on record is quite overwhelming that the Appellant participated with others identified in the evidence in the acts that resulted in the death of the deceased Maduneke Enweonye, whose corpse was disposed off by the Appellant and his collaborators in the Anambra River to avoid it being discovered upon careful search. I therefore see no merit at all in this appeal which I hereby dismiss. The conviction of the Appellant for the offence of murder and the sentence of death passed upon him by the learned trial Judge and affirmed by the Court below, are hereby further affirmed.
MARY UKAEGO PETER-ODILI, J.S.C.: I am in total agreement with the judgment and reasoning as just rendered by my learned brother, John Afolabi Fabiyi, JSC. To emphasise my support, I shall make the following remarks.
This is an appeal against the decision of the Court of Appeal, Enugu Division delivered on the 18th July, 2001 wherein the appeal of the Accused/Appellant was dismissed and the decision of the High Court of Anambra State, Otuocha Judicial Division presided over by Hon. Justice Anthony Ezeani convicting the appellant for the murder of one Maduneke Enweonye on 1st August, 1996 was affirmed.
The appellant was tried for the murder of Maduneke Enweonye before the trial Court as the 4th Accused person together with 6 other accused persons. After taking evidence of the prosecution and defence witnesses, the trial court delivered its considered judgment wherein it found all the accused persons except the 7th accused guilty of murder and consequently convicted them. The convicted accused persons being dissatisfied appealed to the Court of Appeal or the Court below for short which after hearing, dismissed same and affirmed the decision of the trial court. Still dissatisfied, the appellant has come before this court on a five ground of appeal.
FACTS BRIEFTY STATED:
It is common ground in this case that all the accused persons including the appellant and the deceased belonged to the same Unuereagu Isiokwe Kindred of Anaku Community in the then Oyi Local Government Area of Anambra State. It was the Respondent’s case at the trial that there was a dispute over the ownership of Ikpi Fish Pond in Anaku between one Sunday who claimed exclusive ownership and the rest of Umuereagu Isiokwe Kindred who claimed communal ownership. The dispute was later resolved in favour of the Kindred which then leased the pond to one Chief Philip Ezeoba of Nnado for five years.
The lessee of the fish pond had a farm manager called Vincent Okongwu and also engaged Francis Obidike the 1st accused as a guard of the fish pond. Subsequently, the lessee of the pond, through his manager, removed the 1st accused as the pond guard and replaced him with Maduneke Emereonye, the deceased. The 1st accused, not being happy with this development had gone in company of one Onwualu Ikenna, to the farm manager to complain about his replacement with the deceased.
There was a general meeting of Isiokwe community on 21st May, 1994, at the Town Hall during the Community’s “Uta Amanwulu” festival where the issue of Ikpi fish pond was raised. The 1st accused, at the said meeting openly threatened to kill the deceased and do away with his corpse if he continued to go to the pond and that he should be so warned. The meeting challenged the 1st accused for making such statement and 1st accused was consequently advised to withdraw same. Rather than to do so, the 1st accused stormed out of the meeting and was followed by the rest of the accused persons as well as some other persons still at large. The 1st accused and his group then re-convened in the house of the 1st accused near the Town Hall and held a secret meeting.
It is in evidence that on 9th June, 1994, the farm manager, Vincent Okongwu went to the Ikpi fish pond to provide food for the deceased but did not find him there. The farm manager searched frantically for the deceased but still could not find him at the pond. He reported the missing of the deceased to the villagers who constituted search parties and thoroughly searched for the deceased but still could not find him.
A report was then made to the Police which commenced investigation in the course of which the accused persons were arrested. The police obtained the statements of both the accused persons who denied any involvement with the incident, as well as the statements of other prosecution witnesses. Although, the body of the deceased was not eventually found, the police had sufficient evidence to arraign the accused persons in court for the murder of the deceased.
Although the appellant mentioned in his statement to the police that he was not at Ikpi fish pond in Anaku on the day of the incident but was at his rice farm within the same Anaku Community, he did not provide sufficient details of his activities on the said date such as to show that he could not have gone to Ikpi at the material time. In his evidence in Court, the appellant never testified that he was elsewhere other than the scene of crime at the material time. He did not also call as witnesses, any of the persons he claimed were with him at the rice farm. The alibi of the appellant was not made an issue in the final address of counsel at the trial Court and was thus not considered in the judgment of the trial Court. It was equally not made an issue in the Court below and was therefore not considered in the judgment of the Court below. It is now being raised for the first time in this Court and without obtaining leave to do so.
In the course of the trial, the PW5 who was an eye witness to the murder of the deceased by the accused persons gave a graphic and detailed account of how the accused person (whom he knew very well) killed the deceased and planned to dispose of the body. He also gave evidence of how under the threat of instant death, he was subjected to an oath of secrecy, not to reveal to any person, what he had witnessed. PW5, feeling bound by the oath, did not narrate his ordeal to any person until after he fell sick and the cause of his ailment was diagnosed by a native doctor to be linked with the failure to disclose the people that killed his kinsmen. The “Iyi Ani” oath which was forcibly administered on PW5 by the accused persons was then neutralized by the native doctor, by the performance of certain rituals after which the PW5 was then able to tell his uncle what he saw and the uncle took him to the police to make a statement which explained the few months delay in obtaining the statement of this witness.
The trial Court accepted and believed the evidence of PW5 and consequently found the 1st to 6th accused persons guilty of murder and convicted them accordingly. The 7th accused person had however set up an alibi in his defence for which the trial Court resolved the benefit of doubt in favour of the 7th accused person and consequently discharged and acquitted him. The State did not appeal that discharge and acquittal of the 7th accused persons.
The hearing at the Supreme Court was done on the 16th day of January, 2014 at which J. O. N. Ikeyi Esq adopted the Appellant’s Brief which he settled, filed on 16/11/2011 and deemed filed on 20/6/12. In the said Brief of Argument, learned counsel decoded a single issue for determination which is stated thus:-
Whether the prosecution proved its case beyond reasonable doubt upon the Community reading of Sections 131, 132, 135, 136 and 140 of the Evidence Act, Laws of the Federation of Nigeria, 2011.
P. A. Afuba Esq, Attorney General of Anambra State for the Respondent adopted their Brief of Argument which he settled and filed on 30/11/12. He distilled two issues for determination which are as follows:-
(i) Whether the Court below was right in affirming the conviction of the Appellant based on the evidence of the single eye witness, the PW5
(ii) Whether the Appellant can raise the issue of alibi without leave when the issue was abandoned at the trial Court and was not raised nor considered at the Court below
I feel the issues as formulated by the Respondent are apt for the consideration of this appeal and I shall use them as crafted.
ISSUE NO.1:
Whether the Court was right in affirming the conviction of the Appellant based on the evidence of the single eye witness, the PW5.
Arguing for the Appellant, Mr. Ikeyi of counsel submitted that the prosecution failed to prove its case beyond reasonable doubt as the prosecution bears the burden of establishing by credible and admissible evidence that there are no other co-existing circumstances which will weaken the guilty inference of the accused. He cited Onogodo v State (1981) 5 SC 5; State v Ogunbuijo (2001) 2 ACLR 527.
He submitted that the essential ingredients that the prosecution must establish satisfactorily and conjunctively are that the deceased is dead, that the death of the deceased was as a result of the act of the accused and that the act of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence. He cited many cases viz: Edwin Ogba v The State (1992) 2 NWLR (Pt.222) 164 at 198; Akinfe v. The State (1988) 3 NWLR (Pt.85); Onah v The State (1985) 3 NWLR (Pt.12) 236 at 537; Oteki v A.G. Bendel State (1986) 2 NWLR (Pt.240 648.
Further submitted for the Appellant is that it is not borne out of the record that Maduneke Enweonye was proven by any credible and admissible evidence to have died. That the only proof which the prosecution was able to proffer was that since the 8th day of June, 1994 the alleged deceased disappeared and has not been seen by those who knew him.
Learned counsel for the Appellant summarised the testimony of each prosecution witness and came to the conclusion that there was no direct evidence and what the trial court regarded as suitable circumstantial evidence, capable of founding a conviction left a lingering doubt as to the guilt of the accused which benefit should enure to the appellant. That even the Court below established that the evidence of PW5 had shortcomings and so cannot be placed on such a pedestal to generate inferences of either the guilt or innocence of the appellant and so cannot ground a conviction and the doubt should be resolved in favour of Accused. He cited Ogbor v The State (1990) 3 NWLR (Pt.139) 484.
That there were contradictions in the evidence of the prosecution witnesses, one from the other and the confusion thereby leads to the Court not accepting one and rejecting the other without any explanation from the prosecution. He cited Onubogu v. The State (1974) 9 SC 1 at 20; Ateji v State (1976) 2 SC 79; The State v. Nwachukwu (1992) 1 NWLR 262; Boy Muka v State (1976) 9 – 10 SC 305.
Mr. Ikeyi of counsel contended that the appellant was not afforded a fair trial and hearing in the case as the belated statement of the PW5 relied upon by the trial Court and the Court below robbed the Appellant of the opportunity to react to the allegations therein contained. That the police had concluded their investigation of the statements made by all the other witnesses and arraigned the appellants in court before the statement of the PWs was offered. That where a witness such as PW5 fails to mention the name of a suspect to the Police at the earliest opportunity, that would detract from whatever credibility the trial court would wish to ascribe to his evidence unless he is shown not to have known the suspect by name at the time of the incident. He relied Udeh v. State (2001) 2 ACLR 356 at 365; Bozin v State (1985) 2 NWLR (Pt.8) 465; Ebre v State (2001) 12 NWLR (Pt.728) 617 etc.
For the appellant was also canvassed that the provisions of Sections 131 (1) and (2) and 135 of the Evidence Act, 2011 require the prosecution to prove those facts which constitute the reason or explanation for the delay in mentioning the appellants whom the PWS later alleged, he saw killing the deceased. That PW5 knew all the appellants before then, including the 7th accused who was acquitted on the strength of his plea of alibi. He said the excuse given by the PW5 for not disclosing the names of the appellants to the Police at the earliest opportunity is not tenable and did not meet the requirement of proof beyond reasonable doubt. This being because the traditional oath – taking practice used as excuse for the delay of PW5 in disclosing the names of the suspects and the fact of the killing needed be proved before it would be admissible evidence and counsel’s submission not enough. He cited Osolu v Osolu (1998) 1 NWLR (Pt.535) 532; Ekoenga v Ozogula II (1962) 1 SCNL 423; Adeogun v Okunrin (2004) 2 NWLR (Pt.856) 52; Sections 73 and 74 (a) and (c) of the Evidence Act 2011; Nigeria Arab Bank Ltd v Femi Kano Ltd (1995) 4 NWLR (Pt. 387) 100 at 106 etc.
Mr. Ikeyi of counsel stated that the alleged traditional or native doctor, the effect of whose professional expertise was the foundation of the evidence of the PW5 and its prejudicial effect on the case of the appellant made the native doctor as vital witness and failure to call him was fatal to the case of the prosecution. He cited State v Nnolim (1994) 5 NWLR (Pt.345) 394; Frano Nig. Ltd v Daodu (1993) 3 NWLR (Pt.281) 372.
Mr. Ikeyi of counsel said the evidence of the native doctor which was tendered through PW5, a non – expert is an inadmissible piece of evidence and PW5 did not offer any ground for that opinion and so Section 67 of the Evidence Act 2011 applies since the exceptions under Sections 58 – 76 of the Act would not avail him. That the wrongfully admitted evidence would therefore not be of use in proof of the case as required by law. He cited Section 251 (1) of the Evidence Act 2011: The Queen v Olubunmi Thomas (1958) 3 FSC 8; Harris v DPP (1952) AC 708; MCC v Azubuike (1990) 5 SCNJ 75.
In response, learned counsel for the Respondent, Mr. Afuba stated that the two concurrent findings of fact inexorably linking the appellant with the murder of the deceased which findings were arrived at from the trial judge’s careful, meticulous and exhaustively evaluated evidence of PW5 should be upheld and not disturbed. He cited Bamgboye v University of Ilorin & Anor (1999) 6 SC (Pt.II) 72; Nwokoro v Onwuma (1999) 9 SC 59; Chinwendu v Mbamali & Anor (1980) 3 – 4 SC 31 at 71; Lokoyi v Olojo (1983) 8 SC 61; Coker v Oguntola & Ors (1985) 6 SC 132.
Learned Attorney – General for the Respondent contended that what the appellant had done was magnify and exaggerate as contradictions, minor discrepancies which were not material points like the material ingredients of the offence. He cited Uwagboe v State (2008) All FWLR (Pt.419) 425 at 432-433 SC.
He went on to state that the police was not obliged to interrogate all and sundry nor must the prosecution call a whole host of witnesses in proof of a criminal charge. That the Appellant could have called the owner of the fish pond if he was necessary for their defence and the prosecution would not be prejudiced because it failed to call him. He cited Ime David Idiok v The State (2008) 13 NWLR (Pt.1104) 225; Ohunyon v The State (1996) 3 NWLR (Pt.436); Ogoala v The State (1991) 2 NWLR (Pt.175) 509; Ugwunba v The State (1993) 5 NWLR (Pt.296) 66.
For the Respondent was submitted that the finding of the Court below which affirmed the decision of the trial Court that the delay on the part of PW5 in making a report to the police was satisfactorily explained cannot be faulted.
The issue here raised is hinged on the concurrent findings of the two Courts below. In that of the trial Court can be seen the performance of the duty only available to a trial Court and that has to do with first hand impression of the judge of trial who directly heard the witnesses including the accused if he so testified and the demeanour of the witnesses on testifying which would assist that court to make a meticulous well informed evaluation. In this regard, the trial Court I shall quote the relevant part of the judgment of which is as follows:-
“Although PW5 is from the same Umuakunma family of Isiokwe as the deceased, after watching him testify, I am not in any doubt that he had no purpose of his own to serve in giving his evidence, I therefore hold that the evidence of pW5 is credible. The prosecution witnesses and the accused persons are well known to one another. They all, excepting the policemen, came from the same Isiokwe village in Anaku Community…”
In the instant case, the eye witness account given by PW 5 was not shaken by cross-examination. The accused persons were seen with the body of the deceased gushing out blood at night and the deceased eventually died and the body was not found. The Court is bound to hold that the guilt of the six accused persons had been proved beyond reasonable doubt…. Rather, their conviction like that of the 1st Appellant was based on a common object. They were identified by the PW5, as present at the scene of crime where the witness saw the lifeless body of the deceased mortally wounded. The witness described the weapon held by each of them present at the scene. The law is that once attacked on a victim is made by two or more persons acting in concert and in furtherance of their common intention each and every one of them is liable for consequences of the act. In such a case, it does not matter which of the accused did what”.
The Court below went on thus:
“Barring the error about using the traces of blood and footprints of the Appellants as pieces of circumstantial evidence which is unnecessary in the face of the compelling eye-witness account of the gory crime by the PW5, the learned trial judge sifted the evidence with meticulous care…… With the gripping impact of the evidence of the prosecution the guilty of the Appellants for kilting of Maduneke Enweonye becomes inextricably established notwithstanding the naive ruse of disposing of the corpse that did not reckon with the indomitable capacity of the law to penetrate the inner recesses of the stratagem of the black- guard among human species”.
The findings of the trial Court and the Court of Appeal stated above being concurrent, the question that arises is what this further appellate Court would do with those findings. The answer stems from what this appellate Court would not do and that is that it is not the function of an appellate court to make findings of fact where this has been done by the trial Court as in the case at hand and to reopen issues of fact finally determined by the same trial Court. The duty of the appellate Court is well cut out for it and in the light of what has been effectively and properly done by the two Courts below, this court cannot disturb or interfere with those findings since there was no perversity in the reaching of the findings and conclusions nor a miscarriage of justice evident. I place reliance on the case of Olanrewaju v Governor of Oyo State & Ors (1992) 11/12 SCNJ 92; Egonu v Egonu (1978) 11 – 12 SC 111; Motunwase v Sorungbe (1988) 5 NWLR (Pt.92) 90.The Appellant’s main grouse with the findings of the two earlier Courts is that they anchored their decision on the eye witness account of PW5 upon which the appellant’s conviction was based. That stance was roundly attacked by the Respondent who stood on the position that the concurrent findings of fact of the two Courts based on the credibility of PW5’s evidence said the findings were unassailable.
Indeed, the evidence of PW5 as found by the two courts is unassailable and cannot be impugned because of the passage of time before the PW5 opened up with the eye witness account as the explanation proffered which has to do with the “Iyi Ani” oath he had had administered on him to keep quiet and the neutralisation needing be done before he could open up are easy to accept in line with what prevails in our rural communities in the local setting and beliefs. The situation is not watered down by the native doctor who neutralised the effect of the oath not called as witness by the prosecution as it was not obliged to, and his non appearance not whittling down the evidence proferred in the light of the feasible explanation on the delay. See Ime David Idok v State (2008) 13 NWLR (Pt.1104) 225. Also to be said is that the evidence of PW5 was not in isolation as it was backed by other pieces of evidence such as that of PW4 who had heard of the threat from the Appellant on the safety of the deceased, Maduneke. I have no difficulty in accepting the submission of learned counsel for the Respondent that there was nothing persuading the Court of Appeal to substitute the views of the trial Court with any other view or to disturb the earlier view which is the position I see for this Court. See Bamgboye v. University of Ilorin & Anor (1999) 5 SC (Pt.II) 72; Nwokoro v. Onwuma (1999) 9 SC 59; Coker v Oguntola & Ors (1956) 6 SC 132.
The Appellant had sought to water down the strength of the evidence of PW5 urging for its rejection in the absence of corroboration since PW5 was a relation of the deceased. That stand is not borne out of the record considering that in a lot of cases particularly murder the only eye witnesses are usually family members and it must be stated without equivocation that such situations of consanguinity without more would not lead to the witness being regarded as one with an interest to protect and incapable of stating the facts as witnessed or known. In the case at hand, PW5 gave an account with such clarity and straightforwardness as to how the Appellant and his co-travellers killed the deceased, planned on how to dispose of the body and effected same. Having witnessed all that transpired, they put PW5 on oath with death as the outcome if he disclosed. Therefore just as this Court had in the sister case of Nkebisi v. The State (2010) 5 NWLR (Pt.1188) 471 at 484 faced with similar contentions, I too discountenance the imputation of a biased, jaundiced evidence of PW5 as nothing before Court supports it.
I agree with the Court below in upholding what the trial Court did that the eye witness account of pW5 was enough to grant the conviction. The issue is resolved against the Appellant.
ISSUE NO.2:
Whether the Appellant can raise the issue of alibi without leave when the issue was abandoned at the trial court and was neither raised nor considered at the Court below,
Learned counsel for the appellant said the appellant had raised a clear alibi by stating that he was not at Ikpi on that day and stated where he was fishing and those with him till morning. That the burden to adduce evidence on the alibi was on the prosecution to establish that the alibi could not stand. He cited
Umani v State (2005) LACLR 67 at 77; Gachi & Ors v State (1965) NNLR 333; Yanor & Ors v State (1965) NMLR 337; Odidika v State (1977) 2 SC 21; Njovens & Ors v. State (1973) NMLR 331.
That even though the standard of proof of the alibi was on the balance of probabilities below proof beyond reasonable doubt and even then the prosecution still failed to dislodge the alibi. He cited Bozin v. The State (1998) 1 ACLR 1; Obiode v The State (1970) 1 All NLR 35 at 40.
That the failure of the prosecution to rebut the plea of alibi and in this instance the lapse of even investigating it is fatal to the case of the prosecution. He referred to R V. Brauniah 11 WACA 49 Ikono v State (1973) 5 SC 231 at 255; Okonji v State (1987) 1 NWLR (Pt.659) 82; R v. Nwaokafor & Ors 1944.
Learned Attorney General for the Respondent submitted that the appellant admitted being in Anaku at the material time of the offence and nothing to show he could not have gone to Ikpi fishing pond simply because he was at Ikwuke farm in the same Anaku at any time on the day of question. That the appellant only showed that he was in the same community, Anaku all through the day of the incident. That appellant had abandoned the purported alibi at the trial and had not called any witness to give evidence in support of the said alibi. He stated that no evidence whatsoever in proof of the said alibi was placed before the trial court by the appellant. That the appellant had a duty to lead evidence of the alibi and he did not do so. He cited Obakpolor v That State (1991) 1 SCNJ 91; Peter v State (1997) 3 NWLR (Pt.496).
Mr. Afuba of counsel for Respondent said if there was any lingering doubt as to whether or not the Appellant had abandoned the purported defence of alibi, such was conclusively resolved when the Appellant’s counsel addressed the court at the trial before judgment. That the trial judge rightly did not consider the purported defence of alibi since it was clearly abandoned. He cited Nwabueze v. The State (1988) 4 NWLR (Pt.86) 16; Jatau v Ahmed (2003) 1 SC (Pt.11) 118.
That since the matter of alibi was not raised in the Court of Appeal, it cannot be considered since no leave was requested and granted before such a fresh point can be canvassed in this Court. He cited Kate Enterprises Ltd v Daewoo Nig. Ltd (1985) 2 NWLR (Pt.5) 116.
The issue here has to do with the alibi raised by the Appellant. Appellant said he was not at Ikpi fishing pond, scene of crime rather that he was at Ikwuke farm, interestingly both places are within the same Anaku Community. Beyond this bare plea of alibi without particulars as to who was with him outside the scene of crime and at the relevant time. It is when an appellant had supplied details of who could vouch for his alibi that the prosecution would then have the burden to debunk the defence. In a situation such as we have where the Appellant has been pinned to the scene of crime, at the material time, the mere assertion of the alibi as he has put forward remains no more than a half hearted alibi in a bid to see if the court would buy it. The Appellant therefore is not entitled to have such an alibi get him an exculpation, he having not proved the assertion that he could not have been at the place of the crime at the time the crime was committed. I place reliance on Obakpolor v The State (1991) 1 SCNJ 91; Nwabueze v The State (1989) 4 NWLR (Pt.86) 16. From what transpired with the emptiness of the defence of alibi it is that the trial court considered it abandoned and did not waste its time making any reference to it. The Appellant did not see the need at the Court below for it to be a ground and thereafter an issue of the appeal thereat. The raising of the defence at this stage and without leave of court earlier sought and obtained clearly pushes the conclusion to be that the alibi was not backed by anything rather, it is an afterthought set about to test the water. Therefore, whether on the basis that being a fresh issue has not been granted leave to so canvass, the defence of alibi cannot be entertained and assuming it was well positioned with validity to be considered, there is nothing upon which it can be accepted as a viable defence. I rely on Jatau v. Ahmed (2003) 1 SC (Pt.11) 118; Kate Enterprises Limited v Daewoo Nigeria Limited (1985) 2 NWLR (Pt.5) 116.
The issue herein from the foregoing is resolved against the Appellant. The two issues resolved against the Appellant and the better articulated reasoning in the lead judgment, I too dismiss this appeal.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the benefit of reading in draft the judgment of my learned brother JOHN AFOLABI FABIYI, JSC just delivered. His Lordship has meticulously considered and ably resolved the issues in contention in this appeal. I agree entirely with the reasoning and conclusion that the appeal lacks merit and should be dismissed. I wish to add a few comments in support of the lead judgment.
The brief facts of the case are as follows: The present appellant, the deceased (Maduneke Enweonye) and six other accused persons all hailed from the Isiokwe, Umueri-Agu Anaku town in the then Oyi Local Government Area of Anambra State. There was a dispute over the ownership of Ikpi fish pond in Anaku between one Sunday, who claimed exclusive ownership and the rest of Umuereagu Isiokwe kindred who claimed communal ownership. The dispute was resolved in favour of the communal ownership of the Umuereagu Isiokwe kindred. The said kindred leased the pond to one Chief Phillip Ezeoba for five years. The Chief employed a farm manager called Vincent Okongwu. He also engaged Francis Obidike (the 1st accused at the trial court) as a security guard. At some point, Francis Obidike was removed as security guard and replaced with the deceased, Maduneke Emeronye. Francis was not happy with this turn of events. He went in the company of one Onwualu Ikenna to complain to the farm manager.
On 21/5/1994 the issue was raised at a meeting of the community which took place at the Town Hall. During the meeting 1s accused openly warned the deceased to stop going to the pond and threatened to kill him and do away with his corpse if he disobeyed. He was challenged for his utterances and asked to withdraw his threat. He refused to do so and stormed out of the venue accompanied by the other accused persons and some other persons, now at large, in tow. The 1st accused and his supporters reconvened at his house and herd a secret meeting. On 9/6/1994 when Vincent Okongwu, the farm manager took some food to the deceased at the fish pond he was nowhere to be found. In spite of a frantic search by the villagers he was never seen alive again. As a result of Police investigations into the incident, the appellant and six other accused persons were arrested and charged before the High Court of Anambra State sitting at Otuocha on a one count charge of murder contrary to Section 274 (1) of the Criminal Code Cap.36 Vol. 1, Laws of Anambra State of Nigeria 1996. The appellant was the 4th accused.
It is noteworthy that pW5, Godfrey Emengini, a relation of the deceased, gave an eyewitness account of how, on the night of 8/6/1994, the six accused persons and some others (including the 7th accused who was later discharged by the trial court on his defence of alibi) killed the deceased. However he did not report what he witnessed to anyone until more than two months later, after the accused persons had been arraigned before the Magistrate’s Court. He stated that he was unable to reveal what he knew earlier because the accused persons made him swear an oath to the effect that if he divulged what he knew he would be killed’ some time after this encounter he fell ill and was treated by a native doctor who was able to counteract the force of the oath he had taken and assured him that he would not die if he reported what he saw. This was what gave him the courage to speak up. The trial court, which had the opportunity of seeing and hearing him testify, found him to be a credible witness and was persuaded by the veracity of his testimony. His testimony played a significant role in the conviction of the appellant and his co-accused. At the conclusion of the trial the appellant and five of his co-accused were convicted and sentenced to death by hanging. As alluded to earlier, the 7th accused was given the benefit of the doubt on his defence of alibi and accordingly discharged and acquitted.
The appellant was dissatisfied with his conviction and sentence by the trial court and appealed against it to the Court of Appeal, Enugu Division. The Lower Court dismissed the appeal and affirmed the conviction and sentence imposed by the trial court. The appellant has therefore further appealed to this court. The appellant distilled a sole issue for determination in this appeal, to wit:
Whether the prosecution proved its case beyond reasonable doubt, upon a community reading of Sections 131, 132, 13, 136 and 140 of the Evidence Act, Laws of the Federation of Nigeria, 2011.
There are two significant issues in this appeal. The first is the fact that the body of the deceased (the corpus delicti) was never found. The second is the fact that the court relied quite heavily on the evidence of PW5 even though he is related to the deceased and faired to come forward with what he knew until almost two months after the incident.
In the case of Jua v. The State (2010) 4 NWLR (Pt.1184) 217 @ 258 F – H, this court, per Ogbuagu, JSC held thus:
“The law as regards the absence of the corpus delicti is that a court may still convict an accused person of murder even though the deceased’s body, cannot be found, provided that there is sufficient compelling circumstantial evidence to read to the inference that the man had been killed. See the cases of R. Vs Sata (1938) 4 WACA 14; R. Vs Onufrejeigyk (1955) 9 CAR 1; Adelakun Ayinde Vs The State (1972) 4 S.C. 147 @ 152; Edin vs The State (1972) 4 S.C. 160 @ 162. In other words, the fact of death, is provable by circumstantial evidence notwithstanding that neither the body nor any trace thereof, had been found and that the accused person, has made no confession of any participation in the crime. However, before the prisoner can be convicted, the fact of death should be proved by such circumstances as to render the commission of the crime certain and leave no ground for reasonable doubt. The circumstantial evidence therefore, should be so cogent and compelling as to convince a court or jury that on no rational hypothesis other than murder can the facts be accounted for. See Onufrejezyk (supra); The State V Nwakerendu (1973) 3 ECSLR (Pt.2) 75 (supra). ”
See also: Ogundipe & Ors v. The Queen (1954) 14 WACA 458; Edim v. The State (1972) 4 SC (Reprint) 141 @ 142 – 143; Babuga vs. The State (1996) 7 NWLR (Pt.460) 279 @ 296 B – C.In the instant case, the circumstantial evidence was that some days before the deceased vanished, his life had been publicly threatened by the 1st accused who was supported by the appellant and other accused persons when they all walked out of the Town Hall meeting upon his refusal to withdraw the threat. Furthermore, pw5 testified that on the night of 8/6/94 at about 9pm he was fishing at the Ikpi pond when he heard a loud noise coming from Ikpi saying “Anaku doo Isiokwe doo!” He stated that he recognized the voice as that of the deceased. On approaching the direction of the sound, he heard murmuring. He flashed his torchlight and saw all the accused persons, including the present appellant, the 7th accused who was later discharged, and some other persons. He named all those he saw. He noted that they were armed with guns, machete, rod and sticks. He was able to state which weapon each person carried. He testified that they made him swear to an oath of secrecy on “Iyi Ani” and promise not to reveal what he had seen to anyone otherwise he would die. He had no choice but to comply. Thereafter, he asked for the whereabouts of the deceased whose screams he had heard. He stated that the 1st accused, Francis Obidike pointed to him. He testified further:
“I flashed the torch light and saw Maneke lying on his back facing upwards with his hands spread out Maneke’s mouth was open. Blood was gushing out from ManekeS mouth, his nose and ears meaning that he had died. I asked them why they killed Maneke. They replied that Maneke refused to go out from Ikpi and that was why he was killed. Francis Obidike asked the others to decide what to do to the corpse. Oguejiofor Ilodigwe said they should bury him by the side of Ikpi. Francis Obidike told him that if they bury Maneke by the side of Ikpi the corpse will be easily located. …I heard Francis Obidike tell the others that they should take the corpse to Anambra River. Onwuaghalu Ikenwa told Francis Obidike that the decision was good but that unless they tie the corpse to something heavy it will float on the River.”
(See pages 94 – 96 of the record).
The duty of the prosecution in a criminal trial is to prove its case against the accused persons beyond reasonable doubt. In order to do so it must prove every ingredient of the offence beyond reasonable doubt. See: Yongo vs. C.O.P. (1992) 8 NWLR (Pt.257) 36; (1992) 4 SCNJ 113; Alor v. The State (1997) 4 NWLR (Pt.501) 511.
To secure a conviction for murder, the prosecution must prove the following:
a. That the deceased died;
b. That the death of the deceased resulted from the act of the accused person; and
c. That the act of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence.
See: Uwagboe v. The State (2008) 12 NWLR (Pt.1102) 621; Nwachukwu v. State (2002) FWLR (Pt.123) 312; Nweke v. State (2001) FWLR (Pt.40) 1595.The evidence of PW5 was positive, compelling and unshaken under cross-examination. He provided unequivocal evidence not only that the deceased had died but also that it was the appellant and his cohorts who killed him. It was contended on behalf of the appellant that the court ought not to have placed much weight on his evidence having regard to the fact that he is from the same family as the deceased. The mere fact that a witness is related to the victim of a crime is not a sufficient reason, without more, for the court to disregard his evidence. There must be evidence that the witness has a purpose of his own to serve by giving such testimony. See: Nkebisi vs The State (2010) 5 NWLR (Pt.1188) 471 @ 497 E – H, where this court rejected a similar submission in a sister appeal. See also: Ogunonzee vs. The State (1998) 5 NWLR (Pt.551) 521; Arehia & Anor v. The State (1982) 4 SC 78 @ 92, which were cited with approval in that case. what is important is that the witness is credible and his testimony is cogent enough to rule out the possibility of falsehood and bias.
The two lower courts were satisfied with his explanation as to why he did not come forward sooner with what he knew. The reason given is credible when considered in right of the beliefs of certain members of the society on the efficacy of some traditional practices, such as oath taking.In the instant case the learned trial Judge held at page 169 lines 1 – 9 and page 172 lines g – 14 of the record:
‘Although PW5 is from the same Umuakuma family of Isiokwe as the deceased, after watching him testify, I am not in any doubt that he had no purpose of his own to serve in giving his evidence. I therefore hold that the evidence of PW5 is credible. The prosecution witnesses and the accused persons are well known to one another. They all, excepting the policemen, come from the same Isiokwe village in Anaku community.
… In the instant case the eye witness account given by PW5 was not shaken by cross-examination. The accused persons were seen with the body of the deceased gushing out blood at night and the deceased eventually died and the body was not found. The court is bound to hold that they (sic) guilt of the six accused persons had been proved beyond reasonable doubt.”
In upholding the judgment of the trial court, particularly with regard to the evidence of PW5, the lower court, per Olagunju, JCA, held at page 306 lines 11 – 17, 22 – 24 and 28 – 38 of the record:
“Lastly, the learned Deputy Director of public prosecutions has raised the question of failure to prove the cause of death of Madueke Enweonye as a result of failure to find his corpse. I agree with his submission that failure to prove either is not fatal to a convidion for murder. It has been held that where a person is attacked brutally in the process of which he sustained injuries and died either immediately or shortly afterwards it is permissible to infer that the wound inflicted on him caused the death.
“…On the failure to find the corpus delicti the submission that failure to find the deceased’s corpse is not fatal to conviction is correct… The description by the PW5 of the injuries he observed on the body of Madueke Enweonye white he was held captive by the appellants justifies the inference that the appellants caused his death and disposed of the body in a hole-and-corner way. Like the facts of the disposal of the corpse in R v. Onufrejczyk, supra, at page 252, there is no doubt that Madueke Enweonye has completely gone from the ken of mankind. With the evidence of pW5 who saw him savagely battered while in the custody of the appellants on no rational hypothesis other than murder by the appellants can his mysterious disappearance from the midst of the loved ones be accounted for. Nothing clearly strengthens that inference than the threat to his life by the first appellant.”
As to the basis of the conviction of the 2nd – 6th accused persons, of whom the appellant herein was the 4th accused, the lower court had this to say:
“…Their conviction like that of the first appellant was based on a common object. They were identified by the PW5, as present at the scene of crime where the witness saw the lifeless body of the deceased mortally wounded. The witness described the weapon held by each of them present at the scene. The law is that once attack on a victim is made by two or more persons acting in concert and in furtherance of their common intention each and every one of them is liable for consequences of the act In such a case ‘it does not matter which of the accused did what’: Atagba v. R. (1950) 19 NLR 129, 131. See further The Queen v. Bello (1962) 1 ALL NLR (Part IV) 613, 635; Alabi v. The Queen (1959) WRNLR 197; Adekunle v. The State (supra) at pages 411 – 412; and Ekpulor v. The State (1990) 12 SCNJ 71, 76.”(See page 307 lines 10 – 20 of the record)
The concurrent findings of the two lower courts, to the effect that the prosecution proved its case against the six accused persons, including the appellant herein, beyond reasonable doubt, are unassailable. In the circumstances, not having been shown to be perverse, there is no justification for interference by this court. For these and the fuller reasons comprehensively adumbrated in the lead judgment of my learned brother, Fabiyi, JSC, I also dismiss the appeal for being devoid of merit. The judgment of the lower court, which affirmed the conviction and sentence of the appellant by the trial court, is hereby affirmed.
JOHN INYANG OKORO, J.S.C.: I have had the privilege of reading in draft the lead judgment of my learned brother, john Afolabi Fabiyi, JSC just delivered with which I am in complete agreement that this appeal is devoid of any scintilla of merit and ought to be dismissed. My Lord has very meticulously and quite admirably dealt with all the salient issues submitted for the determination of this appeal and I must confess, I have nothing new to add except to say a few words in support of the judgment only.
The facts of this case disclose that all the accused persons including the appellant and the deceased belonged to the same Umuereagu Isiokwe kindred of Anaku community in Oyi Local Government Area of Anambra State. The prosecution led evidence to short that there was a dispute over the ownership of Ikpi fish pond in Anaku between one Sunday who claimed exclusive ownership and the rest Umuereagu Isiokwe kindred who claimed conununal ownership. As it were, the dispute was resolved in favour of the kindred which then leased the pond to one Chief Philip Ezeoba for five years. The 1st accused in this case was employed to guard the fish pond. After a while, the 1st accused was replaced with the deceased. The 1st accused complained to the farm manager about his replacement.
At a general meeting of the community, the issue of the fish pond was raised. The 1st accused threatened to kill the deceased if he went back to the fish pond. All entreaties for him to rescind his decision fell on deaf ears. Rather, he stormed out of the meeting in company of the other accused persons and reconvened at the 1st accused’s house for an invidious meeting.
On 9/6/94, the farm manager went to the fish pond to serve food to the deceased, alas he was nowhere to be found. A search party by the villagers did not yield any positive result. Investigation by the police revealed that it was the appellant herein and six others who killed the deceased. PW5 who was an eye witness to the murder gave a graphic and detailed account of the gruesome killing of the deceased. Although his statement came three months after the act because of the oath administered on him by the accused persons, the learned trial Judge believed his testimony and convicted the accused persons except the 7th accused who was acquitted because of his defence of alibi for which the doubt was resolved in his favour. The appeal against the conviction of the 1st – 6th accused persons including the appellant was dismissed by the Court of Appeal.
The sole issue by the appellant was whether the prosecution proved its case beyond reasonable doubt upon the community reading of sections 131, 132, 135, 136 and 140 the Evidence act, Laws of the Federation of Nigeria 2011.
It is now well settled that in all criminal proceedings, the onus is always on the prosecution to establish the guilt of the accused beyond reasonable doubt. The prosecution will readily achieve this task by ensuring that all the necessary and vital ingredient of the charge are proved by evidence. See Yongo v. Cop (1992) 4 SCNJ 113, Ogundiyan v. The State (1991) 3 NWLR (Pt.181) 519, Alonge V. IGP (1959) 4 FSC 203,
Under our system of criminal justice, an accused person is presumed innocent until he is proved guilty. There is therefore no question of an accused proving his innocence before a Law Court. It has to be noted that throughout the duration of a trial an accused person may not utter a word, he is not bound to say anything. The duty is on the prosecution to prove the charge against an accused person beyond reasonable doubt. See Williams V The State (1992) 10 SCNJ 74.
In Sunday Omini V The State (1999) 12 NWLR (Pt.630) 168, this Court held that to convict a person charged with murder under section 319 of the Criminal Code, the prosecution must prove beyond reasonable doubt the following:
(a) the death of a human being,
(b) that it was caused by the act of the accused,
(c) that the act or acts were done with the intention of causing death or
(d) the accused knew that death would be the probable consequence of his act or acts.
In the instant appeal, both the trial court and the Court of Appeal found that it was the appellant with five others who killed the deceased. Now, weighing this finding by the two courts alluded to above with the raw facts of this case, I have no reason to disturb this finding. This is so because the Supreme Court is not in the habit of disturbing the concurrent finding of the two courts below unless it is found to be perverse.
Part of the evidence of PW5 which, with all diligent search, was not successfully challenged is very instructive here.
He testified on pages 95 to 96 as follows:
“Oguejiofor Ilodigwe said they would bury him by the Side of Ikpi. Francis Obidike told him that if they bury Maduneke by the side of Ikpi the corpse will be easily located. Francis Obidike asked me what I was waiting for. He said I should go since I had taken the oath for them. I started going home slowly. I heard
Francis Obidike tell the others that they should take the corpse to Anambra River. Onwughalu Ikenna told Francis Obidike that the decision was good but that unless they tie the corpse to something heavy it will float on the river.”
Based on the above positive and direct evidence, the trial court which had opportunity of seeing the witness testify, believed him completely. The lower court also accepted it as the truth. As I said earlier, this court usually approaches such findings from the premises that, following from the fact that making of findings on primary facts is a matter preeminently within the province of the court of trial which has the opportunity of seeing and hearing the witnesses testify, a judge’s conclusion on the facts is presumed to be correct. So, that presumption must be displaced by the person seeking to upset the judgment on facts. There is no such attempt here. See Ojo Ogbemudia Ebolor V Felicia Osayande (1992) 7 SCNJ 217, Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718, Ukpe Ibodo & Ors v. Iguisi Enarofia (1980) 5-7 SC 42. Bamboye V University of Ilorin & Anor (1999) 6 SC (Pt 11) 72.
Assuming that it was only the evidence of PW5 which the Court used to convict the appellant, the conviction will still be proper. In Ime David Idiok V The State (2008) 13 NWLR (Pt 1104) 225, (2008) 34 NSCQR (Pt.11) 827, this Court held that a Court is perfectly entitled to convict on the evidence of one witness if his evidence is credible, admissible and it is believed and accepted by the trial court. A lone witness, though not the case here, if believed, can establish the usually’ contentious issue as to who killed the deceased in a murder: case. See also State V Igho (1875) 5 SC, Ali V State (1988) NWLR (Pt 68) 1, State V Ajie (2000) 11 NWLR (Pt 678) 434.
In this case, the evidence of PW5 was very cogent, direct and was never shaken in any material particular. I have a firm conviction that both the trial court and the Court of Appeal were right to accept and act on it.
The appellant had made futile efforts to impugn the evidence of PW5 having come three months after the killing of the deceased. For me, the explanation that he was afraid of the oath administered to him by the accused persons is quite satisfactory. The prosecution, in my view proved this case against the appellant and his co-travellers in crime beyond reasonable doubt.
Based on the above reasons and the further ones contained in the illuminating judgment of my learned brother, John Afolabi Fabiyi, JSC, I agree that this appeal has no merit at all. I also dismiss it. I uphold the judgment of the court below.
Appearances
O. N. Ikeyi (with him F. U. Oraekeyi, Esq.) For Appellant
AND
A. Afuba, Hon. Attorney-General Anambra State (with him C. N. Nwoye, ACSC) For Respondent
