OBINNA OSUOHA v. THE STATE
(2010)LCN/3878(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of June, 2010
CA/OW/150/2009
RATIO
EVIDENCE: CONSEQUENCE OF CONTRADICTION IN EVIDENCE
Indeed, contradiction between two pieces of evidence goes rather to the essentiality of something being or not being at the same time whereas minor discrepancies depend rather on the person’s astuteness and capacity for observing meticulous details. See, Agbo vs. State (2006) All FWLR (Pt. 309) 1380 at pp. 1397 – 1399; Ogoala vs. The State (1992) NWLR (Pt. 175) 509 at 525; Gabriel vs. The State (1989) NWLR (Pt. 122) 457 at 468 and Duru vs. The State (1993) NWLR (Pt. 281) at 283. PER MOJEED ADEKUNLE OWOADE, J.C.A.
CRIMINAL LAW: WHETHER LIE CAN ESTABLISH GUILT
The law is well settled that the mere fact that a person has lied is not proof that he is guilty. For though, a man may lie because he is guilty he may just as well lie because he is stupid or afraid or both and whether he is guilty or not.
Nnamani, JSC, stated the law clearly and fully in Omogodo vs. The State (1981) 12 NSCC 119 at 128, where he observed and held:
“It (the Robbery and Firearms Tribunal) was also of the view that the catalogue of lies presented by the accused coupled with his betrayed demeanour point to only one conclusion – guilt. But having regard to the circumstances of this case, these conflicts and discrepancies in the appellant’s evidence by themselves are not enough, in my view, to establish his guilt with the requisite degree of certainty. As was conceded by the Tribunal, a person may lie though innocent, such lies may be as a result of fear or stupidity or indeed anxiety on the part of the accused to save himself. The fact that an accused person has told lies has never been accepted as proof of his guilt.” PER MOJEED ADEKUNLE OWOADE, J.C.A.
EVIDENCE: WHAT CONSTITUTES CIRCUMSTANTIAL EVIDENCE
Circumstantial evidence is proof of fact by inference from the facts proved. This means that where direct testimony of eye witness is not available, the court is permitted to infer from the facts proved, the evidence of others that may be logically inferred.
However, in Lori & Anor. vs. The State (1980) 8 – 11 SC 86, the Supreme Court, per Nnamani, JSC, held that:
“……… circumstantial evidence sufficient to support a conviction in a criminal trial especially murder, must be cogent, complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the prisoner or no one else is the murderer. The fact must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.” PER MOJEED ADEKUNLE OWOADE, J.C.A.
CRIMINAL LAW: MURDER; WHAT SHOULD THE PROSECUTION PROVE IN A CHARGE OF MURDER
In a charge of murder, it is not enough to show that the act of the accused person could have caused the death of the deceased. The Prosecution has the onus to prove that it did in fact cause the death, and if the evidence does not prove that he did, then the failure of the defence to suggest some other causes does not confirm the case of the Prosecution. See Ahmed vs. The State (supra) at 641 – 642. PER MOJEED ADEKUNLE OWOADE, J.C.A.
CRIMINAL LAW: DOCTRINE OF LAST SEEN
The doctrine of last seen has evolved in our criminal jurisprudence, consistent with what obtains in other jurisdictions and is to the effect that it is the duty of an accused person who last saw the deceased alive to give an explanation on how the deceased met his death. In the absence of an explanation, the court is entitled to infer in the face of overwhelming circumstantial evidence that the accused person killed the deceased. See GODWIN IGABELE v. THE STATE (2006) 2 SCNJ 124, BASSEY AKPAN ARCHIBONG v. THE STATE (2006) 5 SCNJ 202. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
OBINNA OSUOHA Appellant(s)
AND
THE STATE Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A.(Delivering the Leading Judgment): This is an appeal from the judgment of C. I. Ohakwe, J., delivered on 26th day of June, 2009, in the Owerri Division of the High Court of Imo State wherein the appellant was found guilty of the offence of murder contrary to section 319(1) of the Criminal Code Cap 30 Vol. II Laws of Eastern Nigeria, 1963, as applicable to Imo State of Nigeria.
The prosecution alleged that the appellant and other persons at large between the 15th – 17th September, 2004, at Ihiagwa within the Federal University of Technology Owerri (F.U.T.O.) University area in the Owerri Judicial Division murdered one Chima Chinaka. The Appellant pleaded not guilty to the charge. The prosecution called four (4) witnesses to prove the charge. They are: PW1, Donatus Chinaka, the father of the deceased. PW2, Emmanuel Chigozie Chinaka, the senior brother of the deceased. PW3, John Peter an ASP attached to the State C.I.D. Owerri and PW4, Dr. Rapheal Egejuru, a Medical Practitioner and a Pathologist at the Medical Centre, Owerri.
In defence, the appellant gave evidence as DW1 and his father Richard Osuoha gave evidence as DW 2. The facts of the case are that the Appellant and the deceased are old time friends. The appellant and the deceased went out to the knowledge of their different parents purportedly to attend a party in company of others at the Concorde Hotel, Owerri. From the appellant’s version, the company was diverted at gun point with some of the other boys in the car with them, namely – Sly, DVD, Bola and Smokey and the company was further diverted into a bush, where they started beating them. The appellant came to town in the morning of 17th September, 2004, in the same taxi with “Smokey” one of the boys that beat them up in the bush and he the appellant then took another taxi to his house. Meanwhile, when the deceased did not return home from the “party”, PW1, the deceased father sent his son, PW2 to the appellant’s house to inquire on the whereabout of the deceased. The appellant assured PW1 and PW2 that the deceased went for a test at the Imo State University and that he would soon return.
Later, when the deceased had not been found or returned, PW1 called in the police from Umuguma who arrested the appellant. At the time of arrest of the appellant by the police, from the Prosecution’s account, the appellant brought out things from his pockets and handed them over to his father. Amongst the things the appellant handed over to his father was a Motorola T. 190 handset which belonged to the deceased and was instantly identified as such as PW2 dialed the number in the handset and it rang in the hands of DW2. PW4 stated that the cause of death of the deceased was acute cardio-respiratory failure consequent upon aspiration of stomach content into the respiratory tract. The appellant denied involvement in the killing of the deceased and also denied being a member of a secret cult but rather that he also sustained injuries from the beatings. DW2 denied receiving the deceased’s handset from the appellant at the time of his arrest and that he never handed over any handset to the police.
In the concluding portion of his judgment at page 136 of the printed record, the learned trial Judge held thus:
“……… There is evidence that there were abrasions on the left arm front aspect of the chest, the abdomen and the two knee regions. That the body must have been dragged. The multiple wounds seen on the body of the deceased were so grievous in nature to infer an intention to kill the deceased. A person is presumed to intend the natural consequences of his act. There was a common intention by members of the 2 – 2 secret cult confraternity numbering over 12 persons who include the persons known and called by the accused person as Sly, Smoky, Devine or DVD, Bola, the accused person and one Christogonus Nnebedum (who escaped from the court hall during proceedings) to initiate people into their secret cult with the use of offensive weapons on their members and in the process murdered the deceased. They know that death was a probable consequence of the prosecution of such unlawful purpose. The accused person came into the warm embrace of Section 8 of the Criminal Code ………………………………………………………
……………………………………………………..
From the totality of the evidence before me, I hold that the prosecution has proved the charge of murder against the accused person. I find the accused person guilty of the offence of murder.”
Dissatisfied with this judgment, the appellant filed a Notice of Appeal containing 11 grounds of appeal before this court on 12th August, 2009.
Appellant’s brief of argument dated 5/11/09 and filed on 30/11/09 was deemed filed on 16/2/10. Respondent’s brief of argument dated and filed on 16/4/10 was deemed filed on 19/4/10. Learned counsel for the appellant nominated the following issues for determination.
“1. Whether the trial court was right in the conclusion which it reached against the appellant on the basis of Exhibit ‘C’ the handset (Grounds 3 and 4).
2. Whether the trial court was right in relying and acting upon the Police Investigation Report Exhibit ‘B’ against the appellant? (Ground 10)
3. Whether the trial court was right when it held that the Prosecution proved the offence of murder against the appellant? (Grounds 1, 2, 5, 6, 7, 8, 9 and 11).”
The learned Director of Public Prosecutions, Imo State for the Respondent adopted the three (3) issues formulated by the Appellant’s counsel.
On Issue No. 1, learned counsel for the appellant referred to page 129 (134) of the record, where the learned trial Judge summarized as follows:
“The PW2 stated that he dialled the deceased number of his handset and it rang while the accused person was still in possession of the handset. That when he was to be arrested, he brought out the handset and gave it to his father. That it was the father who handed Exhibit ‘C’ to the Police. I believe that Exhibit ‘C’ was in possession of the accused person after the death of the deceased. The PW2 even dialled the number of the GSM and it rang while it was in possession of the accused person who then gave the GSM handset Exhibit ‘C’ to his father. This evidence was not denied.”
Learned counsel for the appellant submitted that the above conclusion is not a valid deduction or the reasonable induction from the evidence on record. That Exhibit ‘C’ was tendered at the trial through the PW3 who confessed that he is not the direct IPO on the case. The direct IPO was one CPL Mbansa Adebiyo who never testified at the trial. That, PW3 testified that the Police at Umuguma arrested the appellant and handed him over to them (the PW3 and his team). And that, no evidence was received at the trial from the Police at Umuguma. Learned counsel for the appellant submitted that PW3 testified at page 77(78) of the record that the hand set Exhibit ‘C’ was brought by the father of the appellant because the appellant was already in Police detention and that the recovery of Exhibit ‘C’ was never reflected in Exhibit ‘B’ (even if Exhibit ‘B’ were to be admissible in evidence).
The evidence of the DW2 (the father of the appellant) said appellant’s counsel is that he only saw the appellant in Police custody at the State C.I. D Owerri on 18th September 2004. Learned counsel to the appellant submitted that, that piece of evidence by DW2 was not challenged or contradicted and that the duty of the court is to accept and act on such uncontradicted evidence. On this, he relied on the cases of S.P.D.C.N. vs. Edamkue (2009) 14 NWLR (Pt.1160) 1 at 41, Omoregbee vs. Lawani (1980) Fasoro vs. Beyioku & Ors. (1988) 2 NWLR (Pt. 76) 263 at 271, Aondoakaa vs. Ajo (1999) 5 NWLR) (Pt. 602) 206 at 222, Oforlete vs. The State (2000) 12 NWLR (Pt. 681) 415 at 436 and Gaji vs. Paye (2003) 8 NWLR (Pt. 823) 583 at 605.
Learned counsel for the appellant submitted that the natural deduction from the evidence of the PW3 and the PW2 is that Exhibit ‘C’ was never recovered at the scene of arrest of the appellant. This, counsel said is the only valid deduction because if Exhibit ‘C’ had been recovered from the scene and at the same time as the arrest of the appellant then the father of the appellant (DW2) could not have handed it over to the team of the PW3 (without any explanation from the prosecution as to how it moved from the Police at Umuguma back to the DW2).
Learned counsel for the appellant submitted that the PW1 testified that the father of the appellant – DW2 voluntarily surrendered the handset (Exhibit ‘C’ to the Police from Umuguma). But the PW2 testified that the DW2 resisted when the Police wanted to recover the handset from him. That, the PW3 testified that the DW2 “brought” the handset to the Police. That, no identification of Exhibit ‘C’ was demonstrated at the trial and that no call was made to Exhibit ‘C’ at the trial with the number which the PW2 ascribed to it.
Also, said appellant’s counsel, the PW2 testified that the Motorola C 190 Emo handset is “Ash/White in colour. On his own part the PW3 testified (at page 79) that the handset Exhibit “C” is “white and light brown but not black”. That the PW2 did not give the same account of Exhibit “C” in his extra judicial statement Exhibit “A” as the account which he gave at the trial.
Learned counsel for the appellant noted that the learned trial Judge presented a graphic sequence of events at page 134 of the record, but that DW2 testified that:
(i) “I did not hand any handset to the Police”.
(ii) “I did not see any handset” (pages 88 – 89)
(iii) “I saw my son at the Police Station after the death of the deceased ……. It was the State C.I.D. I saw them.”
On this the learned SAN for the appellant relied on the case of Olorunfemi vs. N.E.B. Ltd. (2003) 5 NWLR (Pt. 812) 1 at 25 and submitted that the conclusion by the trial court that the evidence was not denied is perverse; being contrary to the printed record of the same court.
Learned senior counsel to the appellant further submitted that the material contradiction in the sequence of events between the PW1, PW2 and PW3 on Exhibit “C” as well as the material contradiction between the conclusion drawn by the trial court and the evidence on record have been demonstrated.
Learned senior counsel for the appellant then relied on the cases of Morka vs. The State (1998) 2 NWLR (Pt. 537) 294 at 302, Onubogu vs. State (1974) NSCC Vol. 9 Page 358 at 366, Asuguo Williams vs. The State (1975) NSCC 398 at 402, Opayemi vs. The State (1985) 2 NWLR (Pt. 5) 101 at 108 – 109 Nwankwo vs. The State (1990) 2 NWLR (Pt. 134) 627 at 636 Okonkwo vs. The State (1998) 8 NWLR (Pt. 561) 210 at 244 and Buhari vs. INEC (2008) 19 NWLR (Pt. 1120) 246 at 409 – 413, first to emphasize the duty of the court not to accept unreliable evidence and secondly to demonstrate that the conclusion drawn by the trial court on the circumstances surrounding Exhibit “C” did not meet the standard of evaluation of evidence whether in civil proceedings or in a criminal trial.
The trial court, said Appellant’s counsel had a duty to scrutinize the evidence of the prosecution and to give the appellant the benefit of every doubt on any material fact because the burden permanently rests on the prosecution to prove the charge. And that the trial court did not evaluate the evidence of the DW2 which told in favour of the Appellant.
On the above point, learned senior counsel for the Appellant relied on the cases of ALMU vs. The State (2009) NWLR (Pt. 1148) 31 at 50, Okonkwo vs. The State (supra) of 244 and Onuchukwu vs. The State (1998) 4 NWLR (Pt.547) 579 at 588.
Appellant’s counsel then submitted that the invalid deduction which the trial court made against the Appellant on this very material point or fact in issue influenced the final decision of the court materially as there is no way of determining what the final verdict of the court would have been if it did not make that invalid and wrong deduction against the Appellant.
Also, that the trial court had a duty to afford the Appellant the benefit of the uncontradicted evidence of DW2 on this point unless the falsehood of that evidence is otherwise established.
Finally, on Issue No. 1, learned counsel for the appellant relied on the cases of Ifejirika vs. The State (1999) 3 NWLR (Pt. 593) 59 at 76 Emeka vs. The State (1998) 7 NWLR (Pt. 559) 556 at 584 and Onuoha vs. The State (1989) 2 NWLR (Pt. 101) 23 at 35 on how credibility and veracity are to be ascribed to evidence and whether the mere use of the world “I believe” precludes the findings of a trial court from being set aside by an appellate court.
On Issue No. 1 learned counsel to the respondent submitted that the conclusions made by the learned trial Judge against the appellant on the basis of Exhibit ‘C’ the handset were correct, apt and not perverse.
Respondent’s counsel submitted that Exhibit “C” was tendered without objection by PW3 who was a member of the team of Police Officers detailed to investigate the case. Counsel then went through the pieces of evidence which accounted for the conclusions of the learned trial Judge at page 133 (134) of the printed record.
First, that at page 77 lines 10 – 15 of the record, PW3 stated:
“In the course of investigation, we recovered a Motorola handset from the accused person. It was brought by the father of the accused person because the accused person was already in police detention. The Motorola handset belonged to the deceased.”
Second, that at the same page 77 lines 10 – 15, PW3 further stated:
“The PW2 confirmed that the handset belonged to the deceased. The handset was registered with the Exhibit keeper.”
Third, that the evidence of PW1 at page 70 lines 25 – 30 of the record is –
“I dispatched my son to go to Obinna place while I went and brought four policemen to Obinna. On seeing us he attempted to run away and he was stopped and arrested by the police. It was around 12 noon on the 18th September, 2004. On being arrested, he pulled out a handset from his pocket and gave it to his father Richard Osuoha.”
Fourth, that at page 75 lines 6 – 13, PW2 stated thus:
“The next morning being 18th September, 2004, my dad decided to call in the police when police came, myself, may dad and the police went to the house of the accused person. He was arrested while he was being arrested, he brought out a wallet, some papers and a GSM handset and handed it over to his father. Immediately I identified the handset as my late junior brother’s handset. I called the number and it rang. The police wanted to collect the handset from the accused father but the father resisted him. The handset is a Motorola C 190 Emo – Ash/White in colour.”
Fifth, that in cross-examination, PW2 at page 75 lines 19 – 24 stated thus:
“What I stated in Exhibit ‘A’ is what I know about this case ………. I made a call with my said late junior brother’s phone.”
Learned counsel for the respondent submitted that the above pieces of evidence which the learned trial Judge evaluated, assessed and accepted as proved facts showed that the handset was recovered from the appellant at the time of arrest. That the evidence was not contradicted and are not perverse. And that even if the handset was recovered from the DW2, evidence showed that Exhibit ‘C’ was in possession of the DW1 at all times materials to the death and search of the deceased.
Respondent’s counsel further submitted that the evidence of PW2 and PW3 about the colour of the handset are not contradictory as it is not disputed whether or not a handset was recovered from the appellant at the time of his arrest. Its identification was not in issue having been tendered without objection whether the call made by PW2 with the said handset while in possession of the appellant was true or not. Respondent’s counsel said it is not the case of the appellant that the handset said to be that of the deceased belonged to the accused. And, relying on the case of Awopejo vs. The State (2002) FWLR (Pt. 87) 772, that evidence of colour of the handset even if contradictory which is not conceded is minor discrepancy and not material and fundamental to the issue before the court.
Learned counsel for the respondent submitted that the testimony of the DW2 that (i) “I did not see any handset” at page 88 line 12 of the record. (ii) “I did not hand any handset to the police” at page 88 lines 11 – 12. (iii) “I saw my son at the Police Station after the death of the deceased ……. It was at the State C. I. D. I saw them” at page 88 of the printed record were considered by the learned trial Judge, evaluated, assessed with other evidence on record and disbelieved.
Respondent’s counsel submitted that it was correct in law for the learned trial Judge not to ascribe any probative value to the evidence of DW2 and that the inferences and conclusions made from the testimony of DW2 are correct and not perverse.
Finally, on Issue No. 1 respondent’s counsel referred to the cases of Anthony Isibor vs. The State (2001) FWLR (Pt. 78) 1077 at 1101; Efe vs The State (1976) 11 SC 75; Adi vs. The Queen (2007) 5 ACLR 597 at 600; Morufu Bolanle vs. The State 40 NSCQR 208 at 217 and Woluchem & Ors. vs. Chief Gudi & Ors. (1981) 5 SC 291, first to show that the credibility of witnesses is a matter within the province of a trial Judge and secondly, that it is not the function of an appellate court to re-appraise the evaluation of evidence of the lower court in order to come to a different conclusion.
In deciding Issue No. 1, there is no gainsaying that there are discrepancies relating to the astuteness and capacity of the PW1 and PW2 for observing and narrating meticulous details and also between them (PW1 and PW2) and PW3 as to accurate narration of the sequence of events surrounding the recovery of Exhibit ‘C’ the deceased handset from the hands of the appellant. What would not be right in the circumstances is to allow the learned counsel for the appellant to elevate the noticeable discrepancies in the evidence of PW1, PW2 and PW3 as to the recovery of the handset Exhibit ‘C’ into vital and material contradiction in the case of the prosecution. Indeed, contradiction between two pieces of evidence goes rather to the essentiality of something being or not being at the same time whereas minor discrepancies depend rather on the person’s astuteness and capacity for observing meticulous details. See, Agbo vs. State (2006) All FWLR (Pt. 309) 1380 at pp. 1397 – 1399; Ogoala vs. The State (1992) NWLR (Pt. 175) 509 at 525; Gabriel vs. The State (1989) NWLR (Pt. 122) 457 at 468 and Duru vs. The State (1993) NWLR (Pt. 281) at 283. It should also be stressed that the most important point in Issue No. 1 is not the discrepancies in the testimonies of the Prosecution witnesses but the further allegation by the learned counsel to the appellant that the conclusion of the learned trial Judge on the evidence on the recovery of Exhibit ‘C’ the handset revealed that the learned trial Judge did not in fact assess or evaluate the evidence of the defence on the subject matter before coming to the conclusion at page 134 that “This evidence was not denied”.
First, on the face of it, the use of the phrase “This evidence was not denied” when in fact the DW2 materially contradicted the evidence of the Prosecution witnesses by a complete denial of the circumstances or events narrated by the prosecution witnesses shows a lack of assessment or evaluation of the defence evidence on this matter.
A better approach by the learned trial Judge would have been to draw out a conclusion, or belief based on the acceptance of the pieces of evidence offered by the prosecution as against those offered by the defence on the subject matter. This is because, the defence of an accused person even if it is naughty, unreasonable or unfounded must nevertheless be considered by a court of law.
Now, going through the Judgment of the lower court contained in pages 126 – 136 of the printed record, apart from pages 129 – 130, where the learned trial Judge reviewed the evidence of DW2, the only place where an evaluation or assessment of the evidence relating to Exhibit ‘C’ was considered or evaluated was the summary or conclusion referred to by the learned senior counsel for the appellant at page 134 of the printed record.
The picture is thus as follows: At pages 129 – 130, in reviewing the evidence of DW2, the learned trial Judge noted:
“The DW2 was Richard Osuoha, father of the accused person. He said he knew the deceased on the day he came to look for his son – the accused person. He said it is not true to say he was present when the police came and arrested his son and that his son brought out the handset of the deceased and gave it to him. That he did not hand over any handset to the police. That he did not make any statement to the police over this incident. That he saw the accused person at the Police Station after the death of the deceased. That the accused person had matchet cuts and bruises all over his body. Under cross-examination, he stated that the accused person told him he was going to Cyber Cafe. That it was later after the arrest of the accused person that he discovered they were taken to F. U. T. O. to initiate them inside the bush. He further stated that he asked the accused person the whereabout of the person he went out with and he said he had not come back.”
I carefully perused the Judgment of the trial court in this case and could not find any other place where reference was made to the testimony of DW2 on Exhibit ‘C’, the handset until the conclusion at page 134 that:
“Furthermore, it is in the evidence of PW1, PW2 that the accused person was in possession of Exhibit ‘C’, the GSM handset of the deceased at the time of (sic) the police came to arrest him. The PW2 stated that he dialled the deceased number of his handset and it rang while the deceased person was still in possession of the handset. That when he was to be arrested, he brought out the handset and gave it to his father. That it was the father who handed Exhibit ‘C’ to the police. I believe that Exhibit ‘C’ was in possession of the accused person after the death of the deceased. The PW2 even dialled the number of the GSM and it rang while it was in possession of the accused person who then gave the GSM handset Exhibit ‘C’ to his father. This evidence was not denied.”
In the circumstances of the above conclusion, I do not think the use of the word “I believe” by the learned trial Judge could constitute any magic wand outside the duty of the learned trial Judge to properly evaluate the evidence as presented by the parties on this subject matter. See Morka vs. The State (1998) 2 NWLR (Pt. 537) 249 at 304; Ifejirika vs. The State (1999) 3 NWLR (Pt. 593) 59 at 76 – 77; Emeka vs. The State (1998) 7 NWLR (Pt. 559) 556 at 584 and Onuoha vs. The State (1989) 2 NWLR (Pt. 101) 23 at 25.
In the case of Yahaya Farouk Chedi vs. A-G, Federation (2006) 13 NWLR (Pt. 997) 308 at 325 – 326, I. T. Mohammed, JCA, (as he then was) had this to say on the duty of a trial Judge to properly evaluate evidence.
“A trial court, no doubt, is a court of law and facts. It has no other sources of generating its decision except from the solid facts established before it and from the law governing the subject matter of litigation before it. It is its primary role therefore to even handedly evaluate the evidence placed before it by the parties not only through witnesses but including evidence by affidavits. A trial court, in other words, has the primary duty to fully and consciously consider the totality of the evidence proffered by all the parties before it in whatever way, ascribe probative value to it and put it on an imaginary scale of justice in order to determine the party in whose favour the balance tilts.”
And at page 326:
“It is trite law in civil and criminal proceedings that where there is failure by a trial court to properly appraise the evidence placed before it, the result is that whatever findings and conclusions arrived at by that trial court would be perverse. It is on this premise that the Appeal Court finds itself in the inescapable position of rendering the duty omitted to be done or which was wrongly done by the trial court ……..”
The learned senior counsel for the Appellant was not wrong in relation to this case to have said that the invalid deduction which the trial court made against the Appellant on this very material point of the recovery of Exhibit ‘C’ influenced the final decision of the court very materially. And that there is no way of determining what the final verdict of the court would have been if it did not make that invalid and wrong deduction against the appellant.
In the instant case, the trial court had a duty to scrutinize the evidence of the prosecution in relation to Exhibit ‘C’ and to give the appellant the benefit of every doubt on any material fact because the burden permanently rests on the prosecution to prove the charge. The trial court did not evaluate the evidence of the DW2 which told in favour of the Appellant. See ALMU vs. The State. (2009) NWLR (Pt. 1148) 31 at 50 Onuchukwu vs. The State (1990) 4 NWLR (Pt. 547) 579 at 588.
Issue No. 1 is resolved in favour of the Appellant.
On Issue No. 2 Learned senior counsel for the Appellant submitted that the author of the Police Investigation Report – Exhibit ‘B’ is one W.O. SALAU ACP (Assistant COMMR of Police) State C. I. D. Owerri did not investigate the case and never testified in court. Exhibit “B” is therefore documentary hearsay which is legally inadmissible even if there was no objection at the trial to its admission. If the author of Exhibit “B” was later called to testify at the trial the Appellant would have been afforded the opportunity to cross-examine him. He was never called.
On this, Appellant’s counsel relied on the cases of Opayemi vs. The State (1985) NWLR (Pt. 5) 101 at 108 – 109, Buhari vs. INEC (Supra) at 424.
Learned senior counsel for the Appellant submitted that the trial court extensively acted upon Exhibit “B” against the Appellant when he held that Exhibit “B”
“Revealed that the deceased was killed during secret cult initiation which took place inside the bush at Ihiagwa” and that ” ………………. The late Chima Chinaka was beaten to death. That when the suspects Obinna Osuoha (Accused person) Eloka Iwuoha, Christogonus Nnebedum, Smoky, Sly, Divine and Bola now at large saw that Chima Chinaka has died, they abandoned him inside the bush. That all the suspects conspired to kill the late Chima”
Learned senior counsel for the Appellant submitted that apart from the initiation which the Appellant admitted there is no eye witness or direct evidence on these conclusions which the trial court drew:
“(i) That the deceased was killed during secret cult initiation . The only direct evidence (from the Appellant) is that the deceased did not die during initiation. The evidence of the Appellant which was never challenged is that Chima Chinaka though weak like the appellant walked on his feet after the initiation up to a point where he could not walk again and other persons helped him.
(ii) The deceased died inside the bush. PW1 testified that the body of the deceased was recovered from a tract road at Nekede and that he visited the scene at Nekede with the Police where they recovered it and short Icheku stick which was used in beating the deceased. The PW3 was not the direct IPO and he was not an eye witness to the death of the deceased. The direct evidenceof the Appellant which was never challenged is that the deceased left the scene of the initiation alive. There is no evidence on record that Ihiagwa is the same place as Nekede.
(iii) That the late Chima Chinaka was beaten to death. The unchallenged direct evidence of the appellant is that the deceased was not beaten to death inside the bush at Ihiagwa.
(iii) “When the suspects obinna osuoha (accused person) Eloka Iwuoha, Christogonus Nnebedem, Smoky, Sly, Divine and Bola now at large saw that Chima Chinaka has died, they abandoned him inside the bush.”
The only direct evidence on record (from the appellant) is that the deceased did not die at the time when the Appellant last saw him. The only direct evidence (from the appellant) on record is that the deceased was not abandoned inside the bush. The evidence of the PW1 is that the body of the deceased was found on a track road at Nekede.
Learned senior counsel for the appellant summarized his points on Issue No. 2 when he submitted that the trial court relied on the contents of Exhibit “B” to disbelieve the appellant. And in effect, the trial court relied on hearsay evidence to disbelieve the direct evidence of the appellant. He thus violated the appellant’s fundamental right to fair hearing. Counsel relied on the case of Okafor vs. A-G, Anambra State (1991) 6 NWLR (Pt. 200) 659 at 678 and submitted that the incidence of violation of a substantive fundamental right in proceeding renders the proceedings void. A conviction based on a denial of fair hearing is void and ought to be set aside.
On Issue No. 2 respondent’s counsel said that the submission by the appellant that the learned trial court extensively acted upon Exhibit ‘B’ in convicting him was not borne out of the printed record. That, the provisions of section 36 of the 1999 Constitution of the Federal Republic of Nigeria was not breached by the respondent. That the failure to call W. O. Salau ACP, the author of the Police Investigation Report Exhibit ‘B’ to testify in court did not invalidate the admission of Exhibit ‘B’ through PW3. And that the issue is new, not raised at the trial and no leave was obtained to raise and argue it in this court.
Learned counsel for the respondent said that the Police Investigation Report was properly tendered and admitted in evidence through PW3, he being one of the members of the team of police investigators that wrote the report. Further more, that:
(i) The report Exhibit ‘B’ was obtained in the course of investigation by PW3 and his team before its admission by the trial court.
(ii) Proper foundation was laid by PW3 before its admission by the trial court.
(iii) The appellant was given opportunity to oppose the admission of Exhibit ‘B’ but he chose otherwise, and so section 36 of the Constitution cited by the appellant is inapplicable.
(iv) Exhibit ‘B’ was part of the proof of evidence served on the appellant prior to the hearing of the case.
(v) Admissibility of a document in a criminal trial is a function of relevance of the document.
(vi) Any of the members of police investigation team could equally have tendered the police investigation report.
(vii) W. O. Salau (ACP) was the officer that detailed PW3 and others to investigate the matter when PW1 and PW2 brought their complaint to State C. I. D.
(viii) Finally, Section 36 of the Evidence Act Cap 112 Laws of the Federation of Nigeria, 1990 takes care of the appellant’s contention – Nwangwa vs. The State (1997) 8 NWLR (Pt. 517) 457 at pp. 464 – 465.
Respondent’s counsel concluded that the admission of Exhibit ‘B’ through PW3 cannot be documentary hearsay.
A preliminary point in relation to Issue No. 2 is the respondent’s contention that the appellant required leave of court to raise the issue of the admission of Exhibit ‘B’ which was not raised in the court below. The simple answer to that is that leave is not required to challenge a finding on fact made by the trial court sitting at first instance in its final judgment in a criminal proceeding.
Section 241 of the Constitution of the Federal Republic of Nigeria, 1999 provides as follows:
“241(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.”
By this provision, a party dissatisfied with the final decision of a High Court can appeal to the Court of Appeal pursuant to section 241(1) (a) on any ground of appeal, be it law, mixed law and fact or facts. See Total International Ltd. vs. Anogboro (1994) 4 NWLR (Pt. 337) 147 at 160.
It is clear therefore that the non-qualification in (a) of the ground for the exercise of the right, leaves it at large and enables the exercise of the right with respect to all grounds of error whether of law, fact or mixed law and fact. It is therefore correct to conclude that appellant’s exercising the right of appeal under section 241(1) do so as of right and the competence of the appeal is not affected by absence of leave of the High Court or the Court of Appeal. See Nafiu Rabiu vs. The State (1980) 8 – 11 SC 130 and Aqua Ltd. vs. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622 at 655.
In deciding Issue No. 2 I recollect the words of the learned counsel to the respondent that Exhibit ‘B’ was admitted without objection through PW3 and that its admissibility is covered by the provision of section 36 of the Evidence Act. Exhibit ‘B’ in this case is the Investigation Police Report dated 8th October, 2004 and authored by W. O. Salau ACP who was not called to testify in the case. The report itself is divided into four (4) main parts as follows:
” 2 – Facts of the case
3 – Investigation
4 – Findings
5 – Conclusion.”
There is no evidence from the printed record that in the process of admission, that Exhibit ‘B’ was read in open court. It seems therefore that the very first time the learned trial Judge would be seized of the content of Exhibit ‘B’ was in the course of writing his judgment. Now, and contrary to the submissions of the learned counsel for the respondent, it is obvious from page 131 of the printed record that the learned trial Judge indeed placed heavy reliance on the content of Exhibit ‘B’ in his findings and conclusions in convicting the appellant of the offence of murder. He said:
“The PW3 was, ASP, John Peter, said he investigated this matter with a team of five policemen and that at the end of their investigation, they submitted Police Investigation Report Exhibit ‘B’. Exhibit ‘B’ – findings revealed that the deceased was killed during secret cult initiation which took place inside the bush at Ihiagwa. That the secret cult goes by the name 2 – 2 confraternity. That secret cult societies are unlawful society. That the late Chima Chinaka was beaten to death. That when the suspects Obinna Osuoha (the accused person) Eloka Iwuoha, Christogonus Nnebedum, Smoky, Sly, Divine and Bola now at large saw that Chima Chinaka has died, they abandoned him inside the bush. That all the suspects conspired to kill late Chima Chinaka.”
The above findings and conclusions of the learned trial Judge at page 131 at the printed record merely turned out to be an horizontal arrangement of the vertical arrangement of the findings in Exhibit ‘B’ at page 140 – 141 of the printed record.
“4. Findings: During the investigation the following facts emerged:
(1) That Chima Chinaka was killed by the suspects through secret cult initiation.
(2) That the secret cult name is 2 – 2 confraternity.
(3) That the late Chima Chinaka was beaten to death.
(4) That when the suspects Obinna Osuoha, Eloka Iwuoha, Chrysangonus Nnebedum and Smoky, Sly, Divine and Bola now at large when they saw that Chima Chinaka has died they abandoned him inside the bush.
(5) That the initiation took place inside Ihiagwa bush.
(6) That all the suspects conspired to kill late Chima Chinaka.
(7) That the handset of late Chima Chinaka was found with the suspect Obinna Osuoha.
(8) That secret cult societies are unlawful society.
(9) That the suspect Eloka Iwuoha master minded the initiation being an old member move the whole of them and deriving great benefit from the initiations.
(10) That Eloka Iwuoha and smoky now at large are cousins and known what each other does.
(11) That the post mortem examination report carried out on late Chima Chinaka proved that he was beaten with objects such as sticks and knives.”
The learned counsel for the respondent justified the admissibility of the Police Investigation Report in this case under the provision of Section 36 of the Evidence Act and insisted that the admission of Exhibit ‘B’ through PW3 cannot be documentary hearsay. Section 36 of the Evidence Act provides as follows:-
“Notwithstanding the provisions of this Act or of any other law but subject as herein provided, where in the course of any criminal trial, the court is satisfied that for any sufficient reason, the attendance of the Investigating Police Officer cannot be procured, the written and signed statement of such officer may be admitted in evidence by the court if –
(a) the defence does not object to the statement being admitted and
(b) the court consents to the admission of the statement.”
In the instant case, let us assume that the admission of Exhibit ‘B’ was regular and proper in spite of the fact that there was nothing on record to explain the non-attendance of W. O. Salau ACP the author of Exhibit ‘B’ in court. Even at that, Exhibit ‘B’ was and could have only being admitted as a statement of report for the fact that it was made under the provision of section 36 of the Evidence Act. It must be understood that the moment the content of Exhibit ‘B’ reveals a fact or any facts in prove of the truth of an assertion, at that point in time, it offends against the hearsay rule and in the case of documents it becomes documentary hearsay. Put in another way, neither PW3 nor W. O. Salau ACP the author of Exhibit ‘B’ would have been able to give oral evidence of the content of Exhibit ‘B’ especially the “findings” which in essence contain facts which tend to prove the truth of the assertions constituting the ingredients of the charge of murder.
The rule against hearsay whether oral or documentary is a rule of content and not a rule of form. The admission of the statement or in this case a report of investigation under the provision of section 36 of the Evidence Act only provides for a rule of form, if the author of a statement, document or report admitted by virtue of the provision of section 36 of the Evidence Act was incapable of given direct oral evidence of the content of the document that piece of evidence is documentary hearsay, wrongly admitted and a court of law should desist from acting upon it.
In other words, Exhibit ‘B’ would only have been properly tendered without offending the hearsay rule by a person who can give direct oral evidence of its content. In the instant case neither PW3 nor W. O. Salau ACP would have been able to give direct oral evidence of the content of Exhibit ‘B’ since none of them was at the scene of crime to witness the beating or the killing of the deceased person.
The above point was lucidly emphasised in Subramaniam vs. Public Prosecutor (1956) 1 WLR 965 – 969 when the Judicial Committee of the Privy Council stated the hearsay rule thus:
“Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth or what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.”
The content of a document can only be proved by someone who can give direct oral evidence of the content of such a document thus in spite of the provision of section 36 of the Evidence Act, documentary hearsay is not admissible in evidence.
The facts of the decision of the Court of Appeal in Michael Nwangwa vs. The State (1997) 8 NWLR (Pt. 517) 457 cited in this respect by the learned counsel to the respondent are different and are quite distinguishable from the facts of this case.
The IPO’s Report in the Nwangwa’s case was tendered by the defence during the cross-examination of PW2 without objection. The IPO stated clearly therein that he investigated the alibis of the appellant and found them proved. Meanwhile, without giving any reasons, the learned trial Judge in the Nwangwa case merely dismissed the IPO Report with a wave of the hand and held it was “really weightless”.
It was in these circumstances that Katsina-Alu, JCA, (as he then was) who delivered the lead judgment of the Court of Appeal held that the IPO’s Report Exhibit ‘C’ in the Nwangwa case was properly received in evidence under section 36 of the Evidence Act, that, that the learned trial Judge did not evaluate or properly evaluate Exhibit ‘C’ and that Exhibit ‘C’ enhances the case of the defence.
There is nothing in the Nwangwa’s case to suggest that the provision of section 36 of the Evidence Act is an antidote to the admissibility of documentary hearsay evidence.
In my opinion, in the instant case, Exhibit ‘B’ has no probative value. The maker of the document did not give evidence at the trial and therefore was not exposed to cross-examination. Exhibit ‘B’ was based on information passed to the maker by third parties. What is more? The content of Exhibit relates to the truth of the assertions and not merely the fact that it was made – when in fact neither the maker nor the tenderer of Exhibit ‘B’ was capable of giving direct oral evidence of its content. A court of law cannot attach probative value to such an exhibit.
In Abadom vs. State (1997) 1 NWLR (Pt. 479) 1, at 24, the Court of Appeal per Ubaezuonu, JCA, opined in relation to the provision of section 91 of the Evidence Act as follows:
“It is clear from the above section of the Evidence Act Section 91(2) (a) (b) that the calling of the maker to give evidence is not a sine qua non for the admissibility of a document in evidence …………………………..
Having said that much what use the court will make of it is a different matter. Can the court rely on the document as proving the truth of its contents? I think not. The document has merely imported to the court what the firm of Auditors said in it. Unless a member of the firm of Auditors makes himself available to the court and answers questions about the contents of the document, the said contents would be documentary hearsay and cannot be relied on or acted upon by the court.”
Also, in Okafor vs. Okpalla (1995) 1 NWLR (Pt. 374) 1, at 24, the Court of Appeal held thus:
“The legal position then is that for a document to be admissible under the provisions of section 91(1) (a) (1) and (b); including the proviso thereto, the document must be tendered by a person who can give direct oral evidence of the contents of the document. Otherwise it is not admissible. The learned trial Judge was therefore right to have ruled that he admitted evidence wrongly. The argument that the document was pleaded does not assist in this regard. This is because a document though pleaded does not become admissible evidence by that reason alone. It must be tendered by a person who has direct oral evidence to give on the document.”
In the instant case, I agree with the learned counsel for the appellant that the trial court was in error in relying and acting upon the Police Investigation Report Exhibit “B” against the appellant. In Ekpo vs. The State (2007) 7 NWLR (Pt. 712) 292 at 304, it was held that:
“………. Hearsay evidence is inadmissible and cannot form the basis of any judgment given by any court and it is immaterial whether the evidence was objected to or not by the other party ……………… where, as in the instant case, a police witness testifies about what a prospective witness told him in the course of investigation, the evidence is hearsay.”
Issue No. 2 is resolved in favour of the Appellant.
The third issue in this appeal is whether the trial court was right when it held that the prosecution proved the offence of murder against the appellant.
Learned counsel for the appellant argued Issue No. 3 under two sub-heads, the first is whether the trial court was right in its conclusion that the appellant led the deceased to be initiated into a secret cult (i.e. whether the appellant conspired with others at large to lead the deceased to initiation into a secret cult?) The second, is whether the prosecution proved that the deceased died as a result of any act of the appellant. On the first part, learned counsel for the appellant echoed the appellant’s version of the story as follows:
“The appellant consistently stated that he was in the church when he received a phone call from the deceased to the effect that the deceased was waiting for him at the appellant’s home. He also stated that when he returned home in response to the deceased’s invitation the deceased informed him that there was a party to which he the appellant was invited by the deceased. On their way the deceased received a call from Sly informing him of a change of the venue of the party. When they were later informed that the party will take place at Ihiagwa he the appellant protested but they were forced at gun point to proceed to Ihiagwa.”
Learned counsel to the appellant submitted that these facts were never effectively challenged by cross-examination. That, there is no other eye witness account on record on this most material fact. And, that there is therefore no other admissible evidence to controvert this account of the sequence of events. The meaning of this account, said appellant’s counsel is that the deceased initiated the ill-fated outing from which he never returned alive. The deceased lied to his father that he was attending a party at the University. The disbelief of the appellant by the trial court does not find support from a proper summation and evaluation of all the evidence on record. That, evidence cannot derive from the lie which the appellant told his father that he was going to a cyber cafe.
Appellant’s counsel relied on the cases of Emeka vs. The State (1998) 7 NWLR (Pt. 559) 556 at 586 and Omogodo vs. The State (1981) 12 NSCC 119 at 128 and submitted that lies by an accused person can be induced by fear, stupidly or mendacity. In any event, said counsel, the appellant and the PW1 are ad idem on the account of every material event before the two youths set out for the outing. The appellant admitted that he lied to his father – DW2 as to where he was going to. The accounts of the appellant and his father are consistent on this fact and on the fact that the deceased came to the appellant’s house from where they both set out to the house of the deceased.
The fact that the appellant voluntarily confessed to the initiation said counsel, is more consistent with truthfulness than with mendacity. The appellant duly explained how he got to know the names of the other boys who led them to the initiation – the boys were calling their names. And, that the appellant’s evidence that they were intimidated into the initiation was not controverted by any other evidence.
Appellant’s counsel submitted further that the rejection of the photograph which showed the injuries which were inflicted on him during the initiation did not detract from the truth of the fact that he was beaten like the deceased. And that if conspiracy were to be imputed as between the appellant and the deceased, it ought to be placed squarely at the feet of the deceased who regrettably did not return alive after the outing. Appellant’s counsel relied on the cases of Aituma vs. The State (2006) 10 NWLR (Pt. 989) 452 at 468; Emeka vs. The State (1998) 7 NWLR (Pt. 559) 556 at 584; Onuoha vs. The State (1998) 5 NWLR (Pt. 548) 118 at 136 and Ifejirika vs. The State (1999) 3 NWLR (Pt. 393) 59 at 76 and submitted that the conclusion which is urged from the aforestated facts is at least a possible reasonable meaning of the evidence which ought to be preferred to any other meaning.
Still on this, appellant’s counsel submitted that the finding of the trial court to the effect that:
“From these facts in Exhibit ‘E’ and the answers of the accused person in cross-examination, the accused person knew and was relating with Sly, Smoky, DVD and Balogun before, at the time of this incident and after the incident. He knew about the meeting of the 2 – 2 cult fraternity members in the night of 16th September, 2004 in the bush at Ihiagwa. From the beginning, he deceived his father by telling him he was going to cyber caf’E9 when in truth he was attending secret cult meeting with the purpose of initiating people into the secret cult. His evidence that he was forced into the bush at Ihiagwa is false. I do not accept it as true. His evidence lacks credibility.”
Can only stand if it is derived from other reliable evidence and not merely on the phrase “I do not accept it”.
On this, counsel relied on the case of Morka vs. The State (1998) 2 NWLR (Pt. 537) 249 at 304 and added that such other evidence cannot derive from the contradictory and inconsistent evidence of the prosecution as in this case. The second leg of the submission of the learned counsel for the appellant on Issue No. 3 is on the question of causal link between the act of the appellant and the deceased’s death.
On this, appellant’s counsel submitted that neither PW1, PW2 nor PW3 was an eye witness to the death of the deceased. That there was indeed no eye witness account of how the deceased died because the account by the appellant ended with when the deceased was too weak to walk. There is no evidence on record which suggests that the appellant did anything at all to the deceased which was capable of causing him harm let alone death. No eye witness evidence on record suggests that the appellant ever beat the deceased. Instead, said counsel there is direct and uncontroverted evidence from the appellant that the appellant was beaten by the other boys now at large. Oforlota vs. The State (supra) at 440. And, that, one of such boys includes Christogonus Nnebedum who was allowed to escape from the court without any demonstrated attempt to re-arrest him. The PW1 stated that he knew the homes of those other boys.
Learned counsel for the appellant submitted that appellant gave evidence in his extra judicial statement Exh. ‘E’ and his evidence on oath as to who beat the deceased. That those persons named as well as the investigating police officers thus became material witnesses in the case. And that it was the duty of the police to investigate the appellant’s account effectively. In effect, said counsel, the appellant’s account was never falsified by any direct or reliable circumstantial evidence beyond the emotional evidence from the father and brother of the deceased.
Learned counsel for the appellant relied on the cases of Aituma vs. The State (2006) 10 NWLR (Pt. 989) 452 at 470 and Opayemi vs. The State (1985) 2 NWLR (Pt. 5) 101 at 106 and submitted that the failure of the prosecution to call material witness and to lend material evidence is that the benefit of doubt ought to be resolved in favour of the appellant. The trial court failed to so direct itself and that misdirection on a very material issue in the trial invariably led to a miscarriage of justice. Appellant’s counsel submitted further that the medical report of PW4 as to the cause of death of the deceased was admitted in evidence as Exhibit ‘D’ and adopted the summary of the evidence of PW4 to the effect that the cause of death was –
“(i) acute cardio respiratory failure consequent upon aspiration of stomach content into the respiratory track.”
“(ii) For a person to suffer aspiration of the content of the stomach to the respiratory track, the person must have been in a state of coma.”
The PW4, said counsel, also testified that in his opinion the body of the deceased may have been dragged but that there is no direct relationship between the abrasion and the aspiration of the stomach content into the respiratory track.
Appellant’s counsel submitted that this opinion was not stated with any certainty. That, there is no other evidence on record stating that the body of the deceased was dragged, who dragged the body or whether the body was dragged during the life or after the death of the deceased. That, under cross-examination PW4 testified that he –
(i) did not know what led the deceased falling into coma; and
(ii) the abrasions on the body of the deceased could not have led to the death of the deceased.
Appellant’s counsel submitted that there is no evidence from any witness on record that the deceased fell into coma at any moment during the presence of the appellant. That, the uncontroverted eye witness account of the appellant is that the deceased was in a state of unconsciousness when he (appellant) parted ways with him in the early hours of 17th September, 2004. The medical evidence of the PW4 did not state when the deceased died and no other evidence on record offered that explanation.
At the close of evidence said counsel, no act of the appellant was linked to the cause of the death of the deceased. A yawning gap was thus left in the case of the Prosecution which could only have been filled by a proper investigation of the case. That type of investigation, counsel said did not take place in this case and if it did the evidence of such investigation was not placed on record. On this, appellant’s counsel relied again on the cases of Aituma vs. The State (supra) at 470; Opayemi vs. The State (supra); Oforlete vs. The State (supra) at 441 – 442 and Isiekwe vs The State (1999) 9 NWLR (Pt. 617) 43 at 63.
Relying again on the cases of Onuoha vs. The State (supra) at 35 and Morka vs. The State (supra) at 304, counsel repeated that the judicial duty of the trial court is not satisfactorily or safely performed by the mere deployment of the words “I believe”, “I reject”, “I disbelieve” or “I do not accept” as a magic wand. That, there must be direct or satisfactory circumstantial evidence which must not be lacking in credibility or veracity especially in a trial for capital offence where such error by the court will lead to the death of a person whose guilt has not been proved beyond reasonable doubt.
On Issue No. 3, learned Director of Public Prosecution (Imo State) submitted that the trial court did not convict the appellant on the basis of his having told lies to the Court but rather on the basis of the totality of the evidence of PW1, PW2, PW3 and PW4 on record. That the trial court was right in its conclusion that the appellant led the deceased to be initiated into a secret cult i.e. that the appellant conspired with others at large to lead the deceased to initiation into a secret cult.
Respondent’s counsel tried to justify the conclusion of the learned trial Judge by quoting variously from the judgment as follows:
1.”At page 130, “the evidence of PW1, PW2 and PW4 pointed to the fact that the deceased was killed. He died a violent death. He was unlawfully killed …….. The next crucial issue to determine is who killed the deceased and in what circumstances.”
2.”The PW3 was ASP John Peter said he investigated this matter with a team of five policemen and that at the end of their investigation, they submitted investigation report Exhibit ‘B’. Exhibit ‘B’ – findings revealed that the deceased was killed during secret cult initiation which took place inside the bush at Ihiagwa. That the secret cult goes by the 2 – 2 confraternity.”
3.”That secret cult societies are unlawful society. That the late Chima Chinaka was beaten to death. That when the suspects Obinna Chinaka (the accused person) Eloka Iwuoha, Christogonus Nnebedum, Smoky, Sly, Divine and Bola now at large saw that Chima Chinaka had died they abandoned him inside the bush. That all the suspects conspired to kill late Chima Chinaka.”
4. At page 132, “From these facts in Exhibit ‘E’ and the answers of the accused in cross-examination, the accused person knew and was in relation with Sly, Smoky, Divine and Balogun before at the time of this incident and after the incident. He knew about the meeting of the 2 – 2 cult fraternity members in the night of 16th September, 2004 in the bush at Ihiagwa. From, the beginning, he deceived his father by telling him he was going to cyber cafe when in truth he was attending secret cult meeting with the purpose of initiating people into the secret cult. His evidence that he was forced into the bush at Ihiagwa is false. I do not accept it as true. His evidence lacks credibility.”
On these facts, learned counsel for the respondent said that the trial court did not convict the appellant because he told lies but because his evidence was not credible. Again, conspiracy amongst the appellant and Eloka Iwuoha, Christogonus Nnebedum, Smoky, Sly, Divine and Bola was established and properly found by the trial court – Obiakor vs. The State (2002) FWLR (Pt. 113) 299. So also is their liability under section 8 of the Criminal Code. On this, respondent’s counsel referred to the case of Nwankwoala & Anor. vs. The State (2006) All FWLR (Pt. 339) 801 at 815.
The case of the Prosecution, said respondent’s counsel is anchored on circumstantial evidence and relying on the case of Emeka vs. The State (2001) FWLR (Pt. 66) 682, counsel said the law is well settled that the guilt of an accused person can be proved by (a) confession (b) circumstantial evidence and (c) the evidence of eye witnesses. Still on the circumstances proved in evidence which the learned trial Judge assessed, evaluated and accepted in the conviction of the appellant, learned counsel for the respondent said the defence of the appellant that he never knew or met the boys that diverted them to the bush and beat them was rejected by the lower court when the court stated:
“Yet he rode in the same car with them to Rotibi Park in the morning of 17th September, 2004 after the night orgy and beating and without the deceased whom he traveled with to Ihiagwa. The accused person stated in Exhibit “E” his statement to the police, so I don’t know whether he was alive or not. I only called Sly and he told me Chima was going to come back that I should not fear.”
And also from the learned trial Judge that:
“The accused person left with the deceased on 16th September, 2004 for Ihiagwa bush where the secret cult members scheduled to meet …….. After the incident at Ihiagwa bush, the accused returned to Owerri in the morning of 17th September, 2004 with the cult boys he said he never knew. He never informed the parents of the deceased or the police of what happened. Rather when accosted by the PW2 brother of the deceased, he told him that the deceased Smoky, Sly went to the University to write a test, knowing that the deceased was lying in the bush at Ihiagwa.”
Learned counsel for the respondent submitted that all the above findings made by the learned trial Judge are cogent, unequivocal, irresistibly and conclusively point to the accused and his other cult members as the one that killed the deceased during their secret cult initiation at Ihiagwa or behind Polytechnic Nekede. And that they are caught by sections 7, 8 of the Criminal Code as applicable to Imo State, including of course evidence of conspiracy by them.
Also, relying on the cases of Jua vs. The State (2008) All FWLR (Pt. 440) 766 at 790, Igabele vs. The State (2006) All FWLR (Pt. 311) 1797 at 1829 – 1830; Nwaeze vs. State (1996) 2 SCNJ 47 at 61 – 62; Peter Igbo vs. State (1978) 3 SC 87 and Mbang vs. State 40 NSCQR 318 at pp. 334 – 335. Respondent’s counsel submitted that the doctrine of last seen caught up with the appellant in this case. That, even though, the onus of proof in criminal cases is always squarely on the Prosecution at all times, the last seen theory in the Prosecution of murder or culpable homicide cases is that where the deceased was last seen with the accused, there is the duty placed on the accused to give an explanation of the whereabout of the missing person and where there is evidence of foul play, explanation relating to how the deceased met his or her death. In the absence of any explanation the court is (entitled) justified in drawing the inference that the accused killed the deceased. Learned counsel for the respondent further submitted that the failure of the Prosecution to call those who the appellant stated on oath to have beaten him and the deceased during the initiation and the Investigating Police Officer to give evidence as material witnesses is not necessary under the law.
While it is the law that all vital witnesses must be called by the Prosecution in proof of the charge preferred against the appellant, it is entirely at the discretion of the Prosecution to decide on the sufficiency of number of witnesses they would field to secure the accused conviction. That, unless, the law stipulates expressly with regard to the minimum number of witnesses to establish an offence, the testimony of a single witness which is cogent and reliable would be enough to sustain the Prosecution’s case – Alor vs. State (1998) 1 ACLR 658 at 667.
Respondent’s counsel added that the appellant has a right to invite as a witness a person, who in their opinion would be an indispensable witness in securing the acquittal of the accused. On this, counsel referred to the cases of Nwaeze vs. The State (supra) at pp. 55 – 56; Alor vs. State (supra) at page 667 and Ijiofor vs. State (supra) at 1487.
On medical evidence, respondent’s counsel submitted that apart from the findings of the learned lower court on the evidence of PW4 which was accepted and proved, the learned trial court relied on other surrounding circumstances to convict the appellant. Counsel relied on the cases of Ahmed vs. State (2002) FWLR (Pt. 90) 1358 at 1374 – 1375; Azu vs. State (1993) 6 NWLR (Pt. 299) 303; Joseph Lori vs. The State (1998) 1 ACLR 267 at 279 and Adamu Kano vs. The State (1968) NMLR 227 and submitted that where the victim died in circumstances in which there is abundant evidence of the manner of death, medical evidence can be dispensed with. This, according to the respondent is because though medical evidence is desirable to prove the cause of death in homicide cases, it is not a sine qua non as cause of death can be otherwise established by circumstantial evidence.
In deciding Issue No. 3, that is whether the trial court was right when it held that the Prosecution proved the offence of murder against the appellant, it is important to recall my decision on Issue No. 1 that the learned trial Judge did not properly evaluate the evidence against the appellant on the circumstances on which Exhibit ‘C’, the handset was recovered. And, also my decision on Issue No. 2 to the effect that the Investigating Police Report Exhibit ‘B’ is devoid of probative value as it turned out to be documentary hearsay.
Taking off from this point what the learned trial Judge tried to do with what was left on the evidence on record is to link the guilt of the accused with the death of the deceased by a theory of association or perhaps a conspiracy theory. In my opinion, the facts that could uphold such a theory by the learned trial Judge simply do not exist in this case. This is largely because the appellant has DW1 was the only eye witness to the events that occurred between him and the deceased from the 15th – 17th day of September, 2004. Thus, the evidence by the appellant that it was the deceased who first initiated the move that they should go to a party was not contradicted. So is the evidence by the appellant that they were forced at gun point to Ihiagwa where they were beaten. Also, no other witness was able to disproof the testimony of the appellant that the various suspects now at large beat himself as well as the deceased on the fateful day. The statement of the appellant in Exhibit ‘E’ that he left the deceased weak and tired in the hands of their assailants, Sly also called Divine and some other boys and that at a point they told him to follow Smoky and leave Chima that they will take care of him, though uncontradicted did not make any impression in the conclusion of the learned trial Judge.
On the whole, the appellant’s evidence that they were intimidated into the initiation was not controverted by any other evidence.To the contrary however, the learned trial Judge believed that the appellant “knew about the meeting of the 2 – 2 cult fraternity members in the night of 16th September, 2004 in the bush at Ihiagwa and that the accused person knew and was relating with Sly, Smoky, DVD and Balogun before, at the time of the incident and after the incident.”
With great respect to the learned trial Judge, there was no evidence in the printed record to establish the above findings. Indeed, the appellant having mentioned the names of Sly or Divine, Smoky and others as their assailants and those responsible for the crime with which he was charged, it was incumbent on the Prosecution to call Sly, Smoky and those others who could resolve the vital point raised by the appellant as material witnesses.
In Opayemi vs. The State (supra) at pages 106 – 109, the court held variously that the failure of the Prosecution and the Court to consider and examine a defence is a failure to perform a vital duty and is likely to lead to a miscarriage of justice more specifically, that where an accused mentioned in his statement to the police that somebody else was responsible for the offence with which he was charged, it is necessary to call the policeman who took down the statement to testify on any investigation he carried out (if any) in respect of such a defence. This is because, the failure of the Prosecution to call a vital witness in a criminal case, is fatal to its case, because in such a situation the Prosecution has not proved its case beyond reasonable doubt. See also, Aituma vs. The State (supra) at 470.
In the instant case, it became obvious that a major reason why the learned trial Judge disbelieved the appellant was the lie which the appellant told his father that he was going to a cyber cafe. Thus, the following passage from the learned trial Judge became an important portion of the summing up. “From the beginning, he deceived his father by telling him he was going to cyber cafe when in truth he was attending secret cult meeting with the purpose of initiating people into the secret cult. His evidence that he was forced into the bush at Ihiagwa is false. I do not accept it as true. His evidence lacks credibility”. We all know however as a matter of law that lies by an accused person does not relieve the Prosecution of the burden to prove the charge beyond reasonable doubt.
The law is well settled that the mere fact that a person has lied is not proof that he is guilty. For though, a man may lie because he is guilty he may just as well lie because he is stupid or afraid or both and whether he is guilty or not.
Nnamani, JSC, stated the law clearly and fully in Omogodo vs. The State (1981) 12 NSCC 119 at 128, where he observed and held:
“It (the Robbery and Firearms Tribunal) was also of the view that the catalogue of lies presented by the accused coupled with his betrayed demeanour point to only one conclusion – guilt. But having regard to the circumstances of this case, these conflicts and discrepancies in the appellant’s evidence by themselves are not enough, in my view, to establish his guilt with the requisite degree of certainty. As was conceded by the Tribunal, a person may lie though innocent, such lies may be as a result of fear or stupidity or indeed anxiety on the part of the accused to save himself. The fact that an accused person has told lies has never been accepted as proof of his guilt.”
In this case, and contrary to the suggestion first of the learned trial Judge and later the learned counsel for the respondent, the appellant could not from the facts be caught by the provision of section 8 of the Criminal Code. It is the same set of uncontradicted facts offered by the appellant which defeated the conspiracy theory on account of their suggestion that the appellant did not share a previous ‘malicious’ intention with Smoky, Sly and others that would prevent the inference of a common intention between the appellant and others to prosecute an unlawful purpose in the con of the provision of section 8 of the Criminal Code.
It is provided by section 8 of the Criminal Code, that when two or more persons form a common intention to prosecute an unlawful purpose with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence. The provision of section 8 of the Criminal Code fixes on the purpose where there is a common intention to prosecute. However, the proof of common intention is a condition precedent to conviction in this type of case and a presumption of a common intention should not be too readily applied. See Ofor vs. R (1955) 15 WACA 4 and R vs. Bada (1944) 10 WACA 249.
In the instant case, having regard to the uncontradicted evidence of the appellant that they were intimidated into the initiation, common intention was not disclosed in evidence and could not be inferred from the circumstances of this case. Learned Director of Public Prosecutions for the respondent placed heavy reliance on the nature of circumstantial evidence in this case. The DPP submitted emphatically that circumstantial evidence is often the best evidence. It is evidence of surrounding circumstances which by undesigned concidence is capable of proving a proposition with the accuracy of mathematics. See Ebenehi vs. The State (supra) at 1832 and Ijioffor vs. State (supra) at 1457.
There are of course snippets of circumstantial evidence that could be garnered in favour of the Prosecution in this case. Some of which are explainable and others not so explainable. For example, the fact that the appellant named some of the boys in his statement Exhibit ‘E’ and later in his evidence could probably be explained on the ground that he had them call themselves. And the appellant himself explained his having to enter the same taxi with Smoky when he stated that Smoky who was one of those who beat him also ordered him into a taxi. In the scheme of things, it may be difficult to explain the fact that the appellant did not report the incident to the police thereafter, his attempt to run away before the police apprehended him or even his statement in Exhibit ‘E’ that he called Sly thereafter who assured him that Chima (the deceased) was going to come back home.
In all of these however, the important question is whether taken as a whole, those snippets of circumstantial evidence point unequivocally to the direction of the guilt of the appellant for the crime charged. My answer to this is in the negative. Circumstantial evidence is proof of fact by inference from the facts proved. This means that where direct testimony of eye witness is not available, the court is permitted to infer from the facts proved, the evidence of others that may be logically inferred.
However, in Lori & Anor. vs. The State (1980) 8 – 11 SC 86, the Supreme Court, per Nnamani, JSC, held that:
“……… circumstantial evidence sufficient to support a conviction in a criminal trial especially murder, must be cogent, complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the prisoner or no one else is the murderer. The fact must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.”
In the instant case, there is no evidence, medical or otherwise which provides a causal link between any act of the appellant and the death of the deceased. The cause of death must be linked to the act of the accused with certainty and clarity and not on the basis of conjecture, imagination or loose induction, and it must be proved that the accused knew that his act will result in death or did not care whether the death of the deceased will result from his act. See Akpa vs. The State (2008) 14 NWLR (Pt. 1106) 72 at 90; Kada vs. The State (1991) 8 NWLR (Pt. 208) 134 at 144; Ahmed vs. The State (2001) 18 NWLR (Pt. 746) 622 at 641 – 642 and Omonga vs. The State (2006) 14 NWLR (Pt. 1000) 532 at 551 and 561.
In this appeal, the Prosecution also invoked the last seen doctrine to justify the conviction of the appellant by the trial court. Truly, the law, presumes that the person last seen with the deceased, bears full responsibility for his death if it turns out, that the person last seen with him, is dead. Per Ogbuagu, JSC, in Bassey Akpan Archibong vs. The State (2006) All FWLR (Pt. 323) 84; Gabriel vs. State (1989) 5 NWLR (Pt. 122) 457; Igho vs. State (1978) 3 SC 87 and Nwaeze vs. State (1996) 2 SCNJ 47 at 61 – 62.
In my humble opinion, the facts and circumstances of this case would not permit the operation of the presumption of last seen. Again, from the uncontradicted evidence of the appellant, there was an explanation as to the whereabout of the deceased when he was still alive. In the appellant’s statement to the police Exhibit ‘E’ at page 144 of the record, he said inter alia:
“…….. They started beating us we were twelve in number, some of us were unconscious including Chima. When it was time to go we started going on the way Chima failed (sic) fell and said he was weak and tired. So Sly, DVD also called (Divine) and some other boys carried him on their shoulder. At a point they told me to follow Smoky and leave Chima that they will take care of him ………………………………”
Any attempt to still invoke the presumption of last seen after the appellant had given explanation of the deceased’s whereabout while the deceased was still alive would be tantamount to shifting the burden of proof which is permanently on the prosecution to the appellant.
Finally, after the elimination of the evidence relating to the recovery of Exhibit ‘C’ and Exhibit ‘B’ itself for lack of probative value, the question that arises is whether the Prosecution proved the ingredients of the offence of murder beyond reasonable doubt. It has been settled by case law that to secure a verdict of guilt in a murder charge under section 319(1) of the Criminal Code the Prosecution must prove beyond reasonable doubt:
“(a) there was a killing.
(b) the killing was unlawful as prohibited by section 316 of the Criminal Code.
(c) It was the act or omission of the accused person that caused the death of the deceased.
(d) The accused intended to cause the death of the deceased.”
See Akinfe vs. State (1988) 3 NWLR (Pt. 85) 729; Okoro vs. State (1988) 5 NWLR (Pt. 94) 255 and Idiok vs. State (2006) All FWLR 1788.
In the instant case, the Prosecution failed to prove the act or omission of the appellant that caused the death of the deceased. In a charge of murder, it is not enough to show that the act of the accused person could have caused the death of the deceased. The Prosecution has the onus to prove that it did in fact cause the death, and if the evidence does not prove that he did, then the failure of the defence to suggest some other causes does not confirm the case of the Prosecution. See Ahmed vs. The State (supra) at 641 – 642. Issue No. 3 is resolved in favour of the appellant.
Having resolved the three (3) issues in this appeal in favour of the appellant, the appeal is meritorious and it is allowed. The conviction and sentence of the appellant is accordingly set aside. A verdict of acquittal is entered.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I have had the privilege of reading before now the Judgment just delivered by my learned brother Owoade, JCA, I agree with his conclusion that the appeal is meritorious having regard to his reasoning in the said Judgment.
The appeal is therefore allowed by me.
HELEN MORONKEJI OGUNWUMIJU, J.C.A: I have read the judgment just delivered by my learned brother MOJEED ADEKUNLE OWOADE, JCA. I agree with his reasoning and conclusion that this appeal be allowed. I will add a few words.
The Appellant was charged with murder contrary to S.319 (1) of the Criminal Code Cap 30 Laws of Eastern Nigeria 1963 as applicable to Imo State and found guilty. Hence this appeal.
The case of the prosecution was based entirely on circumstantial evidence. For the prosecution to succeed on a charge of murder under S.319 of the Criminal Code, the following ingredients must be proved beyond reasonable doubt:
(a) That the death of a person occurred.
(b) The death is prohibited by S.316 of the Criminal Code.
(c) The act or omission of the accused caused the death of the deceased.
(d) The accused intended to cause the death of the deceased.
In this case, the prosecution proved that death occurred. The evidence in proof of the second ingredient is not conclusive. The medical evidence of PW4 was to the effect that the accused fell into a coma and choked to death (aspiration of the stomach content into the respiratory track). The medical evidence was that the beating observed on the body of the deceased and the injuries sustained from the beating could not have caused the death of the deceased. So, even if we believe the evidence of the prosecution that the accused was one of the cult members who engaged in the initiation of the deceased by beating him, the beating did not directly cause the death of the deceased. The cause of death must be proved and not assumed. YOUNG UGURU v. THE STATE (2002) 4 SCNJ 282.
Secondly, the last seen theory as deployed by the learned trial judge was with the greatest respect misconceived. The doctrine of last seen has evolved in our criminal jurisprudence, consistent with what obtains in other jurisdictions and is to the effect that it is the duty of an accused person who last saw the deceased alive to give an explanation on how the deceased met his death. In the absence of an explanation, the court is entitled to infer in the face of overwhelming circumstantial evidence that the accused person killed the deceased. See GODWIN IGABELE v. THE STATE (2006) 2 SCNJ 124, BASSEY AKPAN ARCHIBONG v. THE STATE (2006) 5 SCNJ 202.
In this case, Exh. E the confessional statement of the Appellant is the only direct evidence of the course of event that led to the death of the deceased. The Appellant’s statement contemporaneous to the event was that he left the deceased weak and tired in the hands of their assailants, one of them called Sly, Divine and some other boys. He named the others as Eloka Iwuoha, Christogonus Nnebedum, Smoky, Sly, Bola, Balogun. He stated in Exh. E –
“When it was time to go we started going on the way Chima failed (sic) and said he was weak and tired. So Sly, DVD also called (Divine) and some other boys carried him on their shoulder. At a point they told me to follow Smoky and leave Chima that they will take care of him……”
The above explanation in my humble view has shifted the responsibility of explaining the death of the deceased from the Appellant to the persons named by the Appellant as the last persons to see the deceased alive. The onus then shifted on the prosecution to prove that they had investigated the explanation of the Appellant and found it to be false. In the absence of any evidence or report of investigation that the explanation of the Appellant was false, the learned trial judge was obliged by law to believe the explanation. In a charge of murder where there is no eye witness account, as in this case, and it is only the evidence of the Appellant that is available, it is the duty of the court to believe it or else there is no evidence to believe. See MALLAM ZAKARI AHMED v. THE STATE (1999) 5 SCNJ 223.
It is unfortunate that the police were unable or unwilling to investigate this case properly. Surely the persons named by the Appellant did not vanish into thin air. In any event, there is no legal evidence on the record that the Appellant killed the deceased.
I allow the appeal and set aside the conviction and sentence of the Appellant. I also acquit him. Appeal Allowed.
Appearances
Mr. D. C. Denwigwe (SAN) with C. Ibeziako, Esq., Mr. N. K. Nwawa Esq., D. O. Nwalor Esq. and Mrs. C. Ofara Esq.For Appellant
AND
Mrs. C. C. Dimkpa Esq., DPP, Ministry of Justice, Imo StateFor Respondent
