AUGUSTINE IKE V. THE STATE
(2010)LCN/4022(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of October, 2010
CA/I/145/2007
RATIO
OFFENCE OF MURDER: ELEMENTS THAT MUST BE PROVED BY THE PROSECUTION TO SECURE A CONVICTION ON A CHARGE OF MURDER
It is appropriate in the determination of this appeal at this point to state the requirements to be proved for the offence of murder with which the accused is charged on the principle of law set out by judicial authorities. The Supreme Court had declared in a plethora of authorities that to secure a conviction on a charge of murder the prosecution must establish the followings: (1) That the deceased had died (2) That the death of the deceased had resulted from the act of the Appellant and (3) That the act or omission of the accused which caused the death of the decease was intentional with the full knowledge that death or grievous bodily arm was its probable consequences. The three ingredients stated above must co-exist and where one of them is absent or tainted with some doubt, the charge is not proved. See the cases of AHMED VS. THE STATE (2001) 18 NWLR Part 246 at 641; KADA VS. THE STATE (1991) 8 NWLR Part 208 at 134; AKINFE VS. THE STATE (1983) 3 NWLR Part 85 page 729 at 744; IGABELE VS. STATE (2008) 36 N.S.C.Q.R. page 826 at 877 per Aderemi J.S.C. PER MODUPE FASANMI J.C.A.
TAINTED WITNESS: WHO IS A TAINTED WITNESS
A tainted witness has been described as a witness who is either an accomplice or who by the evidence he gives may and could be regarded as “having some purpose of this own to serve. PER MODUPE FASANMI J.C.A.
DUTY OF THE COURT TO TREAT THE EVIDENCE OF A TAINTED WITNESS WITH A CONSIDERABLE CAUTION
It is trite law that the evidence of a tainted witness should be treated with considerable caution page 189 at 210-211. The requirement that a trial Judge should in such circumstance warn himself as one would in the case of accomplice is one dictated by prudence and not by law. See MBANI ANORVS. THE STATE (1988) 7 SCNJ Part 11 page 211 at 220. PER MODUPE FASANMI J.C.A.
WHETHER THE OFFENCE NEEDS CORROBORATIVE EVIDENCE FOR THE PURPOSE OF CONVICTION
What is more, murder is not an offence which needs corroborative evidence for the purpose of conviction. See IME DAVID IDIOK VS THE STATE (2008) 4 S.C.M page 59 at 76 per Niki Tobi J.S.C. PER MODUPE FASANMI J.C.A.
WHETHER PROOFS BEYOND REASONABLE DOUBT IS THE SAME THING AS PROOF BEYOND THE SHADOW OF DOUBT
Proofs beyond reasonable doubt have in a number of cases been described as not being beyond the shadow of doubt. See ALKALEZI VS THE STATE (1993) 10 L.R.C.N. at page 264, OCHEMAJE VS. STATE (2008) 36 N.S.C.Q.R., page 836 at 871 and OGUNBEGU VS. STATE (1974) 9 S.C. at page 1 and 9 S.C. at page 1 and section 138 subsection 1 of the Evidence Act. PER MODUPE FASANMI J.C.A.
NATURE OF THE CONTRADICTION THAT WILL BE FATAL TO THE PROSECUTION’S CASE
For a contradiction to be fatal to the prosecution’s case, it must be such that it goes to the root as to raise doubt in the mind of the Court about the guilt of the accused persons. See IGBI VS. STATE (2000) 3 N.W.L.R. Part 648 at 169; OGEALA VS. STATE (1991) 2 N.W.L.R. Part 175 at 509 and ALANI VS. STATE (2000) 7 N.W.L.R. Part 303 at 112 and NWATURUOCHA VS. STATE (2010) 31 W.R.N. page 91 at 105 lines 35-45. PER MODUPE FASANMI J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
AUGUSTINE IKE Appellant(s)
AND
THE STATE Respondent(s)
MODUPE FASANMI J.C.A.: (Delivering the Leading Judgment): This is an appeal against the judgment of Ogun State High Court of Justice, Ijebu-Ode Division in charge no. HCJ/IC/2004 delivered on the 16th of March 2005 wherein the Appellant was convicted for the offence of murder contrary to Section 316 (1) and punishable under Section 319(1) of the Criminal Code Law Cap 29 Laws of Ogun State of Nigeria 1978.
The Appellant was arraigned before an Ijebu-Ode High Court together with the 2nd accused person – Lucky Rapido on 5th day of April, 2004 on one count charge of the murder of Abiodun Oloti on or about the 28th day of November 2002 contrary to Section 316 (1) and (2) and punishable under section 319(1) of the criminal code Law cap 29, Laws of Ogun state of Nigeria 1978. The offence was committed at Orita J6 via Ogbere in the Ijebu-ode Judicial Division of Ogun State.
At the trial, the Respondent called six witnesses and tendered two exhibits which were exhibits “A” Statement of 2nd Accused dated 29/11/02 and “B” – Statement of the 1st accused now Appellant dated 1/12/02, while the Appellant gave evidence in his defence and called two witnesses. At the end of the trial Appellant was convicted of the offence as charged and sentenced to death by hanging on the 16th of March 2005. In the same judgment, the learned trial Judge held that the Respondent (prosecution) did not prove any crime against the 2nd accused person consequently discharged and acquitted him.
Being aggrieved by the decision, Appellant filed a notice of appeal to this court on the 23rd of March 2005. With the leave of this court, Appellant filed three additional grounds of appeal on the 3rd of February 2009 but was deemed properly filed and served on the 22nd of April 2009. In line with the practice of the court, briefs of argument were filed by learned counsel representing the parties to the appeal. Appellants brief of argument was filed on 3/2/09 but deemed properly filed and served on 22/4/09 while the Respondent’s brief of argument was filed on 5/10/09 but deemed properly filed and served on the 28th of Sept 2010.
The facts of the case from evidence adduced by the Respondent were that on 23/11/02, P.W.2 one Sunday Arugbo a commercial motor cyclist accidentally hit a woman with the motorcycle as a result of which the woman sustained injuries. Family members of the said woman took her to the hospital for treatment and paid. Meanwhile the Appellant seized the motorcycle. P.W.3 Sunday Akintoye the owner of the motorcycle later refunded the money paid for treatment to the victim’s husband. On 27/11/02, P.W.3 went in company of P.W.4 Idowu Aderibole to retrieve the motorcycle from the Appellant. The Appellant and one other person allegedly beat up P.W.3 and P.W.4, p.w3 escaped while p.w4 was detained by the Appellant in his house. P.W.3 then reported to a Police Officer friend who accompanied him to the Appellant’s house where the Policeman was also allegedly beaten up and his clothes torn by Appellant, 2nd accused and one other man. The Policeman and P.W.3 left the scene. On 28/22/02, P.W.3 went to the Appellant’s house with a group of people including the deceased to effect the release of p.w.4. There he met some people with the Appellant who resisted their efforts of amicable settlement of the issue that led to the detention of P.W.4. As a result, an argument ensued which resulted in a fight. The Appellant ran inside in a fury, came out with a gun and as a result of which the crowd dispersed into hiding except the deceased who said the Appellant was his friend and so could not shoot him. The 2nd accused person then ordered the Appellant to “spray them”. The Appellant shot at the deceased, one Bidoun Oloti who fell and died.
At the hearing, of the appeal learned counsel for the Respondent urged the Court to deem the Respondent’s brief of argument date 5th October, 2009 and filed the same date as having been properly filed and served.
Learned Counsel for the Appellant did not oppose. The Respondent’s brief of argument dated and field 5th October, 2009 was deemed as properly filed and served on 28th September, 2010. Learned Counsel for the Appellant adopted and relied on the Appellant’s brief as the argument in support of the appeal. He urged us to allow the appeal for the reasons set out in the brief and to set aside the conviction and sentence of the Appellant. Learned Counsel for the Respondent also adopted and relied on the Respondents brief of argument and urged the Court to dismiss the appeal and uphold the conviction and sentence of the lower Court.
From the four grounds of appeal, learned Counsel for the Appellant formulated a sole issue for determination thus:
Whether in all the circumstances of this case, the Respondent proved the charge of murder against the Appellant beyond reasonable doubt as required by law.
The sole issue was also adopted by the Respondent in its brief of argument although couched differently thus:
Whether from the totality of the evidence adduced, the Respondent proved its case beyond reasonable doubt.
The sole issue covers the Appellant’s grounds of appeal for dissatisfaction with the decision appealed against. Since they have been fully addressed by the learned Counsel for the parties in their respective briefs, I intend to determine the appeal on the issue formulated by the Appellant. Issue One
Whether in all the circumstances of this case, the Respondent proved the charge of murder against the Appellant beyond reasonable doubt as required by law.
The submission of the learned counsel for the appellants on the issue is to the effect that the evidence adduced by the Respondent fell short of the requirement of proof beyond reasonable doubt. Learned Counsel for the Appellant submitted that the parties are in agreement that the Respondents proved the death of the deceased. It is also common ground between the parties that the deceased died as a result of gunshot wounds. Learned Counsel for the Appellant submitted further that the sole issue in contention is whether the act of the Appellant caused the death of the deceased. In discharging this duty, the Respondent must adduce cogent and compelling evidence linking the Appellant with the death of the deceased by showing either a positive act or negative omission of the Appellant causing injury to the deceased which directly resulted in his death. Learned Counsel referred to the cases of ONAH VS. THE STATE (1985)3 NWLR Part 12 page 236 at 232 para C; MUFUTAU BAKARE VS. STATE (1987) 1 NWLR Part 52 page 579 at 587 para. H. According to learned Counsel for the Appellant, the Respondent completely failed to discharge its duty in this regard. The only evidence before the trial court as to who shot the deceased is the testimony of P.W.5 Akindele Muyide alias Asoba. The probative value of the testimony of p.w5 must be considered in the light of the facts and circumstances of the case especially the existence of other evidence that contradicts his testimony. The evidence of P.W.5 is completely contradicted by the evidence of the defence witnesses that p.w5 came into the Appellant’s house, armed with a gun while his cohorts were in the possession of cutlasses matchets and other dangerous weapons. It was in the course of the Appellant’s struggle with P.W.5 that the gun discharged and hit the deceased person.
It was further submitted that the evidence of P.W.5 is not credible and the learned trial Judge ought not to have ascribed any probative value to it. There is uncontroverted evidence before the trial Judge that P.W.5 led the crowd of people that went to the house of the Appellant on 28th November 2002 and partook in the event leading to the death of the deceased. P.W.5 is clearly an interested party as far as culpability for the death of the deceased is concerned and undoubtedly a tainted witness being a person who could also be held responsible and prosecuted for the death of the deceased. He submitted a Court cannot convict on the evidence of a tainted witness without corroboration. Learned Counsel referred to the case of MBENU VS. THE STATE (1988) 2 N.S.C.C. page 231 at 239-241. He submitted that the learned trial Judge failed to exercise reasonable caution in considering and relying on the uncorroborated evidence of P.W.5 who could have been charged for the murder of the deceased.
Relying on the authority of NWAMBE VS. STATE (1995) 3 SCNJ page 77 at 79, He submitted that the holding of his Lordship at page 68 of the records that “the prosecution witnesses evidence is corroborative and not discredited under cross examination” is not supported by the facts before the Court.
For the Respondent, she submitted that the Respondent led credible evidence which was not shaken under cross examination nor by the incredible defence raised by the Appellant. The evidence led at the trial showed that the Appellant detained p.w4. That p.w.5 and a crowd of people tried to effect his release, the appellant resisted by firing a gunshot which resulted in the death of the deceased. The trial Judge believed the evidence of the prosecution’s witnesses when he held that:
“it is my view from the circumstances surrounding this charge, the evidence of the prosecution sounds more reasonable and plausible and I believe it. If p.W5 and the crowd were armed as alleged by the 1st accused person and if they were up to forty according to D.W.1 and one hundred according to D.W.2 they would have overpowered the 1st accused. I hold that in the circumstance of this case, the defence cannot avail the 1st accused”
Learned Counsel for the Respondent referred to the case of UBANI VS. STATE (2002) 3 NWLR Part 754 page 380 at 387. It was also pointed out that P.W5 is not a tainted witness. She submitted that where a witness has not been shown to have a personal interest or a purpose to serve in a case, he is not only competent but his evidence does not require corroboration and it is immaterial that such a witness shares some relationship with the victim. Reliance was place on the case of YAHAYA VS. STATE (2001) 10 NWLR Part 721 page 360 at 374 – 375. Learned Counsel for the Respondent submitted that the learned trial Judge arrived at a just conclusion.
It is appropriate in the determination of this appeal at this point to state the requirements to be proved for the offence of murder with which the accused is charged on the principle of law set out by judicial authorities. The Supreme Court had declared in a plethora of authorities that to secure a conviction on a charge of murder the prosecution must establish the followings:
(1) That the deceased had died
(2) That the death of the deceased had resulted from the act of the Appellant and
(3) That the act or omission of the accused which caused the death of the decease was intentional with the full knowledge that death or grievous bodily arm was its probable consequences.
The three ingredients stated above must co-exist and where one of them is absent or tainted with some doubt, the charge is not proved. See the cases of AHMED VS. THE STATE (2001) 18 NWLR Part 246 at 641; KADA VS. THE STATE (1991) 8 NWLR Part 208 at 134; AKINFE VS. THE STATE (1983) 3 NWLR Part 85 page 729 at 744; IGABELE VS. STATE (2008) 36 N.S.C.Q.R. page 826 at 877 per Aderemi J.S.C. The import of these authorities is that all the ingredients or elements of an alleged criminal offence have to be established by credible and sufficient evidence which leaves no reasonable doubt as to the guilt of the accused in order for a conviction to be grounded in law, parties are in agreement that the deceased died. It is common ground between the parties that the deceased died as a result of gunshot wounds. The evidence of the Respondent on the crucial ingredient of whose act caused the death of the deceased is stated by P.W4 and p.W5 who were eye witnesses of what happened on the day and at the scene of the incident which led to the charge against the Appellant. They gave direct and positive account of the incident. P.W4 at page 34 last para of the record of proceedings had this to say:
“The following day people came to effect my release, they met me sitting down where I was detained. Biodun Oloti was one of the people that came to effect my release. He asked the two accused persons why I was being detained. Then the 1st accused went into the room brought out a gun with two bullets, corked the gun and Lucky the 2nd accused person ordered him to “spray them” 1st accused then fired at Biodun and he died.”
Under cross examination by the 1st accused’s Counsel at page 35 line P.W4 Idowu Aderibole maintained that:
“1st accused shot at him and killed Biodun”
Again P.W5 at page 37 lines 4-10 of the record had this to say:
“I hid in between banana trees by the side of the house. 1st accused then came out of the house with a gun. Biodun then asked him why he brought out a gun and what he wanted to do with it, then 2nd accused told 1st accused to “spray now” 1st accused then dipped his hand into his pocket and brought out two bullets, he loaded the gun and shot at Biodun who fell and died.”
Under cross examination by Counsel to the 1st accused i.e the Appellant he maintained that 1st accused was the person that shot and killed Oloti.
The defence witnesses particularly D.W1 at page 42 of the record had this to say:
“On 29/11/02 I was in my house when I heard some noise, I saw a mob of people coming with witnesses sticks, gun e.t.c they entered the house and ordered 1st accused out. 1st accused asked them why, they then rushed at him and carried him out. One Ikale boy named Asoba then faced 1st accused saying he would kill him today. They then started struggling with a gun and the gun went off suddenly.”
The learned trial Judge reviewed the evidence of the Respondent, and its witnesses the Appellant and his witnesses. The learned trial Judge believed the evidence of the prosecution witnesses when he held at page 76 of the record:
“it is my view that from the circumstances surrounding this charge, the evidence of the prosecution sounds more reasonable and plausible and I believe it. If P.W.5 and the crowd were armed as alleged by the 1st accused person and if they were up to forty according to D.W.1 and one hundred according , to D.W.2 they would have overpowered the 1st accused. I hold that in the circumstance of this case, the defence cannot avail the 1st accused.”
The view of the learned trial Judge on this head is quite apt. The learned trial Judge rightly held that the act of the Appellant caused the death of the deceased and that such act was intentional with the knowledge that death or grievous bodily harm was its probable consequence. The evidence of P.W4 and P.W5 who were eye witnesses has established a nexus between the act oi the Appellant and the death of the deceased. The Respondent has proved beyond reasonable doubt that it was the act of the Appellant that caused the death of the deceased. If an ordinary reasonable person were to be asked. Did the accused intend to shoot or kill or did he intend to shoot to cause grievous bodily harm? The answer will be a straight yes because of the way the Appellant entered his room brought out a gun, loaded it and shot at the deceased who did not go into hiding as the others did. I am on one with the learned trial Judge that the defence of self defence cannot avail the Appellant in these circumstances.
Learned Counsel for the Appellant referred to P.W.5 as a tainted witness whose evidence should be treated with considerable caution. A tainted witness has been described as a witness who is either an accomplice or who by the evidence he gives may and could be regarded as “having some purpose of this own to serve.” It is trite law that the evidence of a tainted witness should be treated with considerable caution page 189 at 210-211. The requirement that a trial Judge should in such circumstance warn himself as one would in the case of accomplice is one dictated by prudence and not by law. See MBANI ANORVS. THE STATE (1988) 7 SCNJ Part 11 page 211 at 220.
In the case at hand, the learned Counsel for the Appellant duly cross-examined all the prosecution witnesses as shown on the record and I am unable to find anywhere on the record where any of the witnesses or p.W.5 was directly or by any implication accused of being an accomplice or one whose evidence could be regarded as having some purposes of his own to serve. The allegation of P.W5 being a tainted witness is unfounded and has no basis to raise any doubt in the direct evidence of the prosecution witnesses or P.Ws’s evidence to justify the trial Court in resolving the alleged doubt in favour of the Appellant. The learned trial Judge therefore arrived at a just conclusion when he held at page 71 of the record thus:
“From the facts of the charge before the Court, it is clear that P.W5 is not an accomplice and has not been sufficiently proved to be a tainted witness”.
P.W5 is a competent witness whose evidence does not require corroboration. What is more, murder is not an offence which needs corroborative evidence for the purpose of conviction. See IME DAVID IDIOK VS THE STATE (2008) 4 S.C.M page 59 at 76 per Niki Tobi J.S.C.
On the question of prove of the charge against the Appellant beyond reasonable doubt, learned Counsel for the Appellant submitted that the evidence before the Court fell short of the standard required by law. He submitted that the weapon of crime i.e the gun used by the Appellant was not produced. He submitted that there is inconsistency in the evidence of P.W.4 and P.W.5 as to whether there was a fight or not. It is material and raises a serious doubt as to whether the story of the prosecution is true. He urged the Court that the doubt should be resolved in favour of the Appellant. According to him the learned trial Judge did not evaluate the evidence given by the defence.
For the Respondent learned Counsel submitted that the prosecution led credible evidence which was not shaken under cross-examination nor by the incredible defence raised by the Appellant. The evidence led at the trial showed that the Appellant detained P.W4. That P.W5 and a crowd of people tried to effect his release. The Appellant resisted by firing a gun shot which resulted in the death of the deceased.
The learned trial Judge reviewed the evidence of the Respondent vis-a-vis the evidence of the Appellant and his witnesses and he believed the evidence of the Respondent and had this to say at page 77 of the record thus:
“It is my considered view that the 1st Accused act of seizing P.W3’s motorcycle, refusing to release same when demanded and detention of P.W4 are unlawful acts which culminated in the shooting and killing of the deceased and that is an act which all reasonable people will so recognize and must condemn as an act bound to subject anyone in the vicinity to the risk of harm. One can categorically say that he intended to kill or cause grievous bodily harm to anyone.”
A careful perusal of the evidence of the prosecution witnesses does not leave one in any doubt that the ingredients laid down by a plethora of authorities to successfully establish the guilt of the Appellant have been proved by the prosecution. The guilt of the Appellant has been proved in accordance with the requirements of Section 138 of the Evidence Act. Proofs beyond reasonable doubt have in a number of cases been described as not being beyond the shadow of doubt. See ALKALEZI VS THE STATE (1993) 10 L.R.C.N. at page 264, OCHEMAJE VS. STATE (2008) 36 N.S.C.Q.R., page 836 at 871 and OGUNBEGU VS. STATE (1974) 9 S.C. at page 1 and 9 S.C. at page 1 and section 138 subsection 1 of the Evidence Act.
Appellant and Respondent are in agreement that the deceased died of gunshot. It is therefore of no moment that the gun used was not tendered. On the contradiction mentioned by the learned Appellant’s Counsel, imperfection in human reflection is quite normal and so the absence of minor discrepancies in story or account at an event by different people or witnesses in any given case would be the accompaniment of a tutored and concorted story. Consequently the contradiction on whether there was fight or not on the day of the incident is not material and fatal to the case of the prosecution. Since the learned trial Judge did not find or discover any material contradiction, in the evidence of p.w.4 and p.w.5 the Court holds the view that the finding was ably and competently made. See NDUKWE VS. STATE (2009) 37 N.S.C.Q.R. page 425 at 462 per MUNTAKA Coomassie, J.S.C.
For a contradiction to be fatal to the prosecution’s case, it must be such that it goes to the root as to raise doubt in the mind of the Court about the guilt of the accused persons. See IGBI VS. STATE (2000) 3 N.W.L.R. Part 648 at 169; OGEALA VS. STATE (1991) 2 N.W.L.R. Part 175 at 509 and ALANI VS. STATE (2000) 7 N.W.L.R. Part 303 at 112 and NWATURUOCHA VS. STATE (2010) 31 W.R.N. page 91 at 105 lines 35-45.
Learned Counsel for the Appellant submitted that the Appellant and the 2nd accused were both charged with the murder of one Abiodun Oloti. The evidence of the Respondent was that Appellant shot and killed the deceased on the instruction of the 2nd accused who told him to “spray them.” The learned trial judge found that the evidence of the prosecution against the 2nd accused is not substantial or substantiated and doubted the veracity of P.W.5 testimony. On this doubt, he discharged and acquitted the 2nd accused person. On the same evidence which he doubts, he held that the prosecution had proved the ingredients of the offence of murder against the Appellant. He argued further that the learned trial judge cannot accept the testimony of P.W.5 in part and reject it in part. Since the learned trial Judge doubted the veracity of P.W.5’s testimony, the doubt ought to have been resolved in favour of both the 2nd accused and the Appellant. He cited the cases of ADELE VS. STATE (1995) 2 N.W.L.R Part 377 at 269 particularly at 293 where their Lordships held that:
“Indeed it is now settled that when a trial judge has totally discredited and rejected the evidence of a witness and regarded it as lacking in probative value and on the basis of that refused to use it as basis for convicting another accused person, he should decline to use it as basis for convicting another accused person especially when, as in the instant case, the evidence in respect of the Appellant is in extricable interwoven around the 7th accused who was discharged and acquitted. See UMANI VS STATE (1998) 1 N.W.L.R Part 70 page 274 at 288-289. Irrespective of the fact that 7th accused in order to establish his defence of alibi called his father (D.W5) who supported him to the hilt and so ended up in his being discharged and acquitted where the evidence against two accused persons (in this case the 4th Appellant and the Appellant herein is a criminal is in one material respect the same) and the doubts is resolved by the trial Judge in favour of one accused person, the same doubt should so be resolved in favour of the other in this case, the Appellant. Consequently if one is discharged and acquitted, the other should also be discharge and acquitted, as well. See Learned Counsel for the Respondent submitted that the 2nd accused ought not to have been discharged and acquitted because there are overwhelming inculpatory evidence against him. She submitted further that the fact that a co-accused is discharged and acquitted does not mean that the Appellant as a matter of course too will be discharged and acquitted. A Court will only do so if the evidence incriminating the two is the same. She cited IDIOK VS THE STATE (2008) 4 S.C.M page 59 at 68. Counsel urged the Court not to discharge the Appellant because that Appellant and 2nd accused actively participated in the commission of the crime. Appellant killed the deceased on the instruction of the 2nd accused. 1st accused went into the room brought out a gun with two bullets, corked the gun and Lucky the 2nd accused ordered him to “spray them”. 1st Accused then fired at Biodun and he died. The law is clear that when two or more persons actively participated in the commission of a crime in the execution of a common intention, each of them would be liable for offence and it does not matter who did what in the commission of the offence. See EMEKA VS. STATE (2001) 14 N.W.L.R Part 734 at 666 and IDIOK VS. STATE (2006) 12 NWLR Part 993 at page 1 and NWENKWOALA VS. STATE (2006) 14 NWLR Part 1000 at 663.
I am inclined to the view expressed by the learned Counsel for the Respondent that 2nd accused ought not to have been discharged and acquitted. However, I must observe that the Respondent ought to have appealed against the erroneous discharge and acquittal of the 2nd accused. Since this is not an issue before this Court there is little or nothing one can do about it. The general position of the law on the issue before the Court is that where the evidence adduced at the trial of two or more accused persons is the same and inseparable in the proof of the offence charged, then a discharge of one or some of the accused persons for want of proof would as a matter of law affect the discharge of the others. See EBIRI VS. STATE 92004) 5 S.C. Part II page 29 at 35, or (2004) 11 NWLR Part 885 page at 604 paras. C to E, the Supreme Court per Tobi JSC in the lead judgment had this to say:
“The position of the law is that where two or more persons are charged with the commission of an offence and the evidence against all the accused persons is the same or similar to the extent that the evidence is in extricably woven around all the accused persons the discharge charge of one must as a matter of law affect the discharge of the others. This is because if one or more of the accused persons is discharge charge of one must as a matter of law affect the discharge of the others. This is because of one or more of the accused persons is discharged for want of convicting evidence that must automatically affect all the others in the light of the fact that the evidence against all the accused persons is tied together like Siamese twins at the umbilical and with their matter.”
Therefore for the principle to apply the evidence against all the accused persons must be so inextricably interwoven around all the accused persons the view expressed by the learned counsel for the Respondent that 2nd accused ought not to have been discharged and acquitted. However, I must observe that the Respondent ought to have appealed against the erroneous discharge and acquittal of the 2nd accused. Since this is not an issue before this Court there is little or nothing one can do about it. The general position of the law on the issue before the Court is that where the evidence adduced at the trial of two or more accused persons is the same and inseparable in the proof of the offence charged, then a discharge of one or some of the accused persons for want of proof would as a matter of law affect the discharge of the others. See EBIRI VS STATE (2004) 5 S.C Part II page 29 at 35, or (2004) 11 N.W.L.R Part 885 page at 604 paras C to E, the Supreme Court per Tobi J.S.C in the lead judgment had this to say:
“The position of the law is that where two or more persons are charged with the commission of an offence and the evidence against all the accused persons is the same or similar to the extent that the evidence is in extricably woven around all the accused persons the discharge charge of one must as a matter of law affect the discharge of the others. This is because if one or more of the accused persons is discharged for want of convicting evidence that must automatically affect all the others in the light of the fact that I am inclined the evidence against all the accused persons is tied together like Siamese twins at the umbilical cord with their mother”,
Therefore for the principle to apply the evidence against all the accused persons must be so inextricably interwoven around all the accused persons such that they are tied thereby and must either fall or stand together. There must be no additional or other evidence which can properly interfere with the bond binding any one or some of the accused with the others. Once other evidence was available outside the common binding bond of evidence between the accused persons, then the principle would clearly not be applicable. This is why the learned jurist Tobi J.S.C likened the evidence to siamese twins tied at the umbilical cord with the mother.
In the present appeal, Appellant and 2nd accused were charged together with the murder of Abiodun Oloti. The evidence of the Respondent or the prosecution witnesses at the lower court which was believed and used to convict the Appellant was used to discharge the 2nd accused. The evidence of the prosecution witnesses which the Court believed is inclusive of P.W4 and P.W.5 evidence where they stated categorically that 2nd accused ordered the Appellant to spray them, when he brought out the gun. Appellant shot the deceased and he died. Learned trial Judge held at page 77 of the record thus:
“It is my considered view that the 1st accused act of seizing p.W.5’s motorcycle, refusing to release same when demanded, and detention of P.W4 are unlawful acts which culminated in the shooting and killing the deceased; and it is an act which all reasonable people will so recognize and must condemn as an act bond to subject anyone in the vicinity to the risk of harm. One can categorically say that he intended to kill or cause grievous bodily harm to anyone.”
Later on in the same judgment the learned trial Judge somersaulted in his findings on the prosecution evidence against the 2nd accused and held at page 78 of the record thus:
“As to the 2nd accused person, I have earlier stated in the course of this judgment that the only evidence against him is that he was present at the scene with the 1st accused person. The evidence that he ordered the 1st accused to shoot is not substantial and not substantiated. I have doubts as to its veracity. It is trite that where there is doubt in the mind of the Court in a criminal matter it ought to be resolved in favour of the accused person. See JOHN I OKONJI VS THE STATE (1987) 3 S.C. 175 at 208, I therefore resolve the doubt in favour of the 2nd accuse person.”
In conclusion he convicted the Appellant and discharged the 2nd accused. This is unfortunate and sad because 2nd accused is also guilty as a principal offender as the Appellant who shot on the 2nd accused instruction under Section 7 of the Criminal Code. Both the Appellant and 2nd accused are guilty of the offence charged in law. See EMEKA VS. STATE (2001) 14 N.W.L.R Part. 734 at 666 and IKEMSON VS. STATE (1989) 3 N.W.L.R part 110 at 455 and ATIKU VS. STATE (2010) 9 N.W.L.R Part 1199 page 241 at 285 para B.
From the nature of the evidence adduced by the prosecution at the trial it is so intricably interwoven and inseparable in respect of the Appellant and 2nd accused that they are bonded by it in a manner that they must either stand or fall together as far as the guilt in respect of the offence charged was concerned. The particular role played by any of them was immaterial in finding of guilt on the charge and cannot be legal justification for the Court to pick and choose against or in favour of whom of the accused persons the evidence should be used in the proof of the offence charged. The learned trial Judge was therefore wrong in law to have convicted the Appellant and discharged the 2nd accused person on the same evidence. The issue does not stop there as one has to determine the effect of the error of the discharge of the 2nd accused on the conviction of the Appellant on the appeal at hand.
The learned jurist Tobi J.S.C also provided the answer in the case of EBIRI VS STATE (Supra) by citing in addition the case of UMANI VS concluded his lead
“Of course, the Appellant in Umani’s case was discharged and acquitted by a majority judgment and so I have no alternative than to discharge and acquit the Appellant, a person, I think clearly committed the offence of murder. This is clearly one area where the law is really an ass. There is nothing I can do about it.”
The Appellant in the case was thereafter discharged and acquitted by his Lordship. If his Lordship did not have an alternative then to discharge and acquit the Appellant in the case before him for same or substantially similar reasons that exists in this appeal; that is discharge and acquit on the one hand of some accused persons and on the other convicting some other on the same evidence that is so intricably interwoven by a trial court in a joint trial, that must be the position of the law that is unavoidable. The law being an ass in the situation, this Court cannot but be seen to abide by it no matter how strongly one feels about the otherwise cogent evidence that would have warranted a conviction of the Appellant and the 2nd accused at the trial.
The Court inspite of its earlier findings on the issue of whether the act of the Appellant caused the death of the deceased, whether P.W5 is a tainted witness, whether the charge had been proved against the Appellant beyond reasonable doubt, is emboldened on the inescapable position of the law as established in the case of EBRI VS. STATE (Supra) to have no viable legal or judicial option than to enter a verdict of discharge and acquittal for the Appellant in this appeal and this Court will apply the same rationale.
A Court of Appeal will interfere with a finding of fact of the Court of trial when it is clear that the finding is perverse and did not flow from the facts relied upon. See DUMEZ NIG. LTD VS. NWAKHOBA (2008) 36 N.S.C.Q.R. page 885 at 911 per M. Mohammed J.S.C. The finding of the learned trial Judge is perverse for acquitting the 2nd accused on the same evidence relied upon in convicting the Appellant.
In the final analysis, the appeal is hereby allowed and the judgment of the lower court delivered on the 16th March 2005 convicting the Appellant for the offence of murder and sentenced to death in the judgment delivered on 16th March, 2005 is hereby set aside.
STANLEY SHENKO ALAGOA, J.C.A.: I have had the privilege of reading before now the lead delivered by my learned brother, Fasanmi JCA. I agree with the reasoning and conclusion reached. I also allow the appeal and set aside the judgment of the lower court delivered on the 16th March, 2005 convicting and sentencing the appellant to death.
SIDI DAUDA BAGE, J.C.A.: I entirely agree with the lead judgment of my learned brother, M. Fasanmi J.C.A. I agree with the reasonings and conclusions reached therein. I adopt same as mine; the appeal is meritorious and is also allowed by me. The death sentence imposed on the appellant is hereby set aside.
Appearances
Adewunmi Ogunsanya;
M. AdesinaFor Appellant
AND
Miss F.F. Fakolade State Counsel Ogun State Ministry of Justice;
Miss. F. Sodipo State Counsel Ministry of Justice Ogun StateFor Respondent
