CHIEF SAKPUGI GONEE & ORS. V. THE STATE (2011)

CHIEF SAKPUGI GONEE & ORS. V. THE STATE

(2011)LCN/4679(CA)

In The Court of Appeal of Nigeria

On Thursday, the 7th day of July, 2011

CA/PH/466/2008

RATIO

CHARGE FOR MURDER: INGREDIENTS THAT THE PROSECUTION MUST PROVE BEYOND REASONABLE DOUBT IN A CHARGE FOR MURDER

It is settle law that in a charge of murder as in the instant appeal, the prosecution must prove the ingredients beyond reasonable doubt. The ingredients are:- [a] That the deceased is dead. [b] That the death of the deceased resulted from the clear act of the accused person. [c] That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence; see the numerous cases of Ubani v. The State [2003] 18 NWLR (pt 851) 224; Ekang v. The State [2001] 1 NWLR [pt. 723) 1; Sule v. The State (2009) 17 NWLR (pt. 1169) 33; Uwagbue v. The State [2008] 12 NWLR [Pt. 1102] 621. PER ISTIFANUS THOMAS, J.C.A.

PROOF OF GUILT OF ACCUSED PERSONS: HOW TO PROVE THE GUILT OF THE ACCUSED PERSON

SINGLE WITNESS: WHETHER A TRIAL COURT CAN ACT ON THE EVIDENCE OF A SINGLE WITNESS

The law is settled that a trial court can act on the evidence of a single witness to sustain a conviction for murder or homicide. PER EJEMBI EKO, J.C.A.

CONVICTION: ON WHAT BASIS IS A CONVICTION SUSTAINED IN CRIMINAL TRIALS

In criminal trial, a conviction is sustained only upon proof beyond reasonable doubt. It is not every finicky or trifling doubt that gives the accused a right to be acquitted. The evidential burden, according to Tobi JSC, in ABEKE V. THE STATE (2007) 9 NWLR (PT, 1040) 411 at 429, is satisfied if a reasonable man is of the view that from the totality of the evidence before the court, the accused person committed the offence. The proof is not one beyond all shadow of doubt, but a reasonable doubt founded on what is rational. PER EJEMBI EKO, J.C.A.

JUSTICES

ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria

EJEMBI EKO Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

1. CHIEF SAKPUGI GONEE
2. LAMBERT NWIKPO
3. NANEE BEADE Appellant(s)

AND

THE STATE Respondent(s)

ISTIFANUS THOMAS, J.C.A. (Delivering the Leading Judgment): The convicts/appellants, were tried and convicted for the murder of one, BARIBIAE ILEDAE deceased, contrary to section 319 (1) of the Criminal Code Laws of the then Eastern Nigeria 1963 applicable to Rivers state. The judgment appealed against, was delivered by B. A. Georgewill (J) of Bori division on 29-02-2008.
The brief fact of the case is that, initially, 6 suspects were tried together, but after the closing of evidence by the prosecution, three (3) accused persons were discharged and acquitted.
The case of the prosecution at the lower court is that, on 9th November, 2001 the appellants and others still at large, were in 1st appellants Peugeot 504. The deceased and his elder sister named Cecilia Tor-ue, were then returning home after farm work. The appellants then drove and passed the deceased and his sister, namely PW1. But that not far, appellants drove back and stopped, and then came out from the vehicle and began to attack the deceased with guns, axe and machetes, and that 4 other men also at large, emerged from the bush and joined the appellants. That seeing the way the appellants, and his supporters were causing the acts, PW1 had to run to Bionu village asking for help to come and rescue her brother. Before she got the assistance of PW4 and PW5, who came along with her, the deceased had been killed and dumped in the bush.
The deceased was taken to hospital the following day where the post-mortem examination was conducted after PW1 had identified his brother’s corpse. As testified or established by the prosecution witnesses, the corpse bore multiple machetes cuts about 10, the multiple cuts caused much bleeding leading to what is called hypocalcaemia by shock.
The medical doctor who performed the post mortem certified that the caused of death was as a result of the multiple machetes cuts. The prosecution called 8 witnesses and tendered exhibits in support where by, the trial judge sentenced the three appellants and convicted them to death by hanging.
The appellants being dissatisfied with the conviction filed on 29- 02- 2008 their respective notices of appeal. Latter each of the appellants filed another notice of appeal containing 5 grounds. Learned senior advocate for the appellants filed their brief of argument in which the following 4 issues are raised as follows:-
1. whether the prosecution has substantial by evidence beyond reasonable doubt the charge against the appellants as charged.
2. whether Exhibits C, F, O, J and J(i) were properly admitted in evidence by the court of trial.
3. Whether the trial judge properly appraised the identification evidence of the appellants before him.
4. What here the evidence of PW1 as a whole was properly accredited by the trial judge.
On the part of the respondent the brief has also raised similar issues for determination and there is no need to reproduce the identical issues.
However, it is to be that the appellants brief was wrongly signed by another person whose name is not known and said it is for F.A. Oso, SAN. In other words, the brief was signed by proxy which is not allowed. Be that as it may, the brief of the appellants would have been struck out, but justice.
Learned silk argued jointly the four issues he raised in the brief.
The contention is that there was no definite date when the deceased was murdered, and that PW7 Dr. C.N. Amakiri who performed the post mortem examination, had stated in Exhibit “L” that, the date of death was stated as on 9th December, 2001 and not on 9th November 2001 as averred by PW1, who was the eye witness of the murder. Learned silk is of the contention that the prosecution’s contradictions should be resolved in favour of the appellants, and relied on the decision of Abu Ankwa v. The State [1969] 1 NLR 133. Appellants Learned Senior Counsel also said there is a serious anomaly in the lower court’s judgment, when the trial judge took it upon himself to proffer explanations as to the date of the murder, and that it was wrong to have done so, and referred to the case Onubuogu v. The State (1974) 1 NWLR 1. The appellants are of the view of that, PW1, PW4, PW5 and PW6 testified that the date of the murder was committed on 9-11-2001, but that in Exhibit L, the pathologist stated that the probable date of death was on 9-12-2001. The silk urged this court to hold that, the trial judge had no right to proffers explanations to explain the contradictions in the evidence of PW1, 2, 3, 4, 5, 6 and PW7. The learned silk has also contended that, the trial judge made an error, when the issue of blood was considered, and that in Exhibits E,-E4, none of the prosecution witnesses could show that, there was a single drop of blood, either fresh or old or dried on the ground where the corpse of the deceased was lying and was photographed; that the same PW7, the pathologist, had stated that there was no blood in the pool of the deceased at the scene of crime. The appellant’s further contention is that, the trial judge rubbished the identification evidence of PW1 and that same should have been regarded as unreliable. Appellants counsel referred to and reproduced the trial judge’s findings and reasons reached in the judgment. Counsel urged this court to reject both the sworn testimony of PW1 and Exhibit A for being fundamentally, defective and urged the court to allow the appeal of the convicts because the conviction and sentence on the charge or information was not proved as led, and that the trial judge wrongly acted on Exhibits C, F, O, J and J1, which were legally inadmissible in convicting the appellants, that the trial judge relied on poor, wobbling and implausible identification evidence of the prosecution in convicting the appellant.
Learned silk lastly submitted that the evidence of the eye witness PW1, which was relied upon heavily as the basis for conviction was unreliable.
On the part of the respondent, learned Deputy Directior of public Prosecution, referred to the 8 prosecutions witnesses briefly. PW1 Cecilia Tor-ue was an eye witness to the murder of the deceased. The respondent also, referred to the numerous exhibits consisting of documentary evidence associated with the murder of the deceased.
The exhibits are as follows:-
1. Statement of PW1 made to the police on 15-11-2001 and another statement made on 29-11-2001 and was marked Exhibit “A”.
2. Letter written by HRH Mene T.Y. Baridam (JP) titled “Petition against Mr. Sakpugi Gonee (1st appellant) and others for the brutal murder of the deceased, Exhibit B.
3. 1st appellant’s statement made to the police on 10-11-2001 marked Exhibit C.
4. Negative photographs taken of deceased corpse by a photographer on 10-11-2001 lying in the bush which was procured by PW2 and marked Exhibit D.
5. Four copies of printed photographs of the corpse taken on 10-11-2001 and marked Exhibits E1-E4.
6. 1st appellant’s statement to the police on 28-11-2001 and marked Exhibits F and F1.
7. Statement made to the police by Korebari Gonee 3rd accused, dated 27-11-2001.
8…
9. Three negative of photographs deceased during the post-mortem examination by a photographer Exhibits H,-H3, H4 – H11
10…
11. 2nd appellants statement made to the police on 28-11-2001 marked Exhibit J.
13. Form D- autopsy report made by PW7 dated 12-12-2001 and marked Exhibit “L”.
14. Their appellant’s statement made to the police on 20-11-2001 and marked Exhibit N.
15. The first appellant’s statement made to the police on 11-11-99 in an earlier case involving the deceased as an accused and the appellant as compliance marked Exhibit O.
16. 2nd appellants statement made to the police on 28-11-2001 and marked Exhibit J2.

Learned counsel for the respondent in paragraphs 2.11 of the brief has contended that the conviction and sentence of the appellants was premised on the critical findings of fact made by the trial judge, and these are:-
1. That the deceased was gruesomely murdered along the Bionu-Lumene Farm road on 9-11-2001.
2. That the prosecution had through evidence of the witnesses, established clearly by credible and positive evidence against each of the appellants.
3. That it had been proved that it was the appellants and others at large that murdered the deceased on 9-11-01 having conspired together with common intention to commit the act.

The respondent has contended that there is no burden on the prosecution to prove its case beyond all doubt. That in a murder case, one single credible witness is capable of establish a case beyond reasonable doubt, and referred to the case of Akalezi v. The State [1993] 2 NWLR (pt.273) 1; Ndidi v. State [2005] 17 NWLR (pt.953) 17.
As to the appellants contention that Exhibit L was the one showing that the murder was committed on 9-12-2001 and not on 9-11-2001, learned counsel for the respondent has submitted that Exhibit L is un-ambiguous as what was received was a corpse and not a patient, and that since the corpse of the deceased was received on 10-11-2001 as the death of the deceased, should have been received that day for post mortem and that it was clearly typographical error or at best the davits error by the typist who typed the medical report.
As to the issue of pool of blood raised by the appellant in relation to Exhibits E, -E4, the respondent has submitted that it is a misconception, because the issue of pool of blood being absent from exhibits E1-E4 is of no importance, because the evidence of PW1, PW4 and PW5, said the corpse of the deceased at the scene of crime on 9-11-2001 in a pool of blood and found him dead. Counsel has asked the court to discountenance the appellant’s argument on pool of blood.
The respondent has argued that the trial judge had properly evaluated the oral and documentary evidence adduced before he arrived at the decision, and urged the court to dismiss the appeal.
I have carefully read the parties argument in their respective briefs. I have also considered the entire contents of the trial judge’s judgment which was delivered on 29th Feb, 2008. It is settle law that in a charge of murder as in the instant appeal, the prosecution must prove the ingredients beyond reasonable doubt. The ingredients are:-
[a] That the deceased is dead.
[b] That the death of the deceased resulted from the clear act of the accused person.
[c] That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence; see the numerous cases of Ubani v. The State [2003] 18 NWLR (pt 851) 224; Ekang v. The State [2001] 1 NWLR [pt. 723) 1; Sule v. The State (2009) 17 NWLR (pt. 1169) 33; Uwagbue v. The State [2008] 12 NWLR [Pt. 1102] 621.

It is also settled law of prosecution that, to prove the guilt of the accused person same can be proved by [a] confessional statement; [b] circumstantial evidence and [c] the direct evidence of eye witness to the commission of the offence, see Emeka v. The State [2001] 4 NWLR [pt. 734] 666. In this appeal as clearly found by the trial court, the proof of the charge and conviction of the appellants was specifically based on the direct evidence of an eye witness, namely PW1 Cecilia Tor-ue: Her evidence in Chief is as follows:
“I can remember the date of 9-11-2001 …my brother by name Batibeae Eledae came and met me at Nyowii, that I should follow him to his farm. After we finished work on the farm, we were returning home at about 7 pm, one Chief Sakpugi Gonee drove his car and passed us … as they drove past us, they reversed back and stopped by us, and they came out of the vehicle and grabbed my brother. They brought out with them sticks, axe, gun and knife and attacked my brother”…
In the above evidence of PW1 which was cross-examined by learned senior counsel for the appellants, the “I have set out in details the evidenced of PW1, both in her evidence in chief, her statement to the police and her through cross-examination by learned SAN … I have before me the evidence of PW1, both on oath and in Exhibit A and there is evidence before me that PW1 has known the 1st accused and the other persons even before the date of incident… she was not shaken at all on all material events …PW1 graphically testified as to the incident of 9-11-2001 and she was thoroughly cross-examined but in my finding, she was not shaken at all … I watched her demeanour in the witness box and her reactions… I found her to be a truthful witness who was only concerned with telling the court the truth as she personally witnessed it on 9-11-2001. I have no reason not to believe her with the consistency in her evidence”.
The above findings of the trial judge, is that, the evidence of PW1 was sufficient enough to act on the appellants conviction because she gave direct evidence as an eye witness. In other words the quilt of the appellants was proved; see Nigerian Navy v. Lambert (2007) 18 NWLR (Pt. 1066 at 300.
It is to be noted that the appellants and others at large were the last persons seen by PW1 when the appellants were attacking the deceased, and before PW1 called PW4 and PW5 to come and assist her brother, she discovered that the deceased had been killed and dumped in the bush. It is therefore not in doubt that, the acts in the murder of the deceased is accepted on the fact that they were the last persons seen attacking the deceased at the scene of crime, moreso, PW1 saw them using the lethal weapons before she ran away to the village seeking for help. The appellants could not testify or offer any reasonable explanation; see Archibong v. The State [2006] 14 NWLR [pt. 1000] 349.
As to the issue of date on the exact date of the murder, it was argued by the learned senior counsel for the appellant, I am of the view that; the evidence or PW1 and PW7 who tendered exhibit L has nothing essential in the appeal. Infact, the trial judge made in his judgment as follows:-
“I have calmly considered the submissions of respective counsel on the actual date of death of the deceased in this charge, it does appear to me that the learned SAN is making an issue out of a non issue on the strength of the evidence before the court against the 3 accused person … All through the evidence of PW1, PW2, PW4, PW5, PW6 and PW7, it is crystal clear that the deceased upon the attack by the accused persons who inflicted those awesome and fearful lethal and fatal injuries … died on the same date 9-11-2001 whose death was confirmed by PW4, and PW5 on their accompanying PW1, to the scene in Exhibit L the same PW7 was stating that the corpse of the deceased was received at the mortuary on 9-11-2001.. In my finding, the discrepancy in these dates as shown on Exhibit L is of no moment as the prosecution has proved positively with credible evidence that deceased met his death in the hands of the accused persons … on 9-11-2001 … As to the actual date of death, it is obvious even in Exhibit L that the body … was received on 10-11-2001 when the corpse was received at the mortuary. The subsequent record of 9-12-2001 as the probable death is of no moment.”
Based on the trial court’s finding which I can not tamper, the issue of death has no bearing on the appeal. Exhibit L is clearly unambiguous because as argued by learned DPP, what was received was a corpse and not a patient and therefore, the column in No 10 of the exhibits as probable date of death could not have been 9-12-2001. It was therefore a clear typographical error or at best the devils error by no doubt, the typist who typed the medical report, I am satisfied that the issue of date of death was correctly made by the trial judge. The appellant’s issues one and four are resolved against the appellant and infavour of the respondent.
With regards to the appellants argument that the trial judge made an error by not considering the issue of pool of blood in Exhibits E1-E4 being photographs of the deceased at the scene of crime is of no use. Learned Senior Counsel has argued that on the no pool of blood, it can not be said with the utmost certainly that the accused killed the deceased at the scene where his corpse was discovered. In my proper findings in the record, PW1, PW4 and PW5 when they came to the scene of crime, they saw the corpse of the deceased in his of blood. These are the eye witnesses of seeing the pool of blood. Morover PW2 saw the corpse and he testified on oath as shown on page 102 as follows:-
“On the scene of crime, we discovered the deceased in his pool of blood… I then directed the photographer … to take the photographs of the corpse…”
PW5 also testified as follows:-
“We visited the scene of crime at Bionu/Lumene farmland where we saw dry blood on the ground at the scene of incident”.
From the above quoted evidence of PW1, 2, 4, 5 and 6, the evidence as to pool of blood was effectively proved by the respondent’s witnesses. There is no good reason to argue that the trial court failed to consider the Exhibits in E, – E4 and said that these exhibits did not show ay pool of blood any where.
I am of the view that, it is the credible evidence of eye witnesses who saw the pool blood that will be relied upon. Exhibits E1-E4 and Exhibit H -H, H3, H4-H11 are of no moment. They are mere photographs of the deceased. I therefore resolve this issue in favour of the respondent and against the appellants.
The post mortem examination of the deceased as testified by PW7 is that the body bore multiple matchet cuts of about ten (10) and that the cuts caused excessive bleeding leading to death. The pathotogist certified the cause of death as the result of the multiple matchet cuts.
Learned Senior Counsel had argued that the trial court relied on Exhibits C, F, O, J, J, and J2: But in my considered opinion, the learned trial judge relied on the eye witness of PW1, which was supported by PW4 and PW5, which the learned senior advocate had submitted that the evidence of PW4 and PW5 are hearsay evidence. In my view, it is patently wrong for the learned silk to submit that the evidence of PW4 and PW5 are hearsay evidence, because, it is the prerogative of the trial judge to believe or reject the evidence of a witness as he saw the witnesses and he listened to their evidence including cross-examination and he found them as witnesses of truth which he accepted. Their evidence was not hearsay, the trial judge would not have accepted and relied on same in his judgment. I am satisfied that the trial judge actually and properly evaluated the oral and documentary evidence adduced at the trial court. It is settled law that where a trial court had performed its primary duty of assessing and evaluating the evidence adduced before the court and had made findings on same; this appellate court can not interfere with the findings, unless it is found to be perverse, See Abeke v. The State (2007) 9 NWLR [pt. 1040] 411; Isibor v. The State [2002] 4 NWLR (Pt 7-58) 741 and Sule v. The State [supra].

In a murder case as in the instant appeal, once a nexus is established between the act of the appellants and the death of the deceased, proof beyond all reasonable doubt is established, and therefore the convictions and sentences can not be disturbed.
In the final analysis, the appellants appeal has no merit whatsoever and the appeal is dismissed by me. I affirm the decision of the trial judge which was delivered on 29th Feb, 2008.

EJEMBI EKO, J.C.A.: The death of BARIBAE ILEDAE is the issue in this appeal. The State alleged that his death was criminally caused by the Appellants and that they intended to cause his death by their violent assault on him.
Several witnesses testified in this murder trial. The evidence of PW1 fixed the appellants to scene of crime and the attack on the deceased that eventually caused his death. The PW1 saw the appellants used lethal weapons on the deceased. The appellants offered no reasonable explanation such as could cast any reasonable doubt on the evidence of the PW1. Her evidence therefore was entitled to believe. See ARHIBONG v. THE STATE (2006) 14 NWLR (PT. 1000) 349. The evidence of the PW1 was credible. The law is settled that a trial court can act on the evidence of a single witness to sustain a conviction for murder or homicide.
The substance of the evidence of PW4 and PW5 is that they, both, saw the deceased lie on the ground at the scene of crime and in a pool of blood. For this they were eye witnesses. They were invited to the scene by PW1, when the appellants were mercilessly attacking the deceased with lethal weapons. The PW1 ran to the nearby village to seek the assistance of PW4 and PW5 in order to rescue the deceased. The totality of the evidence of PW1, PW4 and PW5 is the resultant consequence of the violent attack on the deceased. Upon dispassionate evaluation of the evidence of PW1, PW4 and PW5, the trial court believed their evidence. The law is settled that it is within the province of the trial court, which has the advantage of hearing and watching witnesses testify, to assess their credibility. And when the trial court, as the instant, has performed this primary duty of assessing and evaluating the evidence before it and has made findings of fact which are justified by the evidence before it, an appeal court is not entitled to make findings contrary to those of the trial court, more particularly when such findings depend largely on the credibility of the witnesses, and they are not perverse. See ISIBOR V. THE STATE (2002) 4 NWLR (PT. 758) 741 at 758 – 759.
So much fuss was made about the actual date of death of the deceased. The defence submitted that the PW7 and Exhibit L gave dates inconsistent with the date of death of the deceased on the charge sheet. In criminal trial, a conviction is sustained only upon proof beyond reasonable doubt. It is not every finicky or trifling doubt that gives the accused a right to be acquitted. The evidential burden, according to Tobi JSC, in ABEKE V. THE STATE (2007) 9 NWLR (PT, 1040) 411 at 429, is satisfied if a reasonable man is of the view that from the totality of the evidence before the court, the accused person committed the offence. The proof is not one beyond all shadow of doubt, but a reasonable doubt founded on what is rational. I am satisfied that the trial court correctly dismissed the defence submission as “making an issue out of a non-issue” and that “the discrepancy in these date as shown on Exhibit L is no moment as the prosecution has proved positively with credible evidence that the deceased met his death in the hands of the accused persons” on 9th November, 2001.
From the totality of the evidence before the trial court a nexus had been established between the death of the deceased and the acts of the Appellants. I hold therefore that the guilt of each appellant had been established beyond reasonable doubt at the court below and that the trial court was therefore right in their convictions and sentences.
I agree with my learned brother ISTIFANUS THOMAS, JCA that the appeal, lacking in merits, should be dismissed. The appeal is hereby dismissed by me. The convictions and sentences recorded by the trial court are hereby affirmed.

T.O. AWOTOYE, J.C.A.: I have had a preview of the judgment of my learned brother ISTIFANUS THOMAS JCA. I am in complete agreement with the reasoning and conclusion therein.
If this had not been a murder case this appeal would have been asphyxiated by technical flaws one of which is that the NOTICE OF APPEAL was not signed by the accused persons as required by the order 17 Rule 4 of the court of Appeal Rules.
Notwithstanding the above, one needs to consider the appeal on its merits.
I have gone through the evidence on record of the witnesses for both prosecution and the accused persons. The learned trial judge who had the opportunity to watch the demeanour of the parties and their respective witnesses after thorough consideration of the evidence accepted the evidence of the witnesses for the prosecution as true.
The PW1, Cecilia To-rue gave strong direct evidence. She saw the accused person now appellants, who were well known to her, as they attacked her brother. She said
“As they drove past as, they revised back and stopped by us they came out of the vehicle and grasped my brother. They brought out them sticks, axe gun and knife and attacked my brother”.
The learned trial judge accepted the evidence. The learned trial judge found her to be a truthful witness.
I cannot see any reason to fault the above finding of the learned trial judge since it is not perverse. See SHITTU v. EGBEYEMI (1996) 6 NWLR (PT. 457) 650; BABUGA v. THE STATE (1996)7 NWLR (PT.460) 276.
The Judgment of the learned trial judge cannot be faulted. I an therefore in complete agreement with my learned brother ISTIFANUS THOMAS JCA.
I agree that this appeal lacks merit. I also affirm the decision of the trial judge which was delivered on 29 – 2- 2008.

Appearances

F. A. OSO [SAN] with A. R. Abdullaham, F.E. Ikpokonte, C. S. PatrickFor Appellant

AND

I. OTORUBIO [D.D.P.P] Rivers StateFor Respondent