RUFUS ANYANWU & ORS. V. THE STATE (2012)

RUFUS ANYANWU & ORS. V. THE STATE

(2012)LCN/5297(CA)

In The Court of Appeal of Nigeria

On Thursday, the 5th day of April, 2012

CA/PH/171A/2004 (Consolidated)

RATIO

CRIMINAL LAW: INGREDIENTS OF PROVING THE CHARGE OF MURDER

That being so, for the prosecution to discharge the burden reposed on them in a charge of murder under Section 319(1) of the Criminal Code (supra), they have to lead credible evidence establishing the following:

(a) That there was a killing;

(b) That the killing was unlawful as coming under any of the circumstances enumerated under section 316 of the Criminal Code;

(d) That the act or omission of the accused which caused the death of the deceased must have been intentional, in that the accused had the knowledge that death or grievous bodily harm was the probable consequence of his action or omission. All the above stated ingredients must co-exist, and accordingly while one of them is absent or remain unproved, or tainted with doubt, the prosecution would have failed to prove the case of murder against the accused. This onus remains throughout the trial on the prosecution and never shifts. PER HARUNA M. TSAMMANI, J.C.A

EVIDENCE: TYPES OF EVIDENCE THAT MAY LEAD TO A CONVICTION

The type of evidence that may lead to a conviction of murder may flow from any of the following ways:

(a) The confessional statement of the accused which has been duly tested, proven and admitted in evidence.

(b) By circumstantial evidence which is complete, cogent and unequivocal and lead to the irresistible conclusion that the accused committed the offence charged.

See ILORI & ANOR. V. THE STATE (1980) 8-11 S.C. Pg. 81; IGABELE II v. THE STATE (2007) 2 N.C.C. Pg. 125 and EMEKA v. STATE (2001) 14 NWLR (Pt. 734) Pg. 666. PER HARUNA M. TSAMMANI, J.C.A

EVIDENCE: REQUIREMENT FOR CIRCUMSTANTIAL EVIDENCE TO FORM THE BASIS FOR CONVICTION

For circumstantial evidence to form the basis for conviction, the circumstances must clearly and irresistibly suggest that the accused was the person who committed the offence and that no one else did. That being so, the circumstantial evidence required must not only be cogent and unequivocal, but must also lead to the irresistible conclusion that the accused did in fact committed the offence. The evidence must not leave any ground for reasonable doubt which doubt if it exists must be resolved in favour of the accused. In other words, where there are other possibilities in the case which are equally consistent with the innocence of the accused, such an accused person cannot be convicted of murder, as in such a case the trial court is entitled to hold that reasonable doubt has been created in the case of the prosecution, and such doubt should be resolved in favor of the accused. See ESAI & 3 ORS v. THE STATE (1976) 11 S.C. Pg.39; ADIE v. THE STATE (1980) 12 S.C Pg. 116; AKPA v. STATE (2008) 14 NWLR (Pt. 1106) Pg.72, ORJI v. STATE (2008) 10 NWLR (Pt. 1094) Pg. 31 and ISMAIL v. STATE (2008) 15 NWLR (Pt.1111) Pg. 593. PER HARUNA M. TSAMMANI, J.C.A

CRIMINAL LAW: WHAT A CONVICTION SHOULD BE BASED ON

Accordingly, a conviction should be based on evidence and not on rumours, conjectures or suspicion, as suspicion is no substitute for proof beyond reasonable doubt. See ALAKE V. STATE (1992) 9 NWLR (Pt.265) Pg.200 and ADIE V. STATE (1980) 12 N.S.C.C. Pg. 51. Again, where the circumstantial evidence led is capable of two or competing interpretations, a conviction based thereon is liable to be quashed on appeal. See LORI v. STATE (1980) 12 N.S.C.C. pg.269. PER HARUNA M. TSAMMANI, J.C.A

EVIDENCE: MEANING OF CIRCUMSTANTIAL EVIDENCE

Meanwhile, circumstantial evidence is said to be evidence of surrounding circumstances which by undersigned co-incidence is capable of proving a proposition with mathematical accuracy.

See R. vs. Taylor & 2 Ors. (1928) 21 CAR 20 at 21, Obukor vs. The State (1984) 8 S.C.31, Chris Opara vs. The State (2000) 9 NWLR (Pt. 986) 508 at 525. PER MOJEED A. OWOADE. J.C.A

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria

HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria

Between

RUFUS ANYANWU

AND

EBENEZER EGWUEKWE

AND

VINCENT DURU (alias) OTOKOTO)

AND

ALBAN AJAEGBU

AND

SAMSON NNAMITO

AND

LAWRENCE EBOH Appellant(s)

AND

THE STATE Respondent(s)

HARUNA M. TSAMMANI, J.C.A (Delivering the Leading Judgment): The Appellants in this Consolidated Appeal Nos: CA/PH/171A/2004, CA/PH/171B/2004, CA/PH/171C/2004, CA/PH/171D/2004, CA/PH/171E/2004, CA/PH/171F/2004, were jointly charged before the High Court of Imo State Owerri Judicial Division with the murder of one Anthony Ikechukwu Okoronkwo, aged eleven (11) years, which is an offence punishable under section 319(1) of the Criminal Code Cap. 30. Laws of Eastern Nigeria, 1963 applicable to Imo State of Nigeria.
The brief facts of the case as presented by the prosecution before the trial court is that, on the 19/9/1996, the deceased victim of the crime one Master Anthony Okoronkwo, was hawking groundnuts around Otokoto Hotel when one Innocent Ekeanyanwu lured him into the hotel on the pretence that he was buying the groundnuts. That it was in that process that the deceased was killed by Innocent Ekeanyanwu with the assistance of Alban Ajaegbu and Samson Nnamito, on the instruction and request of Vincent Duru alias Otokoto who was the Proprietor and Managing Director of the hotel. That it was Leonard who Duru had requested for the head of a young male for ritual purposes. In the process the deceased’s head was decapitated and the tip of his penis cut off, while the headless body was buried in a farm cultivated by the wife of Vincent Duru alias Otokoto within the hotel premises.
It was while Innocent Ekeanyanwu was on the mission of delivering the head of the deceased as instructed by Vincent Duru to Leonard Unogu, that he was arrested by a team of policemen at a road block acting on a tip-off by one Hilary Opara. The said Innocent Ekeanyanwu was searched and found with the head later discovered to be that of Ikechukwu Okoronkwo. Upon interrogation by the police, the said Innocent Ekeanyanwu informed the police that he killed Ikechukwu Okoronkwo and that it was his uncle Leonard Unogu alias Ochiriozuo of Eziama who told him to procure the head for him. That he had gone to deliver the head to Leonard Unogu but did not see him, and was on his way back to Owerri when he was arrested. Those facts were contained in two separate statements he made to the police, which statements were admitted as exhibits 21 and 36 respectively.
Based on the contents of Exhibits 21 and 36, and the facts discovered as a result thereof the Appellants were arrested and charged for the murder of Ikechukwu Okoronkwo. It should be noted that, the said Innocent Ekeanyanwu died in police custody before conclusion of investigation.
At the trial, the prosecution called 11 witnesses, and tendered several exhibits which included the statement of the Accused/Appellants made to the Police. Each of the Appellants testified at the trial. At the close of evidence and addresses of counsel, the learned trial Judge, C.E. NWOSU-IHEME; J (as he then was) believed the case as presented by the prosecution. The learned trial judge accordingly convicted each of the Appellants and sentenced them to death by hanging. The Appellants being aggrieved by their conviction filed Notices of Appeal.
The Appeals as filed by the Appellants were consolidated by this court on the 20/1/2012. I now proceed to consider each of the appeals as filed by the Appellants. I begin by considering Appeal No: CA/PH/171A/2004.
Now, the Appellant in Appeal No: CA/PH/171A/2004 is Rufus Anyanwu. He was the 4th accused person before the trial court. He was granted leave to appeal out of time vide motion dated the 26/9/2006. The Notice of Appeal contains four (4) Grounds of Appeal as follows:
1. GROUND ONE
The Learned Trial Judge erred in law when she (sic) refused to evaluate the entire defence of the Appellant and sentenced the Appellant to death on ground of suspicion.
PARTICULARS
i. The defence of partial insanity or delusion was not considered.
ii. The defence of not having participated in the murder was not considered
1. GROUND TWO
The Learned Trial Judge erred in raw in holding that the discrepancies as to whether the Appellant was at the hotel on the day of the murder has left the court with no option than to disbelieve his defense.
Particulars
i. The discrepancies did not fix the accused to the ingredients necessary for commission of the offence.
GROUND THREE
The Learned Trial Judge erred in law in convicting the Appellant when there was no evidence at all to link him with the offence.
Particulars
i. None of the witnesses identified the Appellant as one of the murders (sic), giving instruction, aiding or abetting the commission of the crime.
ii. The only evidence given against the Appellant to the case was that he was the manager of Otokoto Hotel and an in-law to the owner of the Hotel.
GROUND FOUR
The judgment is against the weight of evidence.
As required by the rules of this court, brief of argument were filed and exchanged by the parties. The Appellant’s Brief of Argument is dated and filed the 25/1/2007, while the Respondent’s Brief of Argument is dated the 16/4/07 and deemed filed the 04/7/07. At the hearing parties adopted their briefs of argument. From the 4 Grounds of Appeal, the Appellant distilled three issues for determination as follows:
1. Whether the Learned Trial Judge was right in not considering other vital defence or defences in law raised by the Appellant during the trial.
2. Whether the Learned Trial judge was right to have held that he ought not believe the defence of the Appellant as a result of discrepancies in his defence of being absent at the scene of crime.
3. Whether there exist any evidence circumstantial or direct to justify that the Appellant participated in the crime of murder.
The Respondent formulated two issues for determination, as follows:
1. Whether the prosecution proved the charge of murder against the Appellant beyond reasonable doubt.
2. Whether the defence of insanity or any other defence availed the Appellant.
I shall determine this appeal on the issues formulated by the Appellant. However, I shall consider issues 1 and 2 together. Those two issues are adequately subsumed in issue 1 as formulated by the Respondent. Issue 3 will be separately determined. I shall however begin by considering issue No. 3.
In arguing this issue learned counsel for the Appellant contended that, there exist no evidence circumstantial or direct, cogent and compelling enough to justify that the Appellant participated in the crime of murder charged. That the holding of the learned trial judge at page 790 lines 15 – 30 of the record that witnesses proved that all the accused persons are responsible for the murder, is wrong as it affects the Appellant. That from the record, there was no evidence linking the Appellant with the crime of murder charged. Learned counsel posed, four questions in relation to the evidence red as it affects this Appellant, and answered all of them in the negative. See Paragraph 4.20 – 4.21 of the Appellant’s brief of argument. It is also the contention of learned counsel for the Appellant that from the evidence available on the record of Appeal, the prosecution failed to prove beyond reasonable doubt, the act or omission of the Appellant, and which act or omission which caused the death of the victim. That there is also no circumstantial evidence against the Appellant either from the testimony of the P.W.10 or any other witness which indicted the Appellant. That the finding of the learned trial judge at page 791 lines 1-11 of the record, which culminated in the conviction of the Appellant was erroneous, as there is no cogent and compelling circumstantial evidence as required by law to justify the conviction of the Appellant for murder. The cases of JOSEPH LORI & ANOR v. THE STATE (1990) 8 – 11 S.C. Pg. 81 at Pg. 86 and IGBOJI v. THE STATE (1975) 9-11 S.C. Pg. 97 at 104 were cited in support. We were then urged to hold that the circumstantial evidence led in this case is consistent with the innocence of the Appellant, and thus allow the appeal on this ground.
This issue was argued as issue 1 as formulated by the Respondent. Here, learned D.P.P., for the Respondent, after stating the ingredients that need be proved in a charge of murder as stated in the case of AIGBANGBEE v. THE STATE (1998) 1 A.C.L.R. pg.168 at 206 contended that the prosecution had succeeded in proving all the ingredients of the crime charged. That there was evidence that master Anthony Ikechukwu Okoronkwo died and that the death was unnatural as he was beheaded and the tip of his penis neatly cut. The trunk of his body was exhumed at Otokoto Hotel where the Appellant works as a manager.
Learned D.P.P. went on to submit that, as manager of the hotel, he was responsible for employing staff, and the general supervision of the hotel and the entire staff. He then contended that the Appellant omitted to perform his duties on the day of the incident by his failure to enforce the prohibition that hawkers are not allowed into the hotel, which enabled the victim to be killed in fulfillment of the instruction of Vincent Duru (3rd Appellant) who is the proprietor of the hotel and an in-law to the instant Appellant. That the Appellant acted in concert with the other Accused/Appellant, and being a party to the offence, it is not necessary for the prosecution to prove the definite actions of his, which caused the deceased’s death. That being the manager, the killing and burial of the deceased could not have been achieved without the full support, knowledge and acquaintance of the Appellant.
It is also the contention of learned D.P.P. for the Respondent that, it was the Appellant who employed Ekeanyanwu who did the actual killing and was present at the hotel on the 19/9/96, when the deceased was hired into the hotel. The Appellant failed or omitted to prevent the occurrence, which omission places him within the ambit of section 7(a)-(b) of then urged the Criminal Code. We were then urged to dismiss the appeal and to affirm the judgment of the trial court.
Now, by Section 36(5) of the 1999 constitution of the Federal Republic of Nigeria (as amended), every person charged or accused with the commission of a crime shall be presumed innocent until the contrary is proved. This presumption of innocence guaranteed by the constitution in favour of persons accused of having committed a crime, places on the prosecution the burden of proving the charge against the accused or appellant. To make this constitutional guarantee efficacious section 135(1) of the Evidence Act, 2011 (as amended) stipulates that where the commission of crime is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. See ISMAIL v. STATE (2008) 15 NWLR (Pt.1111) Pg. 593; ABDULLAHI v. STATE (2008) 17 NWLR (Pt. 1118) Pg. 203; OREPEKAN v. AMADI (1993) 11 SCNJ Pg.68 at 79 and STATE v. AJIE (2000) 7 S.C. (Pt.1) Pt.24.
The standard of proof required is that of proof beyond reasonable doubt. The standard of proof required of the prosecution to discharge is that, it must raise a case for the accused to answer. It therefore means that in a criminal trial, the prosecution must lead credible evidence in proof of each or every ingredient of the offence. This burden also includes leading evidence to rebut every defence raised by the accused. Accordingly where the prosecution fails to prove a single ingredient of the offence charged, the burden has not been discharged and the accused will be entitled to an acquittal. See ALABI v. THE STATE (1993) 7 NWLR (Pt. 307) Pg 511, UCHEGBU v. THE STATE (1993) 8 NWLR (Pt. 309) Pg. 89. This burden remains throughout on the prosecution and never shifts. See ABDULLAHI v. STATE (supra) at Pg. 216 – 217 and TANKO v. STATE (2008) 16 NWLR (Pt. 1114) Pg. 597.
That being so, for the prosecution to discharge the burden reposed on them in a charge of murder under Section 319(1) of the Criminal Code (supra), they have to lead credible evidence establishing the following:
(a) That there was a killing;
(b) That the killing was unlawful as coming under any of the circumstances enumerated under section 316 of the Criminal Code;
(c) That it was the act or omission of the accused which caused the death of the person killed; and
(d) That the act or omission of the accused which caused the death of the deceased must have been intentional, in that the accused had the knowledge that death or grievous bodily harm was the probable consequence of his action or omission. All the above stated ingredients must co-exist, and accordingly while one of them is absent or remain unproved, or tainted with doubt, the prosecution would have failed to prove the case of murder against the accused. This onus remains throughout the trial on the prosecution and never shifts.
This is moreso, in a charge of murder where the consequence of conviction is the highest known to our law, which is death. Care must therefore be taken, so that an innocent person is not mistakenly condemned to death on the basis of sentiments or speculation. For it is often said that its better for the society for ten guilty men to be set free than for one innocent person to be condemned. See ABOGEDE v. STATE (1996) 5 NWLR (Pt.448) Pg.270; OGBA v. STATE (1992) 2 NWLR (Pt.222) Pg.164; IGABELE v. THE STATE (2007) 2 N.C.C. Pg. 125; IDIOK v. STATE (2008) 13 NWLR (Pt.1104) Pg. 225; UWAGBOE v. STATE (2008) 12 NWLR (Pt. 1102) Pg. 621 and MAIYAKI v. STATE (2008) 15 NWLR (Pt. 1109) Pg. 173.
The type of evidence that may lead to a conviction of murder may flow from any of the following ways:
(a) The confessional statement of the accused which has been duly tested, proven and admitted in evidence.
(b) By circumstantial evidence which is complete, cogent and unequivocal and lead to the irresistible conclusion that the accused committed the offence charged.
(c) By direct evidence of eye witness(es) who actually saw the accused committing the offence.
See ILORI & ANOR. V. THE STATE (1980) 8-11 S.C. Pg. 81; IGABELE II v. THE STATE (2007) 2 N.C.C. Pg. 125 and EMEKA v. STATE (2001) 14 NWLR (Pt. 734) Pg. 666.
From the facts of this case as shown by the record of appeal, there is no dispute on the fact that one Master Anthony Ikechukwu Okoronkwo was killed on the 19/9/1996. There is no dispute also on the fact that the deceased died as a result of being decapitated, as his head was found with one Innocent Ekeanyanwu, while the body was exhumed at Otokoto hotel. The crucial issue now is whether any act or omission of the Appellant caused the said death. From the record, there is no evidence that the Appellant participated in the actual killing of the deceased. Accordingly, it would appear from the record that the prosecution, albeit the learned trial judge relied on circumstantial evidence in convicting the Appellant for the offence of murder charged. By this appeal the Appellant has sought to fault the findings of the learned trial judge that led to his conviction.
Generally, it does not require an eye witness account to convict an accused person for murder. If the charge can be proved through some other way, the law will not frown at it. The instant case against the Appellant is based on circumstantial evidence. For circumstantial evidence to form the basis for conviction, the circumstances must clearly and irresistibly suggest that the accused was the person who committed the offence and that no one else did. That being so, the circumstantial evidence required must not only be cogent and unequivocal, but must also lead to the irresistible conclusion that the accused did in fact committed the offence. The evidence must not leave any ground for reasonable doubt which doubt if it exists must be resolved in favour of the accused. In other words, where there are other possibilities in the case which are equally consistent with the innocence of the accused, such an accused person cannot be convicted of murder, as in such a case the trial court is entitled to hold that reasonable doubt has been created in the case of the prosecution, and such doubt should be resolved in favor of the accused. See ESAI & 3 ORS v. THE STATE (1976) 11 S.C. Pg.39; ADIE v. THE STATE (1980) 12 S.C Pg. 116; AKPA v. STATE (2008) 14 NWLR (Pt. 1106) Pg.72, ORJI v. STATE (2008) 10 NWLR (Pt. 1094) Pg. 31 and ISMAIL v. STATE (2008) 15 NWLR (Pt.1111) Pg. 593.
The findings of the learned trial judge against the Appellant who was the 4th accused person at the trial that is materially significant is at page 763-764 and 790 of the record of appeal. Significantly, the learned trial Judge found at page 763 – 764 and 790 of the record of appeal. Significantly, the learned trial Judge found at page 764 lines 3 – 9 of eth record as follows:
“P.W.10 Margaret Acholonu in her evidence stated emphatically that D.W.4 worked as a manager in Otokoto Hotel on the 19th and 20th of September, 1996. That he told them that his car got burnt about the 17/9/96, but that despite that, he was still coming to the hotel.”
The learned trial Judge after considering what he considered as discrepancies in the denial of the Appellant, disbelieved his defence of not being at the scene of crime. The learned trial judge then concluded at page 790 as follows:
“By the evidence of all the prosecution witnesses, they have proved that all the accused person did or omitted to perform a duty which the law expect of them.
It has been proved by the prosecution that the act or omission resulted in harm which subsequently resulted in the death of Ikechukwu Okoronkwo.
I find as fact that . . . . That . . . Rufus Anyanwu, 4th accused and … did or omitted to do an act for the purpose of enabling or aiding the murder of Ikechukwu Okoronkwo.”
I have carefully read the entire evidence led by the prosecution in respect of the allegation against the Appellant. The only evidence which learned trial judge relied on to convict the Appellant is that he was the manager Otokoto hotel at the time the crime was said to have been committed. That he had given instruction that no hawker be allowed into the hotel, but on the 19/9/1996, the victim of the alleged crime who was a hawker was lured into the hotel and subsequently killed. The finding of the learned trial judge is that he omitted to enforce the law as a result of which the said Anthony Okoronkwo was killed. It is clear from the evidence on the record that the Appellant was manager of the hotel where the deceased was killed and therefore he is presumed to have had knowledge of the killing of the deceased.
It is the law that a court of trial should base its decision on the legal evidence adduced before it. It should therefore not arrive at a presumption or conclusion based on mere speculation or suspicion as suspicion or speculation is not the duty of a court of law. See ORJI v. STATE (2008) 10 NWLR (Pt.1094) Pg.31 and ISMAIL v. STATE (supra) at Pg. 626.
In the instant case, apart from the evidence that the Appellant was manager at Otokoto Hotel and that he had given instruction that no hawker be allowed into the hotel, there was no other evidence linking him with the commission of the crime charged. None of the witnesses gave evidence of the role he played in the death of the deceased. To hold him party to the crime of murder committed in the hotel in which he is manager because a staff of the hotel broke or disobeyed an instruction he had given on hawkers will be dangerous to the administration of justice. There is no evidence to show that he was aware that Ekeanyanwu had lured the deceased into the hotel but consented to the act of Ekeanyanwu. There was no evidence that he lives in the hotel as to suggest that he knew or ought to know when the deceased was lured into the hotel. He was not the gate keeper as to suggest that he should know or ought to know all persons that enter the hotel.
Having found as above, it is clear that the learned trial judge was in error when he convicted the Appellant for murder on the evidence adduced before him. In the absence of direct evidence against him the Appellant or indeed cogent and compelling circumstantial evidence against him the learned trial judge appeared to have relied on the testimony of the Appellant. The learned trial judge held that because the Appellant gave inconsistent testimony, he had not proffered credible defence to the allegation against him. The law is that, the onus is always on the prosecution to lead credible evidence establishing every ingredient of the offence against the Appellant. Where they fail to do so, there will be nothing for which the accused could be called upon to rebut. This is so because under Nigerian law, the presumption of innocence enshrined in the constitution enures in favour of an accused person. The burden is therefore not upon an accused person to prove his innocence or that no crime was committed by him. It is therefore erroneous for a trial court to call upon an accused person to explain himself or prove facts especially within his knowledge, where there is no iota of evidence linking him with the commission of the crime charged. See STATE v. AZEEZ (2008) 14 NWLR (Pt. 1108) Pg. 439 at Pg. 503. Even if the learned trial judge was right in disbelieving the Appellant, the fact that he was at Otokoto hotel on the day of the incident is not sufficient, without more, to fix the Appellant with the commission of the murder charged. In that respect, it is my view which I hold that there was no evidence, direct or circumstantial linking the Appellant to the offence charged.
Now, issues 1 and 2 formulated by the Appellant deal with the issues of the defence of insanity raised by the Appellant and the findings of the Learned Trial Judge thereon. It is my view that having found that the prosecution failed to lead any credible evidence linking the Appellant with the crime charged, it is not necessary to consider whether or not the defence of insanity raised avails him. This is especially so because the defence of insanity presupposes that the Appellant committed the offence but there was no intention or mens rea on his part. In that respect, having found that the charge of murder against the Appellant has not been proved beyond reasonable doubt, it would amount to mere academic exercise to proceed to a determination on issues 1 and 2 formulated by the Appellant. That being so, it is obvious that this Appeal No: CA/PH/171A/2004 RUFUS ANYANWU v. THE STATE, has merit and is hereby allowed. Accordingly, I hereby set aside the conviction and sentence passed on the Appellant by the learned trial Judge. I accordingly order that this Appellant: Rufus Anyanwu be discharged and acquitted.
I now come to Appeal No. CA/PH/171B/2004: EBENEZER EGWUEKWE v. THE STATE. I had pointed out earlier that this is consolidated appeal. The brief facts that culminated in these appeals have been set out earlier in the course of this judgment. I therefore need not restate them here. It is only sufficient to state the Appellant; EBENEZER EGWUEKWE filed his Notice of Appeal consisting of five grounds of appeal. Those Grounds of Appeal without their particulars, as contained at page 194 of the record of appeal are follows:
1. Judgment is against the evidence.
2. The Learned Trial Judge erred in law in convicting the Appellant of the offence of murder for which he was charged.
3. The learned trial Judge erred in law in convicting the Appellant on suspicion and speculation that he, as the supervisor ought to know how the deceased was murdered.
4. The Learned Trial Judge erred in law in convicting the Appellant on circumstantial evidence, which was not cogent and which had other co-existing circumstances that weakened the inference if any.
5. The Learned Trial Judge erred in law in convicting the Appellant on the ground that there was a management policy of the Hotel that hawkers must not be allowed to come into the Hotel, and it was the duty of the Appellant to see that the policy was carried out and he failed to do it.
As required by the Rules of this court, the parties filed and exchanged briefs of argument. The Appellant’s brief of Argument was dated the 13/9/2004 but filed the 22/9/2004. The Respondent’s Brief of Argument filed by leave of this court was dated the 15/11/2006 and deemed filed on the 04/7/2007. The Appellant then filed a Reply to the Respondent’s Brief on the 04/7/2007. For the determination of this appeal, the Appellant formulated two issues for determination as follows:
1. Whether the prosecution has succeeded in proving beyond reasonable doubt the elements of the offence of murder against the Appellant as charged in the statement of offence.
2. Whether the circumstantial evidence against the Appellant was sufficiently positive, cogent, indisputable, strong, conclusive and points irresistible to the guilt of the Appellant as required by law.
The Respondent formulated only one issue for determination, which is:-
“Whether the prosecution proved the charge of murder against the Appellant beyond reasonable doubt.”
After a careful consideration, I am of the view that the two issues raised by the Appellant can be subsumed in the sole issue formulated by the Respondent. In that respect I propose to take the two issues formulated by the Appellant together.
Now, arguing the appeal, U.C. Osuji of learned counsel for the conceded Appellant that, it is not undisputed that one Master Ikechukwu Okoronkwo was dead. He however contended that, the prosecution failed to prove that his death was caused by the act or omission of the Appellant. After a brief resume of the persecution’s case against the Appellant, learned counsel submitted that, the evidence adduced against the Appellant does not show any direct evidence linking the Appellant to the charge-and therefore, the prosecution are relying on circumstantial evidence.
Learned counsel for the Appellant then, contended that, the prosecution must adduce cogent evidence linking the Appellant with the death of the deceased, either by a positive act or omission which caused injury to the deceased, which in turn resulted in the deceased’s death. He relied on the case of OWA v. STATE (1985) 3 NWLR (Pt.12) Pg.236 and NNUNUKWE v. STATE (2004) FWLR (Pt.201) Pg. 1784, to submit that, the judgment of the trial court was based on speculation, hunches, rumours and suspicion. That by the reason given by the learned trial Judge at page 761 lines 6 – 12 for convicting the Appellant, the learned trial judge shifted the burden of establishing the guilt of the Appellant beyond reasonable doubt to one of the accused/appellant proving his innocence, which is not the law. The case of AMALA v. STATE (2004) FWLR (Pt. 219) Pg. 1102 at 1128 was cited in support.
Learned Appellant’s counsel went on to submit that, as supervisor, the Appellant was not personally attached to any section of the hotel, but only intervenes where there is a report to him or where he personally notices any anomaly. That there was no evidence on the record to show that any report was made to him that any hawker came into the hotel or that he saw a hawker [deceased] came into the hotel premises but failed to act. Furthermore, that there is evidence on the record as shown at page 249 lines 20-25, that other workers live within the hotel premises who were not charged with the offence. That though the Appellant lives in the hotel premises, but he does not rive in the same building with Innocent Ekeanyanwu. It is also his submission that there is no evidence on the record showing that the Appellant omitted to do anything for the purpose of aiding the commission of the offence.
It also the contention of learned counsel for the Appellant that, Innocent Ekeanyanwu did not mention the name of the Appellant in any of Exhibit 21 and 36. That this fact was confirmed by the P.W.4 who interrogated the said Innocent Ekeanyanwu. He then submitted that, the learned trial judge rather relied heavily on the statements of the Appellant as D.W.3 and not the credibility of the evidence of the prosecution witnesses, whose duty it was to establish the guilt of the Appellant. That the learned trial judge therefore deliberately shifted the burden from the prosecution to the Appellant even when there is nothing to hold against him. Learned counsel then submitted that, the essential ingredients of the offence of murder was not proved against the Appellant as there is no evidence linking him with the offence charged.
I have carefully read the submissions of learned counsel for the Appellant on issue two, formulated by him. It is my view that the arguments therein are a restatement of his submissions on issue one. I therefore need not reproduce them at this stage. I may refer to same where necessary in the course of resolving the issues in this appeal. It will suffice at his stage to point out that, learned counsel contended that there is no cogent and positive circumstantial evidence led by the prosecution showing that the Appellant knew about the killing and burial of the deceased and that therefore the conclusion of the trial court that the Appellant as supervisor knew when, and how the deceased was killed is erroneous in law. Citing the cases of AMEH v. STATE (1978) 6-7 S.C. Pg.37; SHANDE v. STATE (2004) ALL FWLR (Pt. 223) Pg.1955 at 1969; SALA v. SATI (1938) 3 W.A.C.A Pg. 10; STATE, v. OGBUBUN.IO (2001) 2 A.C.L.R Pg. 527 and ADIE v. THB STATE (1980) ALL N.L.R Pg. 39, learned counsel submitted that, the circumstantial evidence led by the prosecution was weak, disputable, equivocal and incomplete. That in that respect, there was no basis in law to convict the Appellant for murder. We were therefore urged to allow the appeal and to discharge and acquit the Appellant.
Learned Director of Public Prosecution (D.P.P, Imo State) submitted that the ingredients that need be proved in a charge of murder are as stated in the case of AIGBANGBEE v. THE STATE (1998) 1 ACLR Pg. 168 at 206 and that the prosecution succeeded in proving that Master Anthony Ikechukwu Okoronkwo is dead. That his death was unnatural in that he was beheaded. Learned D.P.P. also agreed with the Appellant that the only contentious issue is whether the Appellant did or omitted to do something he has a duty in law that resulted in harm or injury to the deceased which caused his death.
It is also the submission of learned D.P.P for the Respondent that, it is clear from the testimony of the P.W.10 that, the Appellant was the supervisor at Otokoto hotel, the scene of crime. That the evidence also shows that, he had the duty to ensure that no hawker came into the hotel, and that he was on duty on the 19/9/96 when the incident happened. That he lives in the hotel, but he omitted to prevent the deceased from coming into the hotel so that he would be killed.
Learned P.P.P. then contended that the Appellant acted in concert with the other accused persons and therefore is a party to the offence. The case of ALAGBA v. R (1950) 19 N.L.R. Pg. 128 was cited in support. See also STATE V. EDEDEY (1972) 1 S.C. Pg. 140. That, in so far as the offence was committed, it is immaterial that the actual person who did the actual killing was not charged, so long as his act or omission can be tied to Section 7(a), (b), (c) and (d) of the Criminal Code. The case of FAYEMI v. A.G; WESTERN NIGERIA (1966) ALL N.L.R. Pg. 186 was further cited in support. We were then urged to apply section 149 Act (now Section 167 of the Evidence Act, 2011) to presume that the deceased was led through the gate of the hotel without the intervention of the Appellant so as to facilitate his death. It is the further submission of learned D.P.P. that the circumstantial evidence is clearly against the Appellant as the Appellant was the supervisor of Otokoto Hotel where the crime was committed, and was on duty on the day the crime was committed. That the Appellant had the duty to enforce the law prohibiting hawkers into the hotel, but failed to ensure that this directive was enforced. That the Appellant is directly under the control of Vincent Duru (alias Otokoto) who gave the directive to Ekeanyanwu to procure the head of a young male for him and his room is separated from that of Ekeanyanwu by only one room. That the headless body of the deceased was buried in a farm near the Appellant’s room. We were then urged to hold that the prosecution proved the case against the Appellant beyond reasonable doubt, as there is cogent, credible, compelling and uncontroverted circumstantial and direct evidence against him. Learned D.P.P. accordingly urged us to dismiss the appeal and uphold the decision of the trial court.
The Appellant filed a Reply to the arguments of Respondent. He contended therein that the fact that the Appellant lived within the premises of the hotel did not mean that he did something or omitted to do something that led to the death of the deceased. That there is no evidence that the attention of the Appellant was called to the presence of the deceased but failed to act. That, there is also no evidence that he was aware of the misconduct of Innocent Ekeanyanwu or any other staff but omitted to stop such misconduct or even aided or abetted. such act that led to the deceased’s death. That it is erroneous for Respondent’s counsel to import evidence that was never given at the trial and does not form part of the record of appeal. In that respect, he submitted that, there is no evidence on the record showing that the Appellant was present when groundnut was eaten or that the Appellant acted in concert with other accused persons to commit the offence charged. That to bring a person within section 7 of the criminal code, there must be clear evidence that either prior to or at the time of the commission of the criminal act, such person did something to assist or help or facilitate the commission of the offence. It is the submission of the Appellant that there was no evidence on the record which support the finding of the trial court on that issue.
On the submissions of the learned D.P.P. on Section 149 of the Evidence Act now (Section 167 of the Evidence Act 2011), learned Appellant’s counsel submitted that, the presumption contemplated by the section is outside what the learned trial judge presumed, as the presumption is full of equivocation, uncertainties, hearsay and rumours, which cannot suffice to establish any criminal charge on the standard required by law. That, it is clear that he Appellant was merely convicted for failing to say what role he played in the death of the deceased as supervisor of the hotel, the scene of crime.
Now, as held in Appeal No: CA/PH /171A/2004, in a criminal trial, the burden of proof is always on the prosecution to prove the guilt of the accused beyond reasonable doubt. That is so by virtue of the constitutional presumption of innocence which enures in favour of a person accused of having committed an offence. See also section 131, 132 and 135(1) and (2) of the Evidence Act, 2011. Accordingly before the prosecution can secure a conviction for a criminal offence which it alleges against any person, it must lead credible and cogent evidence establishing every element or ingredient of the offence charged. That being So, before a trial court can arrive at a decision to convict, or that an offence had indeed been committed by an accused person, it must look for the ingredients of the offence and ascertain critically that the acts or omission of the accused comes within the confines of the particulars of the offence charged. See AMADI & ORS v. STATE (1993) 8 NWLR (Pt.313) Pg.644. In that respect, a person cannot be convicted on mere suspicion, which is that act of suspecting or imagining of something without evidence, or slander or precarious evidence. Such evidence is unsafe, risky and uncertain as it is based on chance or speculation. To base a conviction on such evidence will not accord with the presumption of innocence guaranteed a person accused of having committed an offence under Section 36(5) of the 1999 Constitution (as amended), especially where the offence carries the ultimate penalty; which is death. See BOZIN v. THE STATE (1985) 2 NWLR (Pt. 8) Pg. 465; ONAH v. THE STATE (1985) 3 NWLR (Pt.134) Pg.627 and ALAKE & ANOR v. THE STATE (1991) 7 NWLR (Pt. 205) Pg. 567.
It should however be noted that, in law, where direct testimony of eye witness is not available or where the accused has not confessed to the commission of the offence, the court is permitted to infer from the facts proved, the existence of other facts that may be logically inferred, the guilt of an accused person. See IBINA v. STATE (1989) 5 NWLR (Pt. 120) Pg. 238. In the instant case, the learned trial judge relied on circumstantial evidence to convict the Appellant. This is borne by the statement of the learned trial judge at pages 1-3 of the record. Therein the learned trial judge held thus:
“This is a typical case where circumstantial evidence has proved a case of murder with the accuracy surpassing that of mathematics.”
Based on that circumstantial evidence, the learned trial judge held that the prosecution had proved the offence of murder against all the accused persons which included the Appellant, beyond reasonable doubt. It should be noted that, before an accused person can be convicted on circumstantial evidence, the evidence must be such that makes the commission of the crime charged certain and leaves no reasonable doubt that it was the accused that committed the offence. In other words, there must be cogent and compellable evidence linking the accused with the offence charged. There must be no reasonable grounds of the existence of any other explanation or hypothesis leading to no other inference or conclusion than that the accused committed the offence. Such evidence must emanate from the prosecution. See BELLO & ORS v. STATE (1994) 5 NWLR (Pt.343) Pg.177; ARICHE v. STATE (1993) 6 NWLR (Pt.302) PG. 752. LORI v. THE STATE (1980) 11 S.C. Pg.81 and OKORAH v. THE STATE (1977) 4 S.C. Pg. 167.
In the instant case, the parties are not in disagreement that the fact of death of one Ikechukwu Okoronkwo had occurred, and that such death was not natural death. Indeed, this fact is supported by the evidence, as it has been established that the victim was beheaded and the tip of his penis cut. The headless body was exhumed from the premises of Otokoto Hotel, while the head was recovered from Innocent Ekeanyanwu. The dispute now is whether there is evidence linking the Appellant with the commission of the crime.
A perusal of the record of appeal would show that the Appellant was found guilty of murder on the ground that he did or omitted to conduct his duty as supervisor of Otokoto Hotel with the intention of making it possible or easier for the deceased to be killed. This can be seen from the finding of learned trial judge at page 763 Paragraph 6 of the record of appeal, wherein he held that:
“A person who though did not commit the actual offence, but does or omits to do something for the purpose of making it possible or easier for others to commit the offence, is to be treated as the actual offender. See the case of STATE v. EDEDEY (1972) 1 S.C pg. 140”.
This holding of the learned trial judge falls squarely within the ambit of Section 7(b) of the Criminal Code.
Based on the above stated conclusion of the learned trial judge, I must point out that, one of the essential ingredients of the offence of murder is that, the prosecution must adduce cogent and credible evidence establishing the act or omission of the accused which caused the death of the deceased. This is a duty or onus cast on the prosecution by law and never shifts. That duty is not to prove that the act or omission of the accused could have caused the death of the deceased, but that it in fact did. See GABRIEL v. THE STATE (1989) 12 S.C.N.J. Pg. 33; ADEKUNLE v. THE STATE (1989) 12 S.C.N.J. Pg. 184; OGUNDIYAN v. THE STATE (1991) 4 S.C.N.J Pg. 44 and ONYENANKEYA v. THE STATE (1964) 1 ALL N.L.R. Pg.151.
That being so, to sustain a conviction for the offence of murder, as in the instant case, the prosecution must establish beyond reasonable doubt that, it was the act or omission of the Appellant that caused the death of the deceased. This burden must be discharged to the hilt. This court therefore has the duty to consider whether, from the evidence on the record, there was such evidence which satisfies the onus that the Appellant’s guilt for the murder of the deceased was proved beyond reasonable doubt. See OFORLETE v. THE STATE (2000) 7 NWLR (Pt.681) Pg.415. This burden lies throughout on the prosecution to discharge beyond reasonable doubt.
The evidence against the Appellant as disclosed in the record is that, he was the supervisor at the Otokoto hotel. That as supervisor, his duties included the supervision of the security men at the gate of the hotel, and that there was the hotel policy not to allow hawkers inside the hotel. The learned trial judge then posed the question, whether the guards on duty at the gate could be so bold and defiant as to allow hawkers into the premises in broad daylight in the presence of the supervisor without his knowledge. This the learned trial judge doubted. However, there is no evidence on the record to show that the security situation in the hotel was such that, it was not possible for any of the guards to breach security without the Appellant knowing of it. There is no evidence that a complaint of breach of security was reported to the Appellant as supervisor, but he failed or ignored to take action. There is also no evidence that a report was made to him on the 19/9/96 that a hawker had been lured into the hotel by Innocent Ekeanyanwu or that he counseled or encouraged the action of Ekeanyanwu in luring the deceased into the hotel. Indeed Innocent Ekeanyanwu did not say so in either Exhibit 21 or 36.
The learned trial judge also took into account the fact that the Appellant granted Innocent Ekeanyanwu permission to travel on the 19/9/96 and 20/9/96 when there was no evidence that the said Ekeanyanwu was concluded on leave. He then concluded that, this act suggests that the Appellant was not ignorant of what Ekeanyanwu was doing. I do not think that the act of granting permission to Ekeanyanwu to travel could be associated with knowledge on the part of the Appellant of the criminal intention of Ekeanyanwu in the absence of any cogent and concrete evidence of that fact. In any case, there is no evidence that the Appellant had no authority to grant Ekeanyanwu permission to travel. The conclusions of the learned trial judge on this issue are based on pure speculation and conjecture or hunches.
The learned trial judge also considered the denial of the Appellant that he did not know about the killing, burial and exhumation of the corpse of the deceased at the Otokoto Hotel, held it to be untrue. He then held that it is not natural in the normal course of event that the deceased could be killed and a grave dug and buried in the hotel without the knowledge of the Appellant who lived in the hotel. Here again there is no evidence on the record to contradict or controvert the denial of the Appellant. There is no evidence that it was nor possible for such events to happen without his knowledge. Indeed, there is evidence that there were other staff who also resides in the hotel, and that there were other guests in the hotel on the 19/9/96 but were not charged for the murder.
It is thus my view that the findings and conclusion of the learned trial judge was hinged on the fact that the Appellant as supervisor at Otokoto Hotel where the crime was committed is deemed to have knowledge of the killing of the deceased. There is no scintilla of evidence from the prosecution linking the Appellant with the commission of the offence. If there was such evidence, it was based on mere suspicion, speculation, rumour and conjecture. Such cannot amount to legal evidence. The circumstantial evidence relied on is therefore not cogent and credible enough to saddle the Appellant with criminal liability for murder. The circumstantial evidence does not read irresistibly to the conclusion that the Appellant is linked with the murder of the deceased. Such evidence may hold in the realm of speculation, but does not amount to proof as required by law. I therefore hold that this appeal has merit and is accordingly allowed. Accordingly, I hereby set aside the conviction and sentence passed on the Appellant. Consequently, I order that EBENEZER EGWUEKWU be discharged and acquitted.
APPEAL No: CA/PH/171C/2004 is VINCENT DURU (alias OTOKOTO) v THE STATE and is dated the 3/2/2003 and filed the 4/2/2003. It consists of eight (8) Grounds of Appeal as containable in pages 194E-194R of the Record of appeal. From the 8 Grounds of Appeal, the Appellant formulated 6 issues for determination as follows:
1. Whether the learned trial judge was right in convicting and sentencing the 7th Accused/Appellant for the offence of murder as charged when there were manifest material contradictions in the case of the prosecution.
2. Given the facts in this case and the evidence led at the trial including the exhibits tendered by the prosecution, was the learned trial judge right in stating in her judgment that she was not going to rely or consider Exhibits 21 and 36 tendered by the prosecution but turned round to rely on the contents of the said Exhibits to convict and sentenced the 7th Accused/Appellant.
3. Whether the learned trial judge was right in relying on purported “circumstantial evidence” to convict and sentence the 7th Accused/Appellant of the offence of murder in spite of the positive statement of Innocent Ekeanyanwu in Exhibit 21 that he personally killed the deceased i.e. Ikechukwu Okoronkwo.
4. Whether the learned trial judge was right in failing in her judicial duty to give considerations to the legal defence of alibi raised by the 7th Accused/Appellant in his statements to the Police both at the State C.I.D. Owerri, Imo State, Zone 6 police Headquarters Calabar and Force Headquarters, Lagos which were investigated by the various investigating police officers.
5. Whether the learned trial judge was right in admitting Exhibit 36 in evidence in spite of the objections to its admissibility by counsel to 7th Accused/Appellant.
6. Whether the learned trial judge was right in describing the 7th Accused/Appellant as an “unrepentant and hardened” murderer when the prosecution did not prove its case against him beyond reasonable doubt.
Learned D.P.P. Imo State for the Respondent nominated two issues for determination as follows:
A. Whether the prosecution did not prove beyond reasonable doubt the guilt of the Appellant.
B. Whether the defence of alibi raised availed the Appellant.
Those briefs of argument were filed and exchanged and the appeal was accordingly heard on the 20/1/12. I shall adopt the issues raised by the Appellant in the determination of this appeal.
On the 1st issue, Mr. J.C. Uwazuruonye of learned counsel for the Appellant began by reviewing the testimonies of the witnesses as he considers relevant to the determination of this issue. See pages 5 – 12 of the Appellant’s brief of argument. He then contended that the prosecution only used the Investigating Police officers from the State C.I.D. Owerri as witnesses and closed its case without calling as witnesses the Investigating Police Officers from Zone 6 and Force C.I.D., Lagos that completed the investigation. That this omission fundamentally affected the case of the prosecution leaving a yawning doubt in the case of the prosecution against the conviction and sentence of the Appellant. That the evidence of the Investigating police officers (I.P.O’s) from Calabar and Lagos were very vital to the case of the prosecution, and that the failure to call them was fatal to the case of the prosecution because they were vital prosecution witnesses whose evidence was material to be ignored by the prosecution. The cases of OPAYEMI vs. THE STATE (1985) 2 NWLR (Pt.5) Pg.101 at 114; REX v. GEORGE KUREE 7 WACA Pg. 175; REX v. ESSIEN 4 WACA Pg. 112; THE STATE v. AJIE (2000) FWLR (Pt.16) Pg.2831; THEOPHILUS v. STATE (1996) 1 NWLR (Pt.433) Pg. 139 and AKPAN v. THE STATE (1991) 3 NWLR (Pt. 182) Pg. 646 were cited in support.
It is also the contention of learned counsel for the Appellant that Exhibits 21 and 36 were tendered by the prosecution in the course of the proceedings. That in Exhibit 21 which is the first statement of late Innocent Ekeanyanwu, the said Ekeanyanmu admitted killing Ikechukwu Okoronkwo, but did not mention the name of the Appellant as the person who ordered him to kill the deceased, and that the PW9 who arrested and first interrogated Ekeanyanwu said the said Ekeanyanwu did not mention the name of the Appellant. It is the contention of learned counsel for the Appellant that, it was PW.11 who stated that Innocent Ekeanyanwu made a second statement to him, and which statement was admitted as Exhibit 36, but that none of the I.P.O.s’ who testified as PW1, PW2, PW3 and PW4 said that Innocent Ekeayanwu made a second statement. Learned counsel then submitted that the only recorded statement of late Ekeanyanwu made and known to all the police officers is Exhibit 21. He doubted the authenticity of Exhibit 36 on the ground that the PW11 did not take Innocent Ekeanyanwu to Otokoto Hotel immediately Exhibit 36 was made, and that the Appellant was not confronted with Exhibit 36 which incriminated him before Ekeanyanwu died in police custody on the 22/9/96.That even the Investigating Police team from Calabar and Lagos commented on the failure of the Investigating team from State C.I.D. Owerri to confront the Appellant with Exhibit 36 to enable him deny or accept same.
Learned Appellant’s counsel went on to submit that, despite those apparent cogent and revealing contradictions in the entire case prosecution, the learned trial judge replicated the facts contained in Exhibit 36, which were termed circumstantial evidence, and proceeded to convict the Appellant on it. We were then urged to hold that, the case of the prosecution was battered by obvious and glaring contradictions that no reasonable court or Tribunal can rely on to convict. That the law is that, material contradictions by the prosecution witnesses in a case cannot induce belief by the court, as such evidence must be treated as unreliable. The cases of ONUGBOGU v STATE (1974) 4 E.C.S.L.R. Pg. 403; OGOALA v. STATE (1991) 2 NWLR (Pt.175) Pg. 509 at 226 and YONGO v. C.O.P. (1992) 8 NWLR (Pt. 257) Pg.36 at 58 – 59 were cited in support. He also urged us to resolve this issue in favour of the Appellant.
The learned D.P.P. Imo state submitted on this issue that in proving its case against the Appellant and others the prosecution relied on circumstantial evidence. That through the unchallenged and uncontradicted evidence of the PW1 the prosecution proved that the Appellant used the Otokoto Hotel for criminal activities’ That Exhibits 1-7 recovered from Room 209 in the hotel were used by the Appellant as items of fraud. That the Appellant’s act is caught by section 7(d) of the criminal code and that the learned trial judge was therefore right in drawing the inference from the undiscredited evidence red by the prosecution as suggestive of guilt, and made it obvious that the Appellant knew why Ekeanyanwu was arrested. Learned D.P.P. submitted that this is so in view of the further uncontradicted and unchallenged evidence of PW2 that, on sighting Ekeanyanwu after his arrested asked; “have you implicated me’; but Innocent Ekeanyanwu only sat with his head bent down, without saying anything.
It is the further submission of learned D.P.P. for the Respondent that the conduct of the Appellant during the exhumation of the headless body of the victim of the crime charged attest to his guilt in that he showed no surprise when the headless body was exhumed but only sat on a chair watching the digging. Furthermore, that he merely denied knowing who farms on the portion of land the headless body was buried in.
It is the further submission of learned D.P.P. for the Respondent that Exhibits 21 and 36 were statements of an accused person not called as a witness to show that such statements were made. That the learned trial judge was therefore right in not using those exhibits in reaching his decision on the guilt of the Appellant.
Now, I had in the course of determining APPEAL NOS. CA/PH/171A/2004 and CA/PH/171B/2004 considered the essential ingredients of murder which the prosecution need prove before they can secure a conviction in charge of murder. I had also found that there was no direct eye witness to the killing of the deceased, and the Appellant in this appeal also did not confess to the commission of the offence charged. The only evidence available against the Appellant is therefore circumstantial. The legal requirements that need be satisfied before circumstantial evidence can be utilized to convict had also been considered in those two appeals. I adopt those principles in the determination of this appeal.
The Appellant made an issue on the failure of the prosecution to call as prosecution witnesses the Investigating Police Officers from Calabar Zonal Command and Force Headquarters. That such failure is fatal to the prosecution’s case. It is the law that, it is the duty of the prosecution to put in evidence all the facts of a case at its disposal before the court. The prosecution is however not required to call every available piece of evidence to prove its case. It is enough if sufficient evidence is called to discharge the onus of proof beyond reasonable doubt. In that respect, in an effort to prove its case, the number of witnesses to be called is entirely at the discretion of the prosecution, though in the exercise such discretion, the prosecution must call material witnesses in proof of their case. See ODILI V. THE STATE (1977) 4 S.C. Pg. 1; OKPALOR V. STATE, (1990) 7 NWLR (Pt.164) Pg. 581; KAREEM V. F.R.N. (2001) 49 W.R.N. Pg. 97 and ODUNEYE V. STATE (2001) 2 NWLR (Pt. 697) Pg. 311.
Where the prosecution fails to call such material witness or particular witness, the defence who feels that the testimony is vital to his defence is free to call such witness. See OGBODU v. THE STATE (1987) 3 S.C. Pg. 499 and EKPENYONG v STATE (1991) 6 NWLR (Pt.200) Pg.683. In a addition, it is not the law that, where the prosecution fails to call any vital witness or material witness’ a conviction must be quashed. Accordingly, a conviction in such a circumstance may yet be sustained where there are other evidence sufficient and convincing enough upon which the Appellant has convicted. In other words, there is no rule of law which says that once a particular witness is not called, it is fatal to the prosecution’s case. See OLABODE v STATE (2007) 2 N.C.C. Pg.711. In the instant case, the Appellant did not aver that he desired to call these Investigating Police Officers from Calabar and Lagos but was denied the opportunity of calling them. He did not also demonstrate how the non calling of those witnesses prejudiced his defence. In any case, there were other material evidence on the record on which the learned trial judge based his conviction. Sch evidence will be demonstrated in the course of this judgment.
It is also the contention of the Appellant that there were material contradictions in the prosecution’s case which ought to have been resolved in favour of the Appellant. For any contradiction in the testimony of the prosecution’s witnesses to affect the efficacy of the evidence led by the prosecution, it must be material contradiction. A material contradiction is that which goes to the root of the evidence of the witnesses, such that no reasonable court or Tribunal can rely on such evidence to convict. It is therefore fatal to the case of the prosecution, as in such a situation, it would be safe for the trial court to conclude that the prosecution has failed to prove its case beyond reasonable doubt. See OBIDIKE v THE STATE (2002) FWLR (Pt.87) Pg.784; ONUBOGU v THE STATE (1974) 9 S.C. Pg.1; IJEOMA v THE STATE (1990) 6 NWLR (Pt.158) Pg.567 and ATEJI v TI|E STATE (1976) 2 S.C. Pg. 79. A party who complains about contradictions in the evidence of the prosecution has the duty to demonstrate to the court the specific contradictions complained of. This is in order to afford the court the opportunity to treat and decide fairly on counsel’s submission. It would thus serve no useful purpose to denigrate the evidence presented by the prosecution without more. The complaint and submissions of counsel must therefore dwell on specifics, otherwise, it would remain what it is, empty proposition. See UDOEBERE v THE STATE (2001) 27 W.R.W. Pg.119.
In the instant case, the only contradiction pointed out by the Appellant hovered on the admissibility of Exhibits 21 and 36 and the testimony of PW10 (Mrs. Margaret Acholonu). Having perused the record of proceedings and especially the testimony of the PW10, I am of the view that the issue of admissibility of Exhibits 21 and 36 was settled by the trial judge on the ground that they were relevant to the proceedings by virtue of sections 6, 7 and 5 of the Evidence Act, Laws of the Federation, 1990 (now sections 1, 4 and 5 of the Evidence Act, 2011). The Appellant has not challenged this finding of the trial court, as he has not contended in this appeal that those exhibits are not relevant and so the decision of the trial court is erroneous. Furthermore, the contradictions pointed out by the Appellant on the testimony of the PW10 relate to the time the Appellant was at the Otokoto Hotel. This would be relevant only if it is relevant to the defence of alibi raised by the Appellant. That will be considered under issue 4. For now, it is my finding that the Appellant failed to point out any contradiction strong enough to sustain his contention. There is also no other relevant issue pointed out by the Appellant that amounts to a material contradiction’ This issue is therefore resolved in favour of the Respondent.
On issue two’ learned counsel for the Appellant submitted that, in law, facts in issue in a case can be proved by either oral or documentary evidence as required by sections 76 and 93 0f the Evidence Act, 1990. That when documentary evidence is tendered for the purpose of proving a fact in issue, the trial court must consider the document in order to determine its probative value. That it is moreso if it is tendered by the prosecution and its contents will form the basis for the defence of an accused person charged with an offence. Learned counsel then contended that Exhibits 21 and 36 were tendered and admitted despite objections from the defence and the prosecution relied heavily on the contents of those Exhibits as confessional statements made by rate Innocent Ekeanyanwu and which statement implicated the appellant in the murder charged’ After quoting the state of the learned trial judge at page 75 lines 7-13 in respect of Exhibits 21 and 36, learned Appellant’s counsel submitted that the trial court however took a position inconsistent with that at page 97 of the Record on the admissibility of Exhibit 21.
It is also the submission of learned counsel for the Appellant that from the onset, the learned trial judge had decided not to consider the legal effect of Exhibits 21 and 36 on the Appellant and that this red to a miscarriage of justice. That’ contrary to the stand of the learned trial judge at page 75 lines 25-34 and 752-754 of the Record, he still went ahead to make wrong inferences and beliefs which were not supported by facts. He went on to submit that, the inference drawn by the trial judge of the Appellant sending Innocent Ekeanyanwu to deliver human head to the 6th Accused/Appellant from Exhibit 36 is wrong when the said Exhibit was ab initio inadmissible and its contents unreliable.
Learned counsel for the Appellant further contended that another speculative and injudicious inference the trial court made is in respect of the statement credited to the PW1, as to the reaction of the Appellant when he saw the late Ekeanyanwu in company of the police at Otokoto Hotel. That the learned trial judge did not consider the testimony of DW10 in relation to what Ekeanyanwu did when he saw the Appellant. He then submitted that from the testimonies of DW10 and DW11, there was no evidence upon which the trial court could draw the inference of guilt of the Appellant from the testimony of DW1. That if it were true that the Appellant sent the late Ekeanyanwu to kill, the late Ekeanyanwu would have told the Appellant to his face, going by the natural course of human conduct or events. He then urged us to answer this issue in favour of the Appellant.
On this issue, it is the contention of the learned D.P.P. for the Respondent that PW1 stated in his cvidence that while he was guarding the late Ikeanyanwu when they went to conduct a search at the Otokoto Hotel, the Appellant walked up to them and asked the late Ekeanyanwu twice, whether he had implicated him. That this piece of evidence was neither challenged nor controverted and the Appellant is therefore caught by section 7(d) of the Criminal Code. Learned D.P.P. then submitted that the learned trial judge was right in making the inference of the Appellant’s guilt from the undiscredited evidence of PW1 as suggestive of guilt of the Appellant, and that it made it obvious that the Appellant knew why Ekeanyanwu was arrested.
It is on the record of appeal that Innocent Ekeanyanwu was arrested at a roadblock with a fresh human head. That immediately he was arrested, he admitted killing the deceased. Consequently, he made Exhibit 21 at the State C.I.D. OWERRI but did not mention the Appellant as the person who sent him to kill the deceased and deliver the head to the 6th Accused. It was in Exhibit 36, that he stated explicitly how the Appellant directed him to kill the deceased and to deliver the head to Leonard Unogu alias Ochiriozuo. It is also not disputed that the said Innocent Ekeanyanwu, the maker of the statement died under police custody before the matter was heard. It is the law that, when more persons than one are jointly charged with a criminal offence, and one of them makes a confession, and such a statement is given in evidence, the court shall not take such statement into consideration against a co-accused unless such co-accused adopts it. See OZAKI V. THE STATE (1990) 1 NWLR (PT.124) Pg. 92, OGUGU V. THE STATE (1990) 2 NWLR (Pt. 134) Pg. 539 and KASA V. THE STATE (1994) 5 NWLR (Pt. 344) Pg. 269. See section 29(4) of the Evidence Act, 2011.In the instant case, the confessional statement Exhibits 21 and 36 were made by Innocent Ekeanyanwu who was charged jointly with the Appellant, but died in police custody. There is no evidence nor has it been alleged that the statement was made in the presence of the Appellant or that he adopted same. Accordingly, under section 29(4) of the Evidence Act, 2011, Exhibits 21 and 36 cannot be taken into consideration against him.
It should be noted however that, under section 30 of the Evidence Act, 2011, where information is received from an accused person, whether he is in custody or not, and as consequence of such information received from the accused, any fact is discovered, the discovery of that fact together with evidence that such discovery was made in consequence of the information, it may be given in evidence where such information would not be admissible in evidence. Section 30 of the Evidence Act, therefore allows evidence of the discovery of the fact and of the discovery being a result of information given by the accused. So long as the fact discovered is relevant, evidence of it is admissible evidence irrespective of its source. This is so because, the test of admissibility of evidence is its relevance to matters in issue. If it is relevant, it is admissible and the court is not concerned with how the evidence was obtained. The weight to be attached to such admitted evidence is a different matter from its admissibility. See SADUA & ANOR. V THE STATE (1968) NWLR Pg.208 and OSHUNRINDE v AKANDE (1996) 6 S.C.N.J. Pg.193.
In the instant case, the late Innocent Ekeanyanwu made a statement which was admitted in evidence. Based on that statement, the role prayed by the Appellant in the death of the deceased was clearly and unequivocally stated. Based on such statement, certain discoveries were made in the course of the investigation. True enough, the learned trial judge expressed the view that he would treat Exhibit 21 and 36 with caution in the determination of the guilt of the Appellant. He stated thus:
“For the purpose of this Judgment, I will concentrate on other evidence before me, excluding Exhibits 21 and 36 in the determination of the guilt or in violence of the accused persons. If in the course of doing so, and as events unfold, it becomes inevitable to look at Exhibits 21 and 36 as I have been called upon to do by the prosecution, I shall look at it, and no more.”
The learned trial judge reproduced Exhibits 21 and 36 and then proceeded to look at the evidence adduced against each of the accused persons including the Appellant. It is clear that the learned trial judge did not shut himself out completely from utilizing Exhibits 21 and 36. If anything, the record shows clearly that the learned trial judge relied on facts and evidence discovered as a result of the statements in Exhibits 21 and 22. The learned trial judge in my opinion acted within his powers and correctly evaluated and ascribed probative value to the evidence adduced before him. This issue is therefore resolved in favour of the Respondent.
On the third issue, learned counsel for the Appellant submitted that circumstantial evidence is irrelevant in murder trial, where there is evidence of admission of the person who actually committed the offence. He cited the case of MOHAMMED ABACHA v. THE STATE (2002) 11 NWLR (PT.779) Pg. 437 at 521. That applying the above principle it is clear that from Exhibit 21, which was the first recorded statement of late Innocent Ekeanyanwu, he had admitted killing the deceased. That Exhibit 21 being the confessional statement of late Ekeanyanwu, made at the earliest opportunity when he was caught with a human head, is further corroborated with the testimony of P.W.9, when he said that Ekeanyanwu told him that he killed the deceased. That P.W.1 and P.W.4 said that Ekeanyanwu told them that he killed the deceased. Learned counsel then submitted that, it is clear from the pieces of evidence of those prosecution witnesses and Exhibit 21 that it was Ekeanyanwu who killed the deceased.
Learned Appellant’s counsel went on to submit that what the learned trial judge did was to indirectly use the contents of Exhibit 36 as “circumstantial” evidence without pronouncing on the invitation of the Appellant not to act on same, as it was inadmissible. He relied on the cases (NIG.) LTD. (2001) FWLR (Pt.44) Pg.421 at 439 and OKORO V. THE STATE (1988) NWLR (Pt.584) Pg.181 to submit that, it is the law that where direct evidence is not available, circumstantial evidence which is cogent and points irresistibly at the accused is admissible to support a conviction. The cases of STATE V. OGBUBUNJO (2001) 2 A.C.L.R. Pg. 527; FATOYINBO V. A.G. WESTERN NIGERIA (1966) W.N.L.R. Pg. 4 and ATANO V. A.G. BENDEL STATE (1988) 2 NWLR (Pt.75) Pg.201 were further cited in support. That in the instant case, there are abundant direct evidence from the prosecution witnesses that it was the late Innocent Ekeanyanwu that personally killed the deceased and therefore the recourse by the learned trial judge to circumstantial evidence to convict the Appellant was wrong.
Relying further on the cases of ADIE V. THE STATE (1980) ALL N.L.R. Pg. 39; SALA V. SATI (1938) 3 W.A.C.A. Pg. 10; LORI & ANOR. V. THE STATE (supra); ESAI & ORS. V. THE STATE (1976) 11 SC Pg. 39 and OMOGODO V. THE STATE(1981) 5 SC Pg. 5. Learned counsel submitted that the inferences and conclusions made by the trial court on the evidence led by the prosecution to convict the Appellant are wrong and not based on the evidence led at the trial. That by those inferences, the learned trial judge, was on a voyage of speculation which is not within the province of a criminal trial. He then submitted that the learned trial judge therefore failed to realize that those cloudy and doubtful inferences can never lead to the conclusion of guilt.
Learned D.P.P. for the Respondent submitted that the learned trial judge was right in drawing the inference from the undiscredited evidence of the prosecution which suggests the guilt of the Appellant. Learned Respondent’s counsel further submitted that the learned trial judge was right in drawing the inference of guilt from the conduct of the Appellant immediately he set his eyes on Innocent Ekeanyanwu at Otokoto Hotel when the said Ekeanyanwu was taken to the hotel by the prosecution for investigation. That the conduct of the Appellant during the exhumation of the headless body in his hotel premises also point to his complicity in the murder charged.
Learned counsel for the Respondent further submitted that, the prosecution proved beyond reasonable doubt that the Appellant concealed the burial of the headless body of the deceased in the cassava farm inside Otokoto hotel, and which farm is cultivated by the wife of the Appellant. We were then urged to discountenance the submissions of the learned counsel for the Appellant.
Now’ the law on circumstantial evidence has been briefly stated in the course of determining Appeal No. CA/PH/171A/04 and CA/PH/171B/04. I adopt same in the determination of this appeal. I only wish to add that, the determination of guilt were circumstantial evidence is relied on is a matter of fact. Accordingly, in the determination of those facts, a trial court should carefully review and appraise the evidence led, the circumstances proved, any series of co-incidences established, the various statements made by the Accused/Appellant and then exercise its commonsense by taking into account what inferences a reasonable man would draw from the totality of the evidence led and all the surrounding circumstances of the case. The main thing is to find out whether the inferences that the accused killed the deceased can be safely drawn from the facts and circumstances proved or whether there are other co- existing circumstances which would weaken or destroy the inference. This principle is moreso, when such evidence is circumstantial. Surely there was no direct testimony of any eye witness against the Appellant. He did not confess to the crime either, so the evidence used against him is circumstantial.
In arriving at his decision, the learned trial judge considered the denial of the Appellant. The learned trial judge then held as follows:
“The 7th accused person, Chief Vincent Duru alias Otokoto testified as DW11. He was the Managing Director of Otokoto Hotel.
He denied ever meeting the 6th accused Leonard Unogu before this case. He also denied procuring and or counseling Innocent Ekeanyanwu to kill and bring him a human head and the tip of his penis. He denied sending Innocent Ekeanyanwu to their customer; or having anything whatsoever to do with the murder of Ikechukwu Okoronkwo.
His defence was hinged mainly on his claim that on the 19/9/96, he was at Okigwe and on the 20/9/96, he was at Owerri and on the 20/9/96 he was at Owerri Prison.
He denied asking Innocent Ekeanyanwu several times if he had implicated him.”
After considering the specific denials of the Appellant, he disbelieved him. The position of the learned trial judge appears to me to be built on the statement of Innocent Ekeanyanwu in Exhibit 36, wherein he stated that:
“Further to my previous statement made earlier today 20/9/96, i now want to say the truth of what happened between me and the deceased… When the boy dey sleep, I go tell our Director, Chief Vincent Duru that we don get one small boy which he said we should look for. He then directed me to kill him as we dey kill before and cut off the head and the penis and bring to him…
After cutting off his head, I also cut off the boy’s penis. After cutting off the boy’s head and part of his penis, myself, Sampson Nnamito and Alban Ajaegbu dig small grave and put the boy’s body inside the grave. I then go to the Director, Chief Vincent Duru and inform him that we have killed the boy. The Director, Chief Vincent Duru followed me to the bush where the body was already in the grave. As the Director reached there and saw the body in the grave he said “well done” and asked me where is the head and part of the penis. I showed him the two parts. The Director, Chief Vincent Duru took the penis, and told me to take the head to our customer Mr. Leonard Unogu alias Ochiriozuo. After giving this order, the Director, Chief Vincent Duru stood by and watched us cover the grave with sand. We did not remove the boy’s shirt and some coins in his pocket.”
I had held earlier in the course of this judgment that the statement of Innocent Ekeanyanwu could not be utilized against the Appellant who did not adopt same. However, in the cause of the investigation, and in consequence of the information contained in Exhibit 36, the headless body of the deceased with the head of the penis cut off was found buried in Otokoto Hotel where the Appellant is owner and Managing Director. The said body was found buried and exhumed from a farm within the premises of the hotel, and which farm is cultivated by the wife of the Appellant. It is also in evidence that Leonard Unogu who was to take possession of the head was known to the Appellant but he denied knowing the said Leonard Unogu. The learned trial judge was right in concluding that the Appellant’s denial of knowing Leonard Unogu was to show that he could not have sent Ekeanyanwu to deliver any human head to him. I also agree with the learned trial judge that the conduct of the Appellant from the evidence on record betrayed the behavior of a person who knew why Innocent Ekeanyanwu was arrested without his being told. In the normal cause of human conduct, his reaction at seeing Ekeanyanwu in such circumstance was to ask the reason for his arrest. I am therefore of the firm view that the learned trial judge drew the right inferences and also came to the right conclusion on the guilt of the Appellant. This issue is also resolved in favour of the Respondent and against the Appellant.
The 4th issue to be determined in this appeal deals with the issue of alibi raised by the Appellant. Accordingly, learned counsel for the Appellant contended that in Exhibit 37, which is the statement of the Appellant to the police, the Appellant raised the issue of alibi as to where he was on the 19/9/96 and 20/9/96. That this defence of alibi ought to have been given adequate consideration by the trial court. He referred copiously to the statement of the Appellant in Exhibit 37 to further submit that, it is clear from the evidence contained in the said Exhibit 37 that the Appellant had discharged the burden placed on him by law by supplying to the police every detailed particulars relating to his movements at the time the offence was committed. That contrary to the practice, the police refused and failed to investigate the alibi raised timeously by the Appellant and that this failure occasioned a miscarriage of justice. That the reason given by the PW11 for the failure of the police to investigate is absurd and cannot be supported by the evidence. Learned counsel then proceeded to make a very lengthy submission on the issue of alibi spanning pages 37 -49 of the brief of argument to submit that failure on the learned trial judge to consider the defence of alibi raised by the Appellant in Exhibit 37 in view of the express admissions of the Investigating police officers that they did not investigate the alibi is a failure to perform a monumental legal duty.
Learned Appellant’s counsel then cited the cases of CHUKWU v. THE STATE (1996) 7 NWLR (Pt.463) Pg.683; ONUCHUKWU v STATE (1998) 4 NWLR (Pt.547) Pg.576; HAUSA v STATE (1994) 6 NWLR (Pt.350) Pg.28 among others to submit that, it is clear from the evidence, led by the prosecution, that the police failed woefully to investigate the alibi set up by the Appellant. He went on to submit that the learned trial judge erroneously held that the Appellant waited till the 22/11/96 before he raised his alibi. That if the learned trial judge had painstakingly read Exhibit 37 made by the Appellant on the 27/9/96, he would have come to a different conclusion. That in Exhibit 32 made to the police on 20/9/96, immediately after his arrest, he denied committing the offence as charged.
Learned D.P.P. for the Respondent relied on the cases of EBENCHI v THE STATE (2009) 170 LRCN Pg.91 at 101 and UDOEBERE & ORS. v THE STATE (2008) 5 FWLR (Pt.59) Pg. 1244 to submit that the Appellant did not raise any defence of alibi in his first statement to the police made on the 20/9/96 which the prosecution tendered as Exhibit 32. That the statement was made on the 20/9/96. That is a trite law that for one to plead alibi as a defence, he ought to do it at the earliest opportunity, and that Exhibit 32 being a statement made by the Appellant at the earliest opportunity when the facts of the case were still fresh in his mind was devoid of alibi. That any statement made subsequently pleading alibi is at best an after-thought and therefore Exhibit 37 which is a statement made seven days after his first statement (Exh.32) when he pleaded alibi is an after-thought. We were then urged to hold that the learned trial judge was right when he considered the alibi raised by the Appellant as an after-thought.
It is also the submission of learned D.P.P. for the Respondent that, with the credible circumstantial evidence of the prosecution which has fixed the Appellant at the scene of crime on the 19/9/96, his plea of alibi naturally and legally collapsed. The case of NJOVENS v STATE (1973) 1 N.M.C.R. pg.31 was cited in support. That in any case, the plea of alibi raised by the Appellant has nothing to do with the prosecution’s case, which is that the Appellant procured and or counseled the killing of the deceased. It was then submitted that in the circumstance, whether or not he was around the Otokoto Hotel on the day the deceased was killed has no evidential value. Learned D.P.P. accordingly relied on section 7(d) of the Criminal Code and the case of R v OKPALU (1935) 2 W.A.C.A. Pg.345 to submit that the plea of alibi does not Appellant avail the Appellant in the circumstances.
Now, alibi is a complete defence which has the capacity to totally exonerate an accused person from the charge preferred against him. The word “alibi” simply means “elsewhere”. It simply means if raised as a defence, that the accused was elsewhere other than the scene of crime alleged, and therefore having regard to the time and place, when and where he was alleged to have committed or participated in the commission of the offence, he could not have been present. In that regard, since the facts constituting the alibi raised are within the peculiar knowledge of the accused, and such witnesses that he may provide in support of his plea of alibi, he has the evidential burden to disclose those facts. Such disclosure must be made at the earliest opportunity so as to transfer the burden to the police to investigate. See OCHEMAJE v. THE STATE (2008) 15 NWLR (Pt. 1109) Pg.57; NDIDI V. THE STATE (2005) 17 NWLR (Pt. 953) Pg.17; TANKO V. STATE (2008) 16 NWLR (Pt. 1114) Pg. 597; AFOLALU V. THE STATE (2009) 3 NWLR (Pt. 1127) Pg.160 and NDUKWE V. THE STATE (2009) 2-3 S.C. (Pt.11) Pg.35. The burden placed on the accused to establish the alibi is not as heavy as that cast on the prosecution to prove his guilt beyond reasonable doubt. The standard will be discharged on the balance of probabilities.
That being so, once the accused raises the defence of alibi timeously, and with full particulars, the burden shifts to the prosecution to investigate in order to verify such claim. Thus, where the prosecution fails to investigate same, the court will be right to hold that the prosecution has failed to prove its case beyond reasonable doubt. It would then mean that an essential element of the offence charged would have been missing, and therefore, it cannot be said that the accused committed or participated in the commission of the offence. See AZEEZ v STATE (2005) 8 NWLR (Pt.927) Pg.312; AJE v. THE STATE (2006) 8 NWLR (Pt. 982) Pg. 345; DAGAYYA v. THE STATE (2006) 7 NWLR (Pt.980) Pg.637 and NDUKWE V. THE STATE (supra) at Pg. 82.
In the instant case, the evidence on the record shows that the Appellant was arrested on the 20/9/96 and he immediately made a statement to the police. Such statement is in evidence as Exhibit 32. See pages 873-874 of the record of appeal. Therein the alibi presented to the court was not raised in that statement. Therein the Appellant merely denied knowledge of the act of Innocent Ekeanyanwu. Specifically he said:
“I am the Managing Director of Otokoto Hotels Group of Companies. My manager is Ebenezer Egwuekwe before I reached the Hotel today, I visited my son Vincent Duru at Owerri prisons. I was at the Hotel yesterday. The manager is in charge to know who is present and who is absent.”
It is therefore clear that he admitted being at the hotel yesterday; which is the 19/9/96, the day the deceased was killed. His visit to the Owerri prison was therefore not on the 19/9/96, but on the 20/9/96, the day he was arrested. This contradicts his assertion in Exhibit 37 that he visited Owerri prison on the date of the incident. Furthermore, Exhibit 37 wherein he raised the alibi was made on the 27/9/96, which is seven days after his arrest and detention. Therein he stated that he went to Okigwe to see the Divisional police officer (D.P.O.) on the 19/9/96 and only arrived Otokoto Hotel at about 5.30p.m and left at about 6.15p.m. The learned trial judge held that the alibi raised therein was an afterthought. Truly Exhibit 37 was not made timeously so as to afford the police the opportunity to investigate. The Appellant had all the time to formulate his story. If he was not at Otokoto Hotel on the 19/9/96, as he wants this court to believe, he should have said so immediately he was arrested on the 20/9/96, but waited till after seven days to say so. The learned trial judge was therefore right in disbelieving the alibi raised by him. In any case, the evidence against him is not that he personally killed the deceased or that he participated in the actual killing. Rather, it is that he procured or counseled Innocent Ekeanyanwu to do the killing. Accordingly, whether or not he was physically present at Otokoto Hotel on the day of the incident will not make any difference. This issue is therefore, resolved also, against the Appellant.
The 5th issue formulated by the Appellant is whether the learned trial judge was right in admitting Exhibit 36 in evidence. This issue has been considered while resolving issue number two. Therein, I had resolved and held that Exhibit 36 was rightly admitted in evidence as a relevant fact under Sections 1, 4 and 5 of the Evidence Act, 2011. Furthermore, any fact or information discovered as a result of information received from a person accused of offence, any fact so discovered in consequence of such information, may be given in evidence when such information would not of itself be admissible in evidence. Exhibits 21 and 36 which are statements received from Innocent Ekeanyanwu are therefore relevant facts under Sections 1, 4 and 5 of the Evidence Act, 2011. The learned trial judge was therefore right in admitting Exhibit 36 in evidence as a relevant fact under Sections 6, 7 and 8 of the Evidence Act, 1990 (now sections 1, 4 and 5 of the Evidence Act, 2011). This issue is also resolved against the Appellant.
The 6th and last issue within this appeal asks whether the learned trial judge was right in describing the Appellant in his judgment as “unrepentant” and “hardened” murderer when the prosecution did not prove its case against him beyond reasonable doubt. I have determined that the prosecution proved its case against the Appellant beyond reasonable doubt and thus affirmed the decision of the trial court that the Appellant is guilty of the offence of murder. I do not see how that statement of the learned trial judge affected his findings on the guilt of the Appellant. Accordingly, a decision on it by us will be of no utilitarian value to the Appellant as it has no bearing on the finding of the learned trial judge as to his guilt or innocence. In my view the statement credited to the learned trial judge was a mere obiter and does not consist of the reason for his decision. In other words, that statement of the learned trial judge was merely obiter and therefore is not part of the reasons or ratio for his decision. It is trite law that an appeal is against the ratio decidendi of the case and not on a mere expression or remark made by the way by a judge in the course of his judgment.I am of the view that, that statement, which is a mere obiter dicta cannot now form the basis of an appeal. This issue and the ground from which it is formulated are not competent. Same are accordingly discountenanced.
On the whole, having resolved all the issues against the Appellant, it is clear that this appeal has no merit. It is hereby dismissed. Accordingly, I affirm the conviction of the Appellant for murder by the learned trial judge and the sentence of death passed on him.
APPEAL NO: CA/PH/171D/2004 is ALBAN AJAEGBO v THE STATE. The said Notice of Appeal is dated the 23//11/20l0 and deemed filed the 17/11/2011 by leave of court granted the 17/11/2011. The Grounds of Appeal are as follows:
1. The learned trial judge erred in law when he concluded that “the complete denial by the 1st accused DW1 of those events that would expose his involvement in the murder of Ikechukwu is suggested (sic) of deliberate falsehood.”
PARTICULARS
(i) The Appellant denied participation in the crime in issue.
(ii) The law do not (sic) allow speculation even for circumstantial evidence.
(iii) There was no evidence of Appellant’s involvement in the crime.
2. The learned trial judge erred in law in failing to properly consider the defence of the Appellant.
PARTICULARS
(i) The Appellant properly raised his defence denying participation in the crime.
(ii) The learned trial judge in consideration of Appellant’s defence was scanty and sentimental.
(iii) There was no evidence linking the Appellant directly to the crime.
3. The judgment is against the weight of evidence.
From the three grounds of appeal, the Appellant formulated two issues for determination as contained in page 2 of the Appellant’s brief of argument dated the7/12/2011 and filed the 8/12/2011. They are as follows:
1. Whether the conclusion of the learned trial judge that the denial of the Appellant in the murder case amount to falsehood in itself will not amount to speculation, suspicion and sentiments in law?
2. Whether the learned trial judge could be said to have properly considered the Appellant’s defence?
The Respondent filed a brief of argument dated and filed the 18/01/2012. Therein, one issue was formulated by the Respondent for determination as follows:
“Whether the judgment of the trial court was perverse.”
I propose to adopt the issues nominated by the Appellant as the sole issue nominated by the Respondent adequately encapsulates the two issues formulated by the Appellant. It suffices to state that this appeal was heard on the 20/1/2012 when the parties adopted their respective briefs of argument as their arguments in this appeal.
Arguing on issue one, learned counsel for the Appellant contended that, the conclusion reached by the trial court that the denial of the case of murder by the Appellant makes him to believe that the Appellant’s denial amounts to falsehood cannot be protected by the evidence on record, nor was there any cogent evidence to sustain such conclusion. He referred to the statement of the learned trial judge at page 755 lines 7-25 of the record of appeal, to submit that, what weighed heavily in the mind of the learned trial judge do convict the Appeal are that, he ate cooked groundnuts and that he did not mention seeing people eat cooked groundnuts. That it is illegal to conclude that once the Appellant ate cooked groundnuts on the fateful day, he participated in the murder case.
It is the further submission of learned Appellant’s counsel that the case presented against the Appellant is circumstantial. That on the authority of JOSEPH LORI v THE STATE, (1980) 2 N.C.R.P. 225 at 229, the inferences drawn by the learned trial judge on the guilt of the Appellant is far from being capable of proof on the basis of any proposition with the accuracy of mathematics, rather the inferences amounted to speculation, suspicion and sentimental. He then referred to the statement of the learned trial judge at page 755 lines 26-32 and 756 lines 1 – 29, to submit that, because the Appellant could not remember certain events could not justify the conclusion reached by the trial court that the Appellant made those denials so as not to expose his involvement in the murder of the deceased. He then relied on the cases of STATE v OGBUNBUNJO (2002) 2 A.C.L.R. Pg.527 at 538; FATOYINBO v A.G. WESTERN NIGERIA (1966) W.N.L.R. Pg.4 and ATANO v A.G. BENDEL STATE (1988) 2 NWLR (Pt.75) Pg.201, to submit that, the inferences to be drawn from the circumstantial evidence must not be based on suspicion, sentiment or speculation but cogent and pointing irresistibly and unequivocally as well as compelling to suggest that the Appellant committed the offence charged. That the evidence available against the Appellant is capable of two interpretations and cannot therefore be said to be capable of proving the guilt of the Appellant with the accuracy of mathematics.
Learned counsel for the Appellant then concluded that the conviction of the Appellant ought not be allowed to stand in view of the over-whelming lack of prove by circumstantial evidence. He then cited the cases of LORI v STATE (1980) 8-11 S.C. Pg.81; LIWE ESAI & ANOR v THE STATE (1976) 11 S.C. Pg.39 and OMOGODO V. THE STATE (1981) 5 S.C. Pg.5 at 34, to contend that, the decision of the learned trial judge on this scanty evidence has caused miscarriage of justice wherein an innocent man is about to die for an offence he is speculated to have committed.
The learned D.P.P. for the Respondent contended that, the judgment does not run counter to the evidence adduced at the trial. That the prosecution proved that the Appellant was sharing a room with Innocent Ekeanyanwu and the 2nd accused person within the Otokoto Hotel where he worked. That, the headless body of the deceased was exhumed where it was buried in a farm cultivated by the wife of the 7th accused (3rd Appellant), which is just about five metres from where the Appellant lived for seventeen years. That the prosecution proved that the Appellant who never left the hotel premises on the 19/9/96, not only took part in the murder of the deceased, but also took part in the burial of the headless body. Learned D.P.P. then submitted that the learned trial judge properly evaluated the evidence and rightly disbelieved the Appellant’s denial. That what the Appellant termed “fishing out for grounds to hold the Appellant guilty of the offence of murder” was but the learned trial judge’s proper evaluation of the evidence before him having heard, watched and seen the demeanour of the witnesses and the Appellant. The cases of ODU v THE STATE (2001) F.W.L.R. (Pt.66) pg.792 were cited in support.
Now, it is clear from the record of appeal that the learned trial judge relied on circumstantial evidence in convicting the Appellant. This is apparent from the statement of the learned trial judge at page 791 lines 1-3 where he said:
“This is a typical case where circumstantial evidence has proved a case of murder with the accuracy surpassing that of mathematics.”
Indeed the only evidence that could unravel the death of the deceased is circumstantial. This so because, there was no direct eye witness to the act of killing and the person who is alleged to have committed the act of killing, i.e. Innocent Ekeanyanwu, died mysteriously in police custody, though before his death, he had made a statement to the police in which he confessed to killing the deceased. He also mentioned the names of persons, including the Appellant who either procured, counseled or aided him to kill the deceased. However, the Appellant made two statements to the police which are in evidence as Exhibits 23 and 24 respectively. In both statements, he out-rightly denied either killing or participating in the killing and burial of the deceased. As I stated earlier, the learned trial judge relied on circumstantial evidence in convicting the Appellant.
The legal requirements to be satisfied before a conviction on circumstantial evidence had been amply discussed in APPEAL NOS: CA/PH/171A/2004, CA/PH/171B/2004 and CA/PH/171C/2004. I wish to adopt same in the resolution of this appeal. To that end, I have to consider the evidence led on the record in order to see whether the learned trial judge drew the right inferences on the evidence adduced at the trial in coming to the conclusion that the Appellant is guilty of the murder of Ikechukwu Okoronkwo. In that respect, I find it pertinent to point out that the starting point of the prosecution’s case against the Appellant is undoubtedly Exhibit 36. Exhibit 36 is the statement of Innocent Ekeanyanwu who confessed to killing the deceased. It was the said Innocent Ekeanyanwu who mentioned the Appellant as one of the persons who aided him in the actual act of the killing. I had held in APPEAL NO: CA/PH/171C/2004 that the statement i.e. 36 is admissible as a relevant fact under sections 4, 5 and 30 of the Evidence Act, 2011. Innocent Ekeayanwu had stated in Exhibit 36 as follows:
“Then I asked the boy to follow me to my room at Otokoto Hotel Amakohia Owerri. when the boy follow me enter my room, I told him I will buy all the groundnut with him and that I will pay when myself and my-workers who are living with me in the same room must have finished chopping the groundnuts. My co-workers names are Sampson Luamato and Alban Ajaegbu. As we then chop the groundnut I go buy one bottle of coca cola and give to the boy.
When the boy finish drinking the coca cola, he sleep off. When the boy dey sleep I go tell our Director, Chief Vincent Duru that we don get one small boy he said we should look for. He then directed me to kill him as we dey kill before and cut off the head and penis and bring to him. When I get to my room I told my room-mates, Sampson Luamata and Alban Ajaegbu what chief Vincent Duru, the Managing Director of the Hotel has said. Then I cut one short stick tie one end with clothe and enter my room. As I entered my room I told Sampson Luamata and Alban Ajaegbu to help me hold the boy’s legs and hands. As the boy come woke up and was about to cry I forced that cloth end of the stick into his mouth to prevent him from shouting or crying. From my room, myself, Sampson Luamata and Alban Ajaegbu carried the boy inside bush behind our room in the hotel premises. At the bush I brought out my matchet and cut-off the boy’s head… After cutting off the boy’s head, I also cut part of the boy’s penis. After cutting off the boy’s head and part of the penis, myself, Sampson Luamata and Alban Ajaegbu dig small grave and put the boy’s body inside the grave.”
Based on the above reproduced statement of Innocent Ekeanyanwu an Investigation was conducted in the Otokoto Hotel. In the course of the investigation the body of the deceased was exhumed in a grave dug in a farm cultivated behind the room occupied by Innocent Ekeanyanwu, Sampson Nnamito and the Appellant. The headless body was exhumed still wearing the clothes, the boy left home with that fateful day. Some coins, probably the proceeds he had earlier made from the sale of the groundnuts before he was lured to his death was also found in his pockets. The evidence led and also confirmed by the Appellant is that he shared a room with Innocent Ekeanyanwu in Otokoto Hotel. The headless body was exhumed right behind that room. The matchet used in decapitating the deceased was also recovered from the room which he shares with Ekeanyanwu and Sampson Nnamito.
The evidence on the record also showed that the Appellant had worked and lived within the Hotel for Seventeen (17) years. There is also evidence that there are farms behind the room they share, yet the Appellant denied knowing the persons who farm those farms. Particularly, he admitted knowing that the wife of his Managing Director had a farm in the Hotel premises, but feigned ignorance of the particular farm. He had stated in his evidence in chief that when he went to collect some detergent in their room, he saw Ekeanyanwu, one Robinson, Mathew Anyanwu, Sampson Nnamito, Lawrence Eboh and some other night guards eating groundnuts. He however, stated under cross-examination that those persons were eating groundnuts at the corridor in front of their room. However, Ekeanyanwu stated in Exhibit 36 that the Appellant also participated in eating the groundnuts. I am of the view that he denied eating the groundnut because, if he did, it would mean that he must have seen the deceased at the time. But he failed to understand that, at the time the groundnut was being eaten, the deceased was in the room he shares with Ekeanyanwu, probably asleep from the effect of the drugged coca cola given to him by Ekeanyanwu. Having gone into the room to collect detergent, he must have seen the deceased.
This is moreso, since he did not say that he saw the deceased in the corridor when the groundnut was being eaten. The learned trial judge was therefore right drawing the inference that the denials of the Appellant only made the inference of guilt against him stronger.
I had earlier held that the statements in Exhibit 36 are relevant under sections 4 and 5 of the Evidence Act, 2011. Though, it is the statement of a person who was not called as a witness, and may amount to hearsay evidence, yet it is admissible under section 30 of the Evidence Act, where it leads to the discovery of facts relevant to the case. This provision in my view is one of the circumstances where hearsay evidence may be admitted. See KAREEM v. F.R.N. (No.2) (2002) 8 NWLR (Pt.770) pg. 664 at 683-684. The learned trial judge consequently drew inferences from the facts discovered in consequence of the information received in Exhibit 36 to arrive at the guilt of the Appellant. Those inferences are cogent, concrete, unequivocal and lead irresistibly to the guilt of the Appellant. The trial court therefore in my view, made the right inferences and came to the conclusion that the Appellant participated in the actual killing and burial of the deceased. His action is therefore that of a principal to the act of murder by virtue of section 7(d)of the Criminal Code. Issue one is therefore resolved against the Appellant.
On the second issue, the Appellant contends that, the learned trial judge did not properly consider the Appellant’s defence, because, if he had done so, he would have reached the verdict of not guilty. That from the decision of the learned trial judge at pages 755-757 of the record of appeal, the trial court gave a scanty consideration to the defence of the Appellant and that the trial court did not analyze the statement of the Appellant admitted as Exhibits 22 and 23, other than saying that the Appellant made a total denial of the allegation against him. That in both Exhibits 22 and 23, the Appellant denied committing the murder charged.
Learned counsel for the Appellant went on to submit that, the trial court was bound to look at all the defences available to the accused no matter how stupid or improbable such a defence could be. He then relied on the cases of WILLIAMS v THE STATE (1992) 8 NWLR (Pt.261) Pg.55 and ARABA v STATE (1981) 2 N.C.R. Pg.110, to submit that the effect of non consideration of the accused’s defence in the trial court’s judgment, is that a miscarriage of justice was occasioned. We were then urged to allow the appeal on this ground. The case of OGUNLEYE v THE STATE (1991) 3 NWLR (Pt. 177) Pg.1 was further cited in support.
It is the submission of learned D.P.P. for the Respondent that denial is no defence in a criminal trial, and that where the prosecution has proved its case beyond reasonable doubt, the trial court can safely convict thereon. That there was no miscarriage of justice in this case, so the appeal should be dismissed.
It is the law as enshrined in our Constitution, that when an accused is being tried for any case whatsoever, he shall be presumed innocent until the contrary is proved beyond reasonable doubt. In that respect, the court has a duty to subject every item or fact raised for or against him at the trial to a very painstaking scrutiny. This is moreso in capital offences such as murder where the punishment upon conviction is the ultimate one; which is death. It therefore behoves of a trial court to consider all defences raised by the evidence adduced at the trial, whether such defences have been raised by the accused or not. No matter how weak or stupid such a defence might appear, it must be properly and adequately considered. However, it is not the duty or role of any court to formulate or invent a defence for an accused. In other words, the defences available or open to the accused person in a criminal trial which the trial court is bound to consider must be based or founded on material pieces of evidence from the record. Accordingly, failure of the trial court to consider the defences available or open to an accused is only fatal where there is evidence in support of such defence in the record of the trial court. See SHANDE v THE STATE 22 NSCQR Pt.756; NWAKWOALA & ANOR v THE STATE (2006) 14 NWLR (Pt.1000) Pg.663; AHMED v THE STATE (1999) 7 NWLR (Pt.612) Pg.679; MADJEMU v THE STATE (2000) 2 C.L.R.N. Pg.41; DAN SHALLA & ORS. V. THE STATE (2005) 1 N.C.C. Pg.24 and EKPENYONG v THE STATE (1993) 5 NWLR (Pt.295) Pg.513.
In the instant case, I have carefully read the statements of the Appellant admitted in evidence as Exhibits 22 and 23. I have also considered his viva voce evidence before the trial court. It is clear that the Appellant made a total denial of his involvement in the crime of murder charged. Apart from his bare denial there is no scintilla of evidence in both his statements in Exhibits 22 and 23, and his testimony before the court on which the trial court could draw any inference of any of the defences known to law. The trial court was therefore not expected to create, invent or manufacture a defence for the Appellant where none could be deciphered from the evidence on the record of appeal. In any case, the learned trial judge meticulously considered the evidence of denial of the Appellant and found it to be worthless and untrue considering the circumstantial evidence which pointed irresistibly that he participated in the commission of the crime charged. Furthermore, learned Appellant’s counsel did not draw the attention of this court to any defence available to the Appellant which can be inferred from the record. Issue two and the submission of counsel thereon is therefore baseless. It is therefore resolved against the Appellant.
On the whole therefore this Appeal No: CA/PH/171D/2004 has no merit and is accordingly dismissed. The conviction and sentence passed on the Appellant by the lower court is accordingly affirmed.
That now brings me to APPEAL No: CA/PH/171E/2004 SAMPSON NNAMITO V. THE STATE. This appeal was initiated by Notice of Appeal filed out of time by leave of this court vide Motion of Notice dated the 23/11/2010 but filed the 25/11/2010. The said leave was granted on the 17/11/2011. The Grounds of Appeal without their particulars are as follows:
1. The learned trial judge erred in law when he held that he does not believe that the Appellant never know when the deceased entered into the hotel.
2. The learned trial judge erred in law in concluding that when the Appellant testimony (sic) in court and his extra-judicial statements were put to test during cross-examination there were discrepancies and as such should be discredited.
3. The learned trial judge erred in law when he held that he gave full consideration to the defence put up by the Appellant and disbelieved him when in fact no such full consideration exist.
4. The judgment is against the weight of evidence.
As required by the Rules of this court, parties filed and exchanged briefs of argument. The Appellant’s brief of argument is dated the 7/12/2011 but filed the 8/12/2011. The Respondent’s brief of argument is dated and filed the 18/1/2012. In the Appellant’s brief of argument, two issues were formulated for determination, and are as follows:
“1. Whether there exist any evidence at all either circumstantial or direct that would have warranted the conviction of the Appellant. (Distilled from Grounds 1 and 2).
2. Whether the prosecution could be said to have proved the case against the Appellant beyond reasonable doubt. (Distilled from Ground 3).”
The Respondent nominated only one issue for determination as follows:
“Whether the prosecution did not prove its case against the Appellant beyond reasonable doubt.”
It is my view that the two issues nominated by the Appellant are similar in substance, and can be adequately accommodated by the lone issue distilled by the Respondent. In that respect, I shall consider the two issues formulated by the Appellant together.
Now, at the hearing of the appeal on the 20/1/2012, parties adopted and relied on the submissions in their respective briefs of arguments as their arguments in this appeal.
In arguing the appeal, learned counsel for the Appellant contended that there exist no evidence at all, whether circumstantial or direct that would have warranted the conviction of the Appellant for murder. He drew our attention to the statement of the learned trial judge at pages 757 lines 24-32, 758 lines 1 – 14 and 759 lines 1 – 4 to submit that, it is discernible that the Appellant was convicted because he was at the gate on 19/9/1996 when the murder took place and therefore must have known when the deceased entered the hotel. Secondly, because he did not sleep in his room on the 19/9/96, he knew about the murder of the deceased and participated in it, therefore he was afraid of the spirit of the deceased. Thirdly, the DW1 gave evidence that the Appellant was one of those that ate the groundnuts of the deceased.
It is also the contention of learned Appellant’s counsel that from the above findings of the learned trial judge, those circumstances were not cogent, direct nor reliable as to lead to the guilt of the Appellant on the standard required by law because there was the possibility that the deceased entered the hotel at any of the moments the Appellant was not at the gate. That eating of the groundnuts was not enough to conclude that the Appellant participated in killing the deceased. That the learned trial judge realized that there was no direct evidence to convict the Appellant that is why he fished for evidence in the guise of circumstantial evidence to convict the Appellant. Learned counsel then submitted that, the Appellant may be guilt of negligence for not being vigilant to know when the deceased entered the hotel, but it cannot be said that he encouraged the crime of murder.
Learned counsel for the appellant went on to submit that the statement by the learned trial judge at pages 760 lines 25-33 and 761 lines 1 -5 does not show that because the Appellant was afraid of sleeping in his room on the 19/9/96, he must have knowledge of the crime, as there is no evidence that this was the only night he failed to sleep in the room. That this circumstantial evidence was therefore based on suspicion, speculation and sentiment.
It is the further submission of learned counsel for the Appellant that the learned trial judge was in error when he applied the principle in MOHAMMED SANI ABACHA v STATE (2002) 11 NWLR (Pt.779) Pg.437 in the Appellant’s case, when the Appellant did not confess to the crime of murder charged. That the maker of Exhibit 36; Innocent Ekeanyanwu was dead and so could not be called as a witness, and therefore the statements contained in Exhibit 36 cannot be said to be a confessional statement. That the trial court therefore approbated and reprobated when on one hand it applied circumstantial evidence and on the other hand, did not apply circumstantial evidence, but Exhibit 36 to convict the Appellant of murder. He then submitted that Exhibit 36 is inadmissible and unreliable to convict the Appellant. That in any case, the circumstantial evidence led at the trial is not cogent enough to point irresistibly and unequivocally to the guilt of the Appellant. The cases of STATE v OGBUNBUNJO (2001) 2 A.C.L.R. Pg.527; FATOYINBO v A.G. WESTERN NIGERIA (1966) W.N.L.R. Pg.4 and ATANO v A.G. BENDEL STATE (1988) 2 NWLR (Pt.75) Pg.201 were cited in support.
Relying further on the cases of JOSEPH LORI & ANOR v THE STATE (1980) 8-11 S.C. Pg.81; LIWE ESAI & ANOR v THE STATE (1976) 11 S.C. Pg.39 and OMOGODO v THE STATE (1981) 5 S.C. Pg.5, learned Appellant’s counsel contended that from the evidence against the Appellant, it is clear that the Appellant was convicted on suspicion, hearsay and uncertainties. That since the circumstantial evidence on which the Appellant was convicted fell short of the standard of prove required by law, it will lead to miscarriage of justice if the conviction of the Appellant is allowed to stand. That serious doubt exists in the case presented by the Respondent and thus it cannot be said that there was any prove of the crime of murder against the Appellant beyond reasonable doubt. We were then urged to allow the appeal, and to discharge and acquit the Appellant.
Learned D.P.P. for the Respondent referred us to the case of IGAGO v THE STATE (1999) 73 L.R.C.N. Pg.3505 to submit that in a murder charge, the prosecution must prove inter alia, that it was the intentional act or omission of the accused person that caused the death of the deceased. Learned counsel further referred to section 7(d) of the Criminal Code to contend that, the Appellant, 1st, 3rd, 4th and 5th accused persons and late Innocent Ekeanyanwu were procured by the 7th accused person to murder Ikechukwu Okoronkwo, and thus, the Appellant by his acts aided in the said murder.
Learned D.P.P. then contended that, the Appellant was one of the guards on duty at Otokoto Hotel on the 19/9/96 and that his bit was from 6.00a.m. – 6.00p.m.That from the testimony of PW10 and DW1, hawkers were not allowed into the hotel. That the hotel is fenced with only one entrance manned by watchmen at all times. It is contended that the deceased could only gain entrance into the hotel premises by the authority and permission of the guards on duty as stated by the 5th accused person. It was then submitted that, the only logical inference that can be drawn from the totality of the evidence is that the Appellant aided in luring the deceased who was hawking groundnuts into the hotel premises where he was murdered. That the Appellant also aided in the murder of the deceased.
It is also the submission of learned D.P.P. that, the prosecution proved by evidence extracted under cross-examination that, the Appellant did not sleep in his room on 19/9/96 because of the headless corpse of the deceased. That the only logical inference to be drawn from this fact is that, the corpse of Ikechukwu Okoronkwo was in the room on the night of 19/9/96, and the Appellant was therefore haunted by the spirit of their innocent victim. That the inference drawn by the learned trial judge from the totality of the evidence before him was apt. The case of AHMAD v THE STATE (2003) FWLR Pg.1358 was cited to submit that the circumstantial evidence adduced by the prosecution in this case against the Appellant is not only cogent, complete and unequivocal, it is compelling and leads irresistibly to the conclusion that the Appellant was procured by the 7th accused person to aid in the murder of the deceased, and that the learned trial judge was right in convicting the Appellant.
I had held in the previous Appeal Nos: CA/PH/171A/2004; CA/PH/171B/2004 and CA/PH/171D/2004 that the judge trial utilized circumstantial evidence in convicting those Appellants. So it is with the Appellant in this appeal. The legal principles on circumstantial evidence were earlier discussed in those appeals. I adopt same in the determination of the instant appeal. I only wish to remind myself that, the circumstantial evidence that would lead to a conviction for a criminal offence, and especially in charge of murder, must be cogent, compelling, unequivocal and lead irresistibly to the conclusion that the Appellant committed the offence. It must be such that leaves no reasonable doubt that the Appellant committed the murder charged. See ONAH v THE STATE (1985) 3 NWLR (Pt.12) Pg.236; ADIE v. STATE (1980) 12 S.C. Pg.116 and ARUNA v THE STATE (1990) 6 NWLR (Pt.155) Pg.125. Where such circumstances exist upon which the inference of guilt of the Appellant can be drawn, it would be necessary for him to offer some explanation. His failure to do so may further support the inference of guilt against him.
In the instant case, the evidence on the record as adduced by the prosecution shows that the Appellant was employed as a security guard or watchman at the Otokoto Hotel. There was instruction from the hotel management that hawkers were not to be allowed into the hotel. There is also evidence that the Appellant was on duty at the hotel gate, from 6.00a.m.- 6.00p.m. on the 19/9/96, which is the day the offence was committed. On that day, the deceased Master Ikechukwu Okoronkwo, a hawker in groundnuts was either allowed to enter the hotel or was lured into the hotel contrary to instruction that no hawker be allowed into the hotel. The evidence further shows that the appellant was seen in company of others charged along with him, eating groundnuts within the hotel. The following day, being 20/9/96 one Innocent Ekeanyanwu, now deceased was arrested with a fresh human head, which turned out to be that of Mr. Ikechukwu Okoronkwo the groundnuts hawker, who was lured into the hotel the previous day; 19/9/96. The headless body of the said Ikechukwu was later exhumed from a farm within the hotel premises based on the statement of Innocent Ekeanyanwu who was arrested with the head.
The evidence adduced by the prosecution, as evident from the record of appeal show that Innocent Ekeanyanwu who was arrested with the head made a statement to the police which were admitted in evidence at the trial as Exhibits 21 and 36. I had held in the other APPEALS cited above, that those statements were rightly admitted by the trial court as relevant facts under sections 4 and 5 of the Evidence Act, 2011, and that facts discovered as a result of statements contained in Exhibits 21 and 36 are admissible by virtue of section 30 of the Evidence Act 2011. Though Innocent Ekeanyanwu, the maker of those statements died in police custody, and so could not be charged nor called to testify, the statements made by him in Exhibits 21 and 36 were, in my view, rightly admitted and acted upon by the trial court.
In Exhibit 36, Innocent Ekeanyanwu graphically recounted how he lured the deceased into the room shared by him, Alban Ajaegbu (4th Appellant) and the Appellant. The evidence on record also show that the hotel (Otokoto Hotel) was fenced with high walls and that there was no other entrance into the hotel, except through the one guarded gated. Innocent Ekeanyanwu further told the role the Appellant played in the death of the deceased. He stated that it was the Appellant and Alban Ajaegbo who held the hands and legs of the deceased, while he (Ekeanyanwu) gagged and decapitated him with a matchet. That the Appellant and Alban Ajaegbu helped in the burial of the deceased in a shallow grave, in a farm some few metres behind the room the three of them shared.
The Appellant in his statements to the police (Exhibits 24 and 25) and in his testimony before the court denied any involvement in the death of the deceased. He also denied any knowledge of the deceased’s death and that if Innocent Ekeanyanwu killed anybody; he did so outside their room. He admitted that he shares a room in Otokoto Hotel with Ekeanyanwu and Alban Ajaegbu. To strengthen his denial, he testified at the trial that he did not sleep in that room on the 19/9/96 which is the day the murder was committed. When asked under cross-examination why he did not sleep in their room that night, he said:
“I would naturally be afraid to sleep in my room that night because nobody would want to sleep with a corpse or spirit.”
This simple statement of the Appellant capped the evidence against him, as the learned trial judge said:
“Since the evidence of the prosecution which I believe is that Ikechukwu Okoronkwo was murdered on 19/9/96 and buried in Otokoto Hotel the only reasonable inference is that the spirit or corpse was that of Ikechukwu Okoronkwo.”
I agree with this inference and conclusion reached by the judge learned trial that, being conscious of what had transpired in their room, and in which he was involved the Appellant was scared of being haunted by the spirit of the innocent boy they had killed. This fact is further revealed in his refusal to answer any question concerning the grave in which they had buried the deceased.
From the totality of the evidence adduced at the trial, I am of the view that, the learned trial judge drew the right inferences on the involvement and therefore guilt of the Appellant. The circumstantial evidence graphically gave an unbroken link of the part played by the Appellant in the death of Ikechukwu Okoronkwo. Those inferences as rightly drawn by the trial court were cogent, compelling and unequivocal. The only logical inferences to be drawn and which the learned trial judge rightly drew is that the Appellant aided in the killing of the deceased, on that score, I find that this appeal has no merit and is accordingly dismissed. Consequently I affirm the conviction and sentence passed on him; SAMPSON NNAMITO, by the trial court.
I now come to APPEAL No: CA/PH/171F/2004; LAWRENCE EBOH v. THE STATE. This Appeal was filed by leave of this court vide motion on Notice dated 23/11/2010 and granted the 17/11/2011. It is dated 23/11/2010 and filed the 15/11/11 but deemed filed the 17/11/2011. The Notice of Appeal consists of three Grounds of Appeal as follows, but without their particulars:
1. The Learned Trial Judge erred in law when he held that the Appellant during cross-examination was discredited to the effect that he was at the gate when the hawker (deceased) was lured into the hotel.
2. The Learned Trial Judge erred in law when he held that the Appellant did not satisfactorily deny under cross-examination that he was eating groundnuts with others on 19/9/97 (sic: 96) and that the deceased entered the hotel through the gate manned by him.
3. The judgment is against the weight of evidence.
As required by the Rules of this court, parties filed and exchanged briefs of argument. The Appellant’s brief of argument is dated 7/12/2011 and filed 8/12/2011. The Respondent’s brief of argument was dated and filed the 18/1/2012. At the hearing of the Appeal on the 20/1/2012, parties adopted their respective briefs of argument as their argument in this appeal. For the determination of the Appeal, the Appellant distilled two issues from the three Grounds of Appeal as follows:
1. Whether it could be said that the Appellant’s evidence is discredited and unreliable upon which he can be convicted proper on circumstantial evidence. (Grounds 1 and 2).
2. Whether it could be said that there was a proper consideration of the Appellant’s defence?
The Respondent on its part also nominated two issues for determination as follows:
(i) Whether the prosecution did not prove its case against the Appellant beyond reasonable doubt.
(ii) Whether the trial judge did not evaluate the evidence or defence of the Appellant.
It is obvious that the issues formulated by the Appellant and the Respondent are similar in con. In that respect I shall determine this appeal on the issues nominated by the Appellant.
On issue one, learned counsel for the Appellant submitted that, it is not true that the Appellant’s evidence is discredited and unreliable upon which he can be convicted on circumstantial evidence, especially for a crime of such magnitude as murder. Drawing from the statement of the learned trial judge at page 766 lines 1 -21 of the record of appeal, learned counsel contended that, the trial court failed to show what part of the evidence of the Appellant was discredited under cross-examination. That the trial court merely considered the fact that the Appellant was on duty at the gate of Otokoto hotel on the 19/9/96 and took part in the eating of cooked groundnut, and therefore it was reasonable to infer the guilt of the Appellant. He then submitted that, the fact that the Appellant participated in the murder, when it is possible that he could have been given the groundnuts by any of this co-workers without his knowing the source.
It is the further submission of the Appellant that, it is not possible to conclude that the only reasonable inference to be drawn with respect to the issue of the Appellant being at the gate of the hotel on the 19/9/96, and that he ate groundnuts, is the guilt o[ the Appellant. That the inference to be drawn on those facts are not cogent and do not point irresistibly and unequivocally as well as compelling to the guilt of the Appellant, as to sustain his conviction on circumstantial evidence. The cases of STATE v. OGBUNBUNJO (2001) 2 A.C.L.R Pg. 521 at 538g; FATOYINBO v. A.G; WESTERN NIGERIA (1966) W.N.L.R Pg. 4 and ATANO v. A.G; BENDEL STATE (1988) 2 NWLR (Pt. 75) 201 were cited in support. See also LORI & ANOR v. THE STATE (1980) 8 – 11 S.C. Pg.81; ADIE v. THE STATE (1980) ALL N.L.R. Pg.39 at 449 and ESAI & ANOR v. THE STATE (1976) 11 S.C. Pg.39.
Learned Appellant counsel also relied on the case of OKPERE v. THE STATE (1971) 1 ALL NLR Pg.1 at Pg. 5 and OMOGODO v. THE STATE (1981) 5 S.C. Pg.5 at 21 – 24, to submit that, it would appear that the trial court found that the Appellant did not coordinate his set of facts while giving evidence and in his statement to the police. That such is possible and excusable considering the peculiar nature of the case. That the trial court also based its finding on the fact that the Appellant told lies, which cannot form the basis for his conviction, because it is the law that, where an accused person tells lies, it cannot sustain his conviction. In that respect, learned counsel submitted that the circumstantial evidence arrayed against the Appellant is merely speculative and therefore not positive and compelling enough to sustain the conviction of the Appellant. He accordingly urged us to allow the appeal on this ground.
Learned D.P.P. for the Respondent referred to the case of IGAGO v. THE STATE (1999) 73 LRCN Pg.3505 to submit that, in a murder charge, the prosecution must prove inter alia, that it was the intentional act of the accused person that caused the death of the deceased. That in the instant case, the prosecution’s case was based on circumstantial evidence. Learned D.P.P. then cited the case Of AHMAD v. The STATE (2002) FWLR pg. 1358 to submit that the circumstantial evidence adduced by the prosecution against the Appellant is not only cogent, complete and unequivocal; it is compelling and leads irresistibly to the conclusion that the Appellant was procured to and aided in the murder of the deceased.
On that score, learned D.P.P submitted that, the Appellant was not only among those that murdered Ikechukwu Okonkwo on 19/9/96, but was among those that lured him into the hotel premises on the guise of buying his cooked groundnut, and did partake in eating the groundnut. That it is in evidence that hawkers are not allowed into the hotel premises which is fenced round and the only entrance into it is through the gate which is at all times manned by guards. He contended that it is also in evidence that a hawker can only gain entrance by authority and or permission of the guards on duty and it is in evidence that the Appellant and Sampson Nnamito 15th Appellant) were on duty on the 19/9/96; the day of the incident. That by the Appellant’s testimony, he did not step out of the hotel throughout the 19/9/96 and 20/9/96 when he was arrested along with other accused persons. It is also the submission of learned D.P.P. that there is the un-contradicted testimony of Alban Ajaebgu that, the Appellant was one of the guards that he saw eating groundnuts along the corridor by 8.30a.m on the 19/9/96.
Learned D.P.P. for the Respondent went to submit that, the Appellant did not step out of the hotel on the 19/9/96 because he was preoccupied with the assignment he was given by Vincent Duru together with the other accused persons. That it can be logically inferred that Vincent Duru not only procured the Appellant an others to kill Ikechukwu Okoronkwo, but that the Appellant did aid in the murder of Ikechukwu Okoronkwo. That the learned trial judge dutifully evaluated the evidence and drew the right inferences that the Appellant aided in the murder of Ikechukwu Okoronkwo. We were then urged to resolve this issue against the Appellant.
As rightly pointed out by the learned counsel for the Appellant and agreed to by the learned D.P.P. for the Respondent, the case of the prosecution against the Appellant was based on circumstantial evidence. It is so, as there was no direct eye witness to the commission of the offence, and the Appellant did not confess to committing the offence. As discussed in the Appeals earlier decided, before an accused person can be convicted of murder based on circumstantial evidence, such evidence must be cogent, unequivocal and compelling as to convince a reasonable court that no rational hypothesis exist other than that the accused is capable of the murder charged. In other words, the circumstantial evidence led must be shown to be positive, direct and unequivocal pointing unmistakably and irresistibly to the commission of the offence by the accused. See ADEPETU V. STATE (1998) 9 NWLR (Pt. 565) Pg.185; UBOCHI V. STATE (1993) 8 NWLR (Pt.314) Pg.697; AKPAN V. THE STATE (2000) 3 NWLR (Pt.682) Pg.607 and OKOROGBA V. STATE (1992) 2 NWLR (Pt.222) Pg. 244. Accordingly, a conviction should be based on evidence and not on rumours, conjectures or suspicion, as suspicion is no substitute for proof beyond reasonable doubt. See ALAKE V. STATE (1992) 9 NWLR (Pt.265) Pg.200 and ADIE V. STATE (1980) 12 N.S.C.C. Pg. 51. Again, where the circumstantial evidence led is capable of two or competing interpretations, a conviction based thereon is liable to be quashed on appeal. See LORI v. STATE (1980) 12 N.S.C.C. pg.269.
In the instant case, the evidence led against the Appellant as reflected on the record is that, he and Sampson Nnamito (5th Appellant) were on duty at the gate on the 19/9/96, when the deceased was lured into the Otokoto Hotel, that there was no other way the deceased could enter the hotel premises without passing through that gate, as it was the only entrance into the hotel which is fenced all round by high wall. The other evidence against the Appellant is that he was seen by the 4th and 5th Appellants eating groundnuts along the corridor of the hotel near the room occupied by the late Innocent Ekeanyanwu. That he was eating the groundnuts together with the said Innocent Ekeanyanwu and other staff of the hotel who were also arrested along with the Appellant, but later discharged. The Appellant made four statements to the police after his arrest, which were admitted in evidence as Exhibits 11, 12, 13 and 26 respectively. In all those statements, he denied any involvement in the killing of the deceased. Of particular importance to this case are the statements in Exhibits 13 and 26, which I reproduce here. He stated in Exhibit 13 as follows:
“Throughout that Thursday I did not notice anything like killing of any person. I did not notice any strange movement from Innocent Ekeanyanwu. I did not eat any groundnut from the said beheaded child. If at all there was something like sharing of groundnut from the said beheaded child, I don’t know. However, due to the closeness of my room to that of Innocent Ekeanyanwu, if there is any child crying in their own room, I will know. I am not aware of the fact that this child was killed there.”
The Appellant further stated in Exhibit 26 that:
“In addition to my statement made on 20/9/96…I hereby state that I am not with Innocent Ekeanyanwu when he killed the child; and I don’t know the burial of the child at Otokoto Hotel Owerri. I did not eat groundnut belonging to the dead child and I did not see the child at Otokoto Hotel. I am living in the Hotel Otokoto Hotel Amakohia, Owerri. I did not participate in the killing of the child.”
I have also very carefully read the testimony of the Appellant at the trial court as shown on the printed record. I am unable to see any inconsistency between his testimony in open court and his extra-judicial statements tendered in evidence as Exhibits 11, 12, 13 and 26. It is obvious therefore that, the Appellant was convicted on the basis that he was on guard at the gate of the Otokoto hotel on the 19/9/96 and that he partook in eating the groundnut of the deceased. This is evident when the learned trial judge said:
“D.W.5 worked as a Guard in the gate the whole day on 19/9/96, there was strong evidence that he participated in eating the groundnuts. He testified that he left the gate and went to his room, and his room was directly opposite that of Innocent Ekeanyanwu. During cross-examination, he was discredited to the effect that he was at the gate when the hawker Ikechukwu was lured into the hotel.”
The learned trial judge proceeded to hold that upon comparison of the extra-judicial statements of the Appellant, i.e Exhibits 11, 12, 13 and 26,with his testimony in court, the evidence of the Appellant was riddled with discrepancies and therefore discredited. He accordingly disbelieved the Appellant that he did not participate in the killing of deceased.
Now, on the evidence led at the trial, there is no dispute at all that the Appellant was at the gate on duty on the 19/9/96, from 6.00am – 6.00p.m. There is no evidence that he was on night duty. The fact that the deceased entered Otokoto Hotel through the gate is evident from the statement of Innnocent Ekeanyanwu in Exhibit 36. Therein, it was stated by Ekeanyanwu that:
“The deceased boy I killed was passing with a tray of cooked groundnut. I called him to come make I buy groundnut. By this time I dey for Otokoto Hotel Gate. Then I called the boy to follow me to my room at Otokoto Hotel Amakohia, Owerri.”
There is no evidence, either from the testimony of the prosecution witnesses or in the statement of Ekeanyanwu that the Appellant was present at the gate when the deceased was lured into the hotel by Ekeanyanwu. The Appellant might have strayed away from the gate at that time or he might have remained indifferent when his colleague or co-worker invited the child into the hotel for the purpose of buying groundnuts. Whichever way we look at it, there is no other evidence that the failure of the Appellant to prevent the deceased entering into Otokoto Hotel was with the aim or intention that the boy be killed. If there is any such evidence, it is not supported by the evidence on record.
On the issue of the Appellant eating groundnuts, I am of the view that the learned trial judge was also in error to have drawn the inference of the complicity of the Appellant to the murder on the ground; “it is difficult to believe that a person who took part in the eating of the groundnut is ignorant of what happened to the hawker thereafter…” Surely, the evidence led show that the Appellant participated in the eating of the groundnuts. There is however, no evidence to show that the groundnut was eaten in Innocent Ekeanyanwu’s room or in the presence of the deceased. It is also in evidence that it was Ekeanyanwu who had in his possession a bag containing the groundnuts from which he gave out some to his co-workers. There is also evidence that, apart from the Appellant other staff of the hotel, not charged with the murder also partook in eating the groundnut. I wonder therefore, where the learned trial judge got the evidence upon which he convicted the Appellant apart from the fact that he ate the groundnut given him by Ekeanyanwu. The inference of guilt drawn by the learned trial judge therein is in my view certainly faulty and cannot sustain the conviction of the Appellant for murder.
One point I find germane to the determination of this Appeal is that, the Appellant denied specifically in Exhibit 13 that he did not notice or hear anything from the room occupied by Innocent Ekeanyanwu on the 19/9/96. Though his room adjoins that of the Appellant, he did not notice anything or hear any noise. This piece of evidence is given credence to by the statement of Innocent Ekeanyanwu that, he gagged the deceased so as to prevent him from crying out. It is clear therefore that the learned trial judge wrongly drew inference of the guilt of the Appellant from the evidence led against him by the prosecution. This error occasioned a grievous miscarriage of justice to the Appellant. His appeal therefore has merit and is accordingly allowed. His conviction and sentence to death is hereby set aside. The result is that, he is discharged and acquitted.
On the whole therefore, Appeal Nos: CA/PH/171A/2004, CA/PH/171B/2004, CA/PH/171C/2004, succeed and are accordingly allowed. Thus, RUFUS ANYANWU, EBENEZER EGWUEKWE and LAWRENCE EBOH are hereby discharged and acquitted. However, APPEAL NOS: CA/PH/171C/2004, CA/PH/171D/2004 and CA/PH/171E/2004, have no merit and are hereby dismissed. Accordingly, the conviction and sentence of death passed on ALBAN AJAEGBU SAMPSON NNAMITO and VINCENT DURU (alias Otokoto) are hereby affirmed.

UWANI MUSA ABBA AJI, J.C.A: I read in draft the lead judgment of my Learned brother H. M. Tsammani, JCA, just delivered and I agree entirely with the reasoning and conclusion of my Learned brother that Appeal Nos. CA/PH/171A/2004, CA/PH/171B/2004 and CA/PH/171F/2004, are meritorious and are accordingly allowed by me. The sentences of death passed on them by the Lower Court are hereby set aside. Accordingly, the Appellants herein, Rufus Anyanwu, Ebenezer Egwueke and Lawrence Eboh are hereby discharged and acquitted.
Consequently, Appeal Nos. CA/PH/171C/2004, CA/PH/171D/2004 and CA/PH/171E/2004 are devoid of any merit and are hereby dismissed. The conviction and sentence of death passed on the Appellants namely Alban Ajaegbu, Sampson Nnamito and Vincent Duru (Alias Otokoto) are hereby affirmed. It is in respect of these Appellants that I wish to add a word or two.
The facts of this case are succinctly well set out in the lead judgment of my learned brother, Tsammani, JCA. The evidence is mainly circumstantial. There is no eye witness to the commission of the crime. It is now settled that a conviction for murder can be sustained on any of the following ways:
(i) The confessional statement of the accused which has been duly tested, proven and admitted in evidence:
(ii) By circumstantial evidence which is complete, cogent and unequivocal and lead to the irresistible conclusion that the accused committed the offence charged; and
(iii) By direct evidence of eye witness (es) who actually saw the accused committing the offence. See Joseph Lori & Anor. vs. The State (1980) 8 – 11 SC 81; Igabelle 11 vs. The State (2007) NCC 125; and Emeke vs. State (2001) 14 NWLR (Pt.734) 616.
There is no dispute on the facts of the case that one Master Anthony Ikechukwu Okoronkwo was killed on the 19th/9/1996 at Otokoto Hotel and his head decapitated from his body and the tip of his penis cut off. The headless body was exhumed at the Otokoto Hotel and the head found with one Innocent Ekeanyanwu.
As said earlier, there is no direct eye witness to the act of killing and the person who was alleged to have committed the act of killing i,e. Innocent Ekeanyanwu died in police custody before trial. However, before his death he made a statement to killing the deceased. He also mentioned the names of persons including the Appellants who either procured, counseled or aided him to kill the deceased. Innocent Ekeanyanwu in his extra judicial statement to the police admitted as Exhibit 36 stated inter-alia as follows:-
“Then i asked the boy to follow me to my room at Otokoto Hotel Amakohia Owerri. When the boy follow me enter my room, I told him i will buy all the groundnut with him and that I will pay when myself and my-workers who are living with me in the same room must have finished chopping the groundnuts. My co-workers names are Sampson Luamata and Alban Ajaegbu. As we then chop the groundnut I go buy one bottle of coca cola and give to the boy. When the boy finished drinking the coca cola, he sleep off. When the boy dey sleep, I go tell our Director, Chief Vincent Duru that we don get one small boy he said we should look for. He then directed me to kill him as we dey kill before and cut off the head and penis and bring to him. When i get to my room i told my room-mates, Sampson Luamata and Alban Ajaegbu what chief Vincent Duru, the Managing Director of the Hotel has said. Then I cut one short stick tie one end with clothe and enter my room. As r entered my room I told Sampson Luamata and Alban Ajaegbu to help me hold the boy’s legs and hands. As the boy come woke up and was about to cry I forced that cloth end of the stick into his mouth to prevent him from shouting or crying. From my room, myself, Sampson Luamata and Alban Ajaegbu carried the boy inside bush behind our room in the Hotel premises. At the bush I brought out my matchet and cut-off the boy’s head… After cutting off the boy’s head, i also cut part of the boy’s penis. After cutting off the boy’s head and part of the penis, myself, Sampson Luamata and Alban Ajaegbu dig small grave and put the boy’s body inside the grave.”
Based on the said statement of Innocent Ekeanyanwu, investigation was conducted in the Otokoto Hotel. It is in evidence that a shallow grave was found behind the room where Innocent Ekeanyanwu lived with his room mates, Sampson Nnamito and Alban Ajaegbu, Appellants in CA/PH/171D/2004 and CA/PH/171E/2004. It is also in evidence before the Court that a matchet Exhibit 6 was recovered under Innocent Ekeanyanwu’s bed.
As regards Ikechukwu’s head that was cut off, all the prosecution witnesses had testified that Innocent Ekeanyanwu was arrested carrying a human head which PW5 identified as the head of Ikechukwu Okoronkwo and PW6 identified the headless body as that of Ikechukwu Okoronkwo exhumed in a grave dug in a farm cultivated behind Innocent Ekeanyanwu, Sampson Nnamito and Alban Ajaegbu’s room in the hotel. The headless body was exhumed still wearing the cloths he left home with that fateful day. Some coins, probably the proceeds he had earlier made from the sale of the groundnuts before he was lured to his death was found in his pockets.
The Appellant in CA/PH/171C/2004, Vincent Duru alias Otokoto is the Managing Director and owner of the Otokoto Hotel. The Appellants however, both in their extra judicial statements to the police and testimony in Court denied any involvement in the killing of the deceased.
The Learned trial judge relied on circumstantial evidence in convicting the Appellants. It held at pages 791 lines 1 to 3 of the record as follows:-
“This is a typical case where circumstantial evidence has proved a case of murder with the accuracy surpassing that of Mathematics.”
The Learned trial judge is absolutely right. The Learned trial judge draw inferences from the facts discovered inconsequence of the information received in Exhibit 36 to arrived at the guilt of the Appellants. The principle for the acceptance or otherwise of circumstantial evidence by the Court has been settled by our Superior Courts in many decided cases. For circumstantial evidence to support or ground a conviction, it must be unequivocal, positive and irresistible, and must point at the guilt of the accused person. Where circumstantial evidence cogently, irresistibly, positively, unequivocally, unmistakably and conclusively points to the accused person as the perpetrator of the offence alleged to have been committed, a court of law would be entitled to infer from such evidence and the surrounding circumstances that the accused committed the offence and can convict him on such evidence, Odiawa vs. FRN (2008) ALL FWLR (PT.439) 436 @ 470; Akpa vs. State (2008) 14 NWLR (PT.1106) 72 @ 101. The Appellants were rightly and properly convicted based on the overwhelming circumstantial evidence before the Lower Court.
Circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances and is capable of proving a proposition with the accuracy of Mathematics. It is no derogation of evidence to say that it is circumstantial. It may also be noted that there is no yardstick by which any circumstantial evidence can be measured before a conviction can be entered against an accused person charged with the offence for which circumstantial evidence is the only one available. Each case depends on its own facts but the one test which such evidence must satisfy is that it should lead to the guilt of the accused person and leave no degree of possibility or chance that other persons could have been responsible for the commission of the offence.
It is based on the above and the fuller and detailed reasons of my Learned brother H.M. Tsammani, JCA, that I also dismiss Appeal Nos. CA/PH/171C/2004, CA/PH/171D/2004 AND CA/PH/171E/2004. The conviction sentence of death passed on the Appellants namely: Vincent Duru (Alias Otokoto)’ Alban Ajaegbu and Sampson Nnamito by the Lower Court is also affirmed by me.

MOJEED A. OWOADE. J.C.A: I read in advance the judgments delivered by my learned brother Tsammani, JCA, In Appeals Nos. CA/PH/171A/2004, CA/PH/171B/2004 and CA/PH/171F/2004. I do agree that the three appeals are meritorious and that the Appellants in each of the three appeals, that is Rufus Anyanwu, Ebenezer Egwuekwe and Lawrence Eboh be discharged and acquitted.
I also agree with the judgments in Appeals Nos. CA/PH/171C/2004, CA/PH/171D/2004 and CA/PH/171E/2004. These three appeals have no merit. I therefore, also affirm the conviction and sentence of death passed on each of the Appellants in 171C, 171D and 171e. Accordingly, the conviction and sentence of death passed on ALBAN AJAEGBU SAMPSON NNAMITO AND VINCENT DURU (alias Otokoto) are hereby affirmed.
The facts leading to this appeal have been well stated in the leading judgment. The six Appellants were convicted in the lower court for the offence of murder. There was no direct and or eye witness evidence linking any of the Appellants with the death of the deceased. The challenge of the judex in this case is to examine the weight of circumstantial evidence as it affects each of the Appellants. In relation to Rufus Anyanwu, Ebenezer Egwuekwe and Lawrence Eboh, who were respectively Manager, Supervisor and Gateman at the Otokoto Hotel the circumstantial evidence against each of them was neither cogent compelling nor sufficient to sustain the charge of murder. For each of these Appellants, evidence against them borders on allowing the deceased to come into the premises and perhaps because they were around as workers in the hotel ought to have had knowledge of the murder of the deceased- Clearly, a conviction for murder cannot be sustained on such evidence. This is because in a murder charge, it is part of the duty of the prosecution to establish that the death of the deceased resulted from the act of the accused. See Uguru vs. State (2002) 9 NWLR (Pt. 771) Pg. 90 at 111.
On the other hand, in the cases of ALBAN AJAEGBU, SAMPSON NNAMITO and VINCENT DURU there was sufficient circumstantial evidence to link the actions or inactions of each of the Appellants with the murder of Anthony Ikechukwu Okoronkwo.
ALBAN AJAEGBU, for example shared the same room with Innocent Ekeanyanwu (the actual killer of the deceased) in Otokoto Hotel. The headless body was exhumed right behind the room. Also, the matchet used in decapitating the deceased was also recovered from the room shared by Innocent Ekeanyanwu, Alban Ajaegbu and Sampson Nnamito. Also, the leading judgment in each of the appeals has demonstrated the relevance of the facts contained in Exhibit 36 which mentioned the roles of Alban, Sampson and Vincent as relevant facts by Section 1, 4 and 5 of the Evidence Act 2011.
Beyond, the relevance of the facts contained in Exhibit 36 and facts discovered in consequence of information given by a defendant therein, the prosecution in the case of these three Appellants, that is ALBAN, SAMPSON AND VINCENT was able to garner other snippets of evidence as against each of the three Appellants which in fact adequately corroborated the facts contained in Exhibit 36. Why for example would Vincent Duru ask Innocent Ekeanyanwu if he had implicated him if he truly did not know about the mission of Ekeanyanwu to kill and bring a human head to him.
It is by now a truism that many cases of murder cannot be proved by eye witness or direct evidence. Hence, the resort of the law to circumstantial evidence.
Meanwhile, circumstantial evidence is said to be evidence of surrounding circumstances which by undersigned co-incidence is capable of proving a proposition with mathematical accuracy.
See R. vs. Taylor & 2 Ors. (1928) 21 CAR 20 at 21, Obukor vs. The State (1984) 8 S.C.31, Chris Opara vs. The State (2000) 9 NWLR (Pt. 986) 508 at 525. For those and the fuller reasons contained in each of the six (6) appeals treated, I also agree with the conclusions reached in all the appeals.

Appearances

Dr. A. Mada-Kannike for the 1st, 4th, 5th and 6th Appellant
U.C. Osuji Esq., for the 2nd Appellant
J.C. Uwazuruonye Esq. for the 3rd AppellantFor Appellant

AND

C.C. Dimkpa (Mrs.) (D.P.P. Imo State)For Respondent