ELVIS CHUKWUNMA ILOMUANYA V. THE STATE (2012)

ELVIS CHUKWUNMA ILOMUANYA V. THE STATE

(2012)LCN/5332(CA)

In The Court of Appeal of Nigeria

On Friday, the 27th day of April, 2012

CA/OW/286A/2010

RATIO

FAIR HEARING: PRINCIPLE OR DOCTRINE OF FAIR HEARING

The question of breach or otherwise of fair hearing is regarded or treated as very fundamental and sine qua non to any proceedings, hearing or trial which is subject to or related to an adjudication process. In other words, each party to a case must be afforded an ample opportunity of defending himself. Thus the question of fair hearing is not just an issue of dogma. Whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case. The crucial determinant factor is the necessity to afford the parties equal opportunity to put their case to the Court before the Court gives its judgment. A complaint founded on a denial of fair hearing is an invitation to the Court hearing the appeal to consider whether or not the Court against which a complaint is made has been generally fair on the basis of equality to all the parties before it. The simple approach is to look at the totality of the proceedings before the Court and then form opinions on objective standards whether or not an equal opportunity has been afforded to parties to fully ventilate their grievance before the Court. See Pam & Anor vs. Mohammed & Anor. (2008) 5-6 SC (PT.1) 83. Deduwa vs. Okorodudu (1976) NMLR 236 @ 246; (1976) 9-10 SC 329; Mohammed vs. Kano N.A. (1968) 1 ALL NLR 411. Ariori vs. Elemo (1983) 1 SC 13 and Effiom vs. State (2003) 3 ACLR 192. PER HON. JUSTICE UWANI MUSA ABBA AJI, J.C.A.

CRIMINAL LAW: INGREDIENTS OF PROVING THE OFFENCE OF MURDER

In a charge of murder contrary to Section 319 of the Criminal Code, the prosecution needs to establish the following ingredients of the offence beyond reasonable doubt before an accused is convicted:-

The deceased has died
That the death of the deceased resulted from the act of the accused person and
That the act of the accused was intentional with knowledge that death or grievous bodily harm was the probable consequence. PER HON. JUSTICE UWANI MUSA ABBA AJI, J.C.A.

CRIMINAL LAW: TYPES OF EVIDENCE THAT CAN BE USED TO PROVE A GUILT

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 leads to the irresistible conclusion that the accused committed the offence charged,

(c) By direct evidence of eye witnesses who actually saw the accused committing the offence. PER HON. JUSTICE UWANI MUSA ABBA AJI, J.C.A.

EVIDENCE: WHEN IS A PIECE OF EVIDENCE SAID TO BE CONTRADICTORY

A piece of evidence is contradictory to another when it asserts or affirms the opposite of what that other asserts and not necessarily when there are minor discrepancies in details between them. A contradiction between two pieces of evidence go rather to the essentiality of something being or not being at the same time, whereas, minor discrepancies depends rather on the persons astuteness and capacity for observing details. Thus, two pieces of evidence contradict one another when they are by themselves inconsistent. There is no such inconsistency in the present case. See Kenneth Ogoala vs. The State (1991) 2 LRCN 660 @ 679; Ayo Gabriel vs. The State (1989) 5 NWLR (PT.122) 457; Sale Dagaya vs. The State (2006) 134 LRCN 397; Atano vs. A.G. Bendel State (1988) 2 NWLR (PT.75) 201; Kalu vs. The State (1988) 4 NWLR (PT.90) 50. For a contradiction to be fatal to the prosecution’s case, it must go the substance or root of the case and not of a minor nature. In essence, the contradiction that would make a Court disbelieve a witnesse(s) has to be on a material point in the case and what is material however depends on the facts of each case. See Ndukwe vs. The State (2009) 2 SCM 147. PER HON. JUSTICE UWANI MUSA ABBA AJI, J.C.A.

CRIMINAL LAW: WHETHER A CONVICTION CAN BE SECURED IN THE ABSENCE OF CORPUS DELICTI

As a matter of fact, a conviction can be properly secured in the absence of Corpus delicti where there is a strong, direct evidence as shown in the instant appeal. See Ogundipe & Ors. vs. Queen (1954) 14 WACA 458; and Edim vs. State (1972) 4 SC 160 @ 162, where the Supreme Court held that where there is positive evidence that the victim had died, failure to recover his body need not frustrate conviction.

See also Jua vs. State (2008) ALL FWLR (440) 766 @ 791. PER HON. JUSTICE UWANI MUSA ABBA AJI, J.C.A.

CRIMINAL LAW: NATURE OF AN ALIBI

The expression “Alibi” simply means “elsewhere”, that having regard to the time and place when and where he was alleged to have committed the offence, he could not have been present. Indeed, the plea of alibi postulates the physical impossibility of the presence of the accused at the scene and of his presence at another place. See Ochemaje vs. State (2008) 15 NWLR (PT.1109) 57 @ 89 (2008) ALL FWLR (PT.435) 1661 @ 1685; Tanko vs. State (2009) ALL FWLR (PT.456) 1977 @ 1999; Ani vs. State (2003) 11 NWLR (PT.830) 142; Dogo vs. State (2001) 3 NWLR (PT.699) 192; Gachi vs. State NMLR 333. In other words, the accused person was somewhere other than where the prosecution alleged he was at the time of the commission of the offence. Consequently, the accused person could not have committed or participated in the commission of the offence with which he has been charged. PER HON. JUSTICE UWANI MUSA ABBA AJI, 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

ELVIS CHUKWUNMA ILOMUANYA Appellant(s)

AND

THE STATE Respondent(s)

HON. JUSTICE UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Abia State High Court, presided over by S. N. Imo, Chief Judge (as he then was) sitting at the High Court Umuahia delivered on the 1st day of July, 2010 wherein he convicted the Appellant and two others for the offence of murder contrary to Section 319(1) of Criminal Code Cap 39 Vol. 11. Laws of Eastern Nigeria 1963 as applicable in Abia State.
The Appellant and nine (9) others were tried on a three count information at the Umuahia High Court for the murder of three men, namely Sunday Ude, Chief Cornelius Orjiogo and Johnson Onwuegbuchulam. The alleged murder was said to have taken place between 4th and 5th January, 2007 at Lokpanta in the Umuneochi Judicial Division of Abia State.
In proof of its case, the prosecution called a total of six witnesses while the accused persons testified on their own behalf and called no additional witness.
At the end of the trial, the Learned Chief trial Judge convicted the 1st to 3rd accused persons namely, Raphael Ude Elvis Chukwuma Ilomuanya (the Appellant herein), and David Amaefule of the of murder while discharging and acquitting the 4th to 10th accused persons.
The facts of the case as gleaned from the evidence of the prosecution witnesses and that of the accused persons are that there was a conflict between the Lokpanta Youths Movement and the Lokpanta Development Union. The Youths who were supported by the women of the community wanted to take over the rulership and control of the community.
The coming into being of the Lokpanta Youth Movement was initially welcomed by the Community until the youth movement started doing things which the Union considered unwholesome like, torturing and even killing persons as well as constituting themselves into a Court to try all sorts of cases including Criminal cases and matters involving husband and wife. It is alleged that the Youths Movement issued a decree that no Lokpanta fellow should report any crime to the police or conventional Courts and that all such matters be decided by them. The Development Union petitioned the police against the unwholesome activities of the youths movement. The police at Isiochi invited the Union members as well as the Youths Movement and the women to a meeting. They attended the meeting and the police cautioned the youths not to take Laws into their hands again and advised them to make a constitution for the youths movement. Every son of Lokpanta between the age of 15 years to the age of 50 years is expected to be a member of the youths movement. The accused persons were the members of the youths movement while the three deceased persons were executive members of the Lokpanta Development Union.
After the petition to the Police, the youths resolved to wrestle power from the town union. A Constitution was drafted for the Youths movement but not yet signed. On the 3rd day of January, 2007, the women went round the Community in a demonstration, in support of the youths to wrestle power from the town union executives.
The demonstrators also visited the homes of the Leaders of the Town Union including the deceased persons to leave a threat of cooperating with the youths or be prepared for the worst. The demonstration unfortunately developed into a riot. Some youths joined the women and by the 4th of January, 2007 the deceased persons were taken away from their homes by the youths to an unknown destination. Some other Union leaders escaped being captured or kidnapped by the youths.
The deceased persons and one other boy who testified as PW2 in the lower Court were taken away on motorcycles. The deceased were taken to the market square where they were being beaten and flogged mercilessly. Thereafter, they were moved on motorcycles to a bush, on a flat hill towards the Lokpanta and Agwu border. At the hill, the deceased persons were tortured and brutally murdered before their dismembered bodies were set ablaze. The boy who was taken along with the deceased escaped by rolling or jumping into a pit from where he went to safety.
It is also in evidence that at the scene of crime, 1st accused, Appellant and 3rd accused persons were present giving the youth encouragement and support. They even congratulated the youths after the dastardly murder of the deceased. The Appellant pleaded alibi. It is also in evidence that the Police investigated the case and recovered some bits of charred human flesh which was sent to the forensic Laboratory for analysis.
The Appellant is aggrieved with his conviction and sentence and has appealed to this Court vide a Notice of Appeal dated and filed on the 7th day of July, 2010 upon seven (7) grounds of appeal. The seven grounds of appeal are hereby reproduced without their particulars, to wit:-
GROUNDS OF APPEAL:
1. The judgment of the trial Court is a nullity being an unconstitutional denial of the Appellant’s right to a fair hearing.
2. The learned trial judge misdirected himself and consequently arrived at a wrong decision which has occasioned a miscarriage of justice when he held:
“Evidence shows that the 1st, 2nd and 3rd Accused persons hold leadership position in the Lokpanta Youths Movement, PW2 in his testimony in court stated that they were present at the scene and after the killing congratulated the Youths for a job well done. Again 1st, 2nd and 3rd Accused closely followed the events such that they went to State C.I.D. where they were arrested. Their interest and involvement as to follow to the State C.I.D. is a clear manifestation that they were fully part of the events of 3rd to 5th January, 2007 resulting in the killing of the deceased persons. The defence offered by them as to why they went to the State C.I.D. is watery and something put up to defend themselves”
3. The learned trial judge erred in law when he relied upon the evidence of PW2 as the basis for finding the Appellant guilty of the offences charged.
4. The learned trial judge erred in law in holding that the Appellant was guilty of the offence of murder under Sections 8 and 9 of the Criminal Code.
5. The judgment of the court is unwarranted, unreasonable and unsupportable having regard to the evidence before the court.
6. The learned trial judge erred in law in upholding the prosecutions case when the Appellant’s Alibi was neither investigated by the police nor disproved by credible evidence.
7. The learned trial judge erred in law in his conclusion that the Appellant was guilty of the offences of murder as charged.

As it is the practice in this Court, Parties filed and exchanged briefs of argument. In the Appellant’s brief settled by O.A. Obianwu, SAN, the following four (4) Issues were distilled for the determination of the appeal to wit:-
1. Did the Appellant receive a fair hearing? – Ground 1.
2. Was the learned trial Judge right in his conclusion that the Appellant counseled and procured the perpetrators of the murders? – Grounds 2, 3 & 4.
3. Was the trial Judge right to have found the Appellant guilty of the offences of murder charged?-Grounds 5 & 6.
4. Was the learned trial Judge correct in upholding the case of the prosecution in the face of the Appellant’s Alibi – Ground 6.
In the Respondent’s brief of argument settled by U.T. Nwachukwu Esq., Director of Public Prosecutions, Umuahia, Abia State, the following four (4) issues were formulated for determination of the appeal. They are:-
1. Whether the Appellant was not given a fair hearing by the learned trial Chief Judge in this case.
2. Whether the learned trial Chief Judge was not right in coming to the conclusion that the Appellant counseled and procured the murder of the deceased persons.
3. Whether the learned Chief Judge was not right in convicting the Appellant of the offences of murder.
4. Whether the defence of Alibi availed the Appellant in this case.
At the hearing of the appeal on the 14th March, 2012, Learned Senior Counsel for the Appellant, A.O. OBIANWU, SAN, adopted and relied on the Appellant’s brief of argument dated 10th of December, 2010 and filed on the 13th of December, 2010 and urged the Court to allow the appeal. The Hon. Attorney-General, Abia State, Chief Umeh Kalu, Esq. adopted and relied on the Respondent’s brief of argument dated 11th March, 2011 and filed on the 14th March, 2011 and urged the Court to dismiss the appeal and affirm the conviction and sentence of the lower Court.
I have considered the issues formulated for the determination of this appeal by the respective Counsel and the Respondent’s issues only failed short of adopting the Appellants issues for determination. I will therefore adopt the issues formulated by the Learned Senior Counsel for the Appellant in the determination of this appeal.

ISSUE 1
Did the Appellant receive a fair hearing?
Learned Senior Counsel for the Appellant answered the question in the negative. He submitted that the Appellant’s fundamental right to a fair hearing was violated by the manner in which the learned trial Judge approached the Judgment when he simply considered and accepted the case of the prosecution without considering the defences put forward by the Appellant by way of evidence in Chief, Exhibits J, his Statements to the Police and the address of his Counsel which he argued amounts to a denial of fair hearing which has occasioned a miscarriage of Justice. He cited the case of ONUOHA VS. STATE (1988) 3 NWLR (PT.33) 460 to submit that the art of writing judgment has not been followed by the learned trial Judge especially with regard to Section 245(1) of the Criminal Procedure Act in that the Appellant’s version of the story of events was not referred to by the learned trial Judge let alone considered and that no reference was made either to his evidence in Court or Exhibit J which he adopted as part of his defence. His argument is that Section 245 of the Criminal Procedure Act has not been complied with. He also placed reliance on the case of NWUZOKE VS. THE STATE (1988) 1 NWLR (PT.72) 529 to submit that every defence available to the accused on the evidence and facts before the Court must be considered by the Court no matter how weak, far-fetched, foolish, conflicting, unfounded and false it might be. He also relied on the following cases:-
– SUGH VS. STATE (1988) 2 NWLR (PT.77) 475;
– AIGBE VS. STATE (1976) 9-10 SC 67 AT 90;
– QUEEN VS. JOHN IYULE (1961) ALL NLR 481;
– OPAYEMI VS. SPATUS (1985) 2 NWLR (PT.5) 101;
– UKWUNNENYI VS. STATE (1989) 4 NWLR (PT.114) 131;
– NJOKU VS. STATE (1993) 6 NWLR (PT.299) 272;
– JOHN AND DAN VS. THE STATE (1966) 1 ALL NLR 211 AT 212
to submit that where a Court neglects, fails or refuses to consider the Appellant’s own version of the story vis-a-vis that of the Prosecution amounts to a denial of Justice, a breach of Constitutional provisions on fair hearing contained in Section 36 of the 1999 Constitution. He also relied on the case of OSARODIAN OKORO VS. STATE (1988) 12 SCNJ 191, (1988) 5 NWLR (PT.94) 255 to further submit that this is infraction of the Appellant’s right to fair hearing. Learned Senior Counsel concluded by referring to the case of MOHAMMED VS KANO N.A. (1968) 1 ALL NLR 411 that there has been a failure of justice and the Court was urged to resolve this issue in favour of the Appellant.
In his response, the Learned D.P.P submitted that the Learned trial Judge gave a fair hearing to the Appellant, nay to all the parties in the charge before the Lower Court. He submitted that the prosecution presented its case, and the Appellant was allowed to defend himself and was throughout represented by a counsel. He cited the case of DEDUWA VS. OKORODUDU (1976) NMLR 236 AT 246, 1976 , 9 – 10 SC 329 on the definition of the phrase ‘fair hearing’ to mean a hearing that does not contravene the principles of natural justice. He also cited the case of MOHAMMED VS. KANO N.A. (1968) ALL NLR 411; ARIORI VS. ELEMO (1983) 1 SC 13 AND EFFIOM VS. STATE (2003) 3 ACLR 192 on what a fair hearing connotes. He thus submitted that the Appellant was allowed to put in his defence and was afforded reasonable time to do so, defended by a team of Lawyers and spoke in the language he understands.
He submitted that the complaint by the Appellant is that the Learned trial Judge did not give vent to his defence and counsel address and relies on Section 245 of the Criminal Procedure Law and to submit that this case complied substantially with the above requirement of the law. He submitted that the Appellant offered little or no defence to the overwhelming evidence against him.
Learned Counsel raised a poser as to whether, the manner in which the Learned Judge wrote the judgment could be said to offer no fair hearing to the Appellant by not adverting his mind to the defences if any offered by the Appellant. Learned Counsel argued that the Learned Chief Judge did not in any way ignore or jettison the defence of the Appellant which was that of inchoate alibi that he went to see his mother who was hospitalized at Abakaliki within the period. This alibi was debunked under cross-examination as he was seen at Lokpanta that day and he was physically fixed at the scene of crime.
Learned Counsel further submitted that the dictum of Oputa, JSC, in the case of ONUOHA VS. THE STATE (1988) 3 NWLR (PT. 83) 640 set out by the Learned Appellant Counsel is no more than a guide and not a rule of law that must be followed or adhered to strictly by judges. He referred to the following cases- NDUKWE VS. THE STATE (2009) 3-4 SC (PT.11) 34 AT 78; UKEJIANYA VS. UCHENDU (1950) 13 WACA 45, AYENI VS. SOWEMIMO (1982) 5 SC 6; WHITE VS. C.O.P. (1955) NMLR 215, to submit that what an appeal has to decide is whether the decision of the trial Court is right and not what its reasons were. He urged the Court to hold that there was no miscarriage of justice as other accused persons were discharged and acquitted.
The gravamen of the Appellant’s complaint under this issue is that he was not given a fair hearing in that, the manner in which the Learned trial Judge approached the judgment violated his fundamental right to fair hearing in that the learned trial Judgment simply considered and accepted the case of the prosecution without considering the defences put forward by the Appellant in his evidence in chief and Exhibit J being his statement to the police. It therefore appears to me that this complaint is motivated by the way the Learned trial Chief Judge wrote his judgment.
However, both counsel in their respective briefs agreed that judgment writing is an art and there are more than one way of going about it as it is possible to have as many variations as there are judges. See the dictum of Oputa, JSC in Onuoha vs. The State (1988) 3 NWLR (PT.83) 460. See also the following cases of: Adamu vs. State (1991) 250; Awopejo vs. State (2001) 12 SCNJ 293, (2002) FWLR (PT.87) 772; Usiobaifo vs. Usiobaifo (2005) 3 NWLR (PT.913) 665; Ogolo vs. Ogolo (2005) 12 SCNLR 181; Ndukwe vs. State (2009) ALL FWLR (PT.464) 1447. What is important in judgment writing is that the judge should always show a clear understanding of the facts of the case, of the issues involved, of the law applicable and from these, he should be able to draw the right conclusion and make a correct finding on the evidence before him.
However, the point must be made clear that there is no constitutional requirement as to the particular format of judgment writing; however Section 245 of the Criminal Procedure Act provides as follows:
“The judge or magistrate shall record his judgment in writing and every judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision and shall be dated and signed by the judge or magistrate at the time of pronouncing it.”
It is clear from the above provision that every judgment shall contain the points or issues for determination, the decision thereon and the reasons for the decision and shall be dated and signed. The question that may be asked is whether failure to approach the judgment in the con of Section 245 of the Criminal Procedure Act amounts to a denial of fair hearing.

The principle or doctrine of fair hearing in its Statutory and Constitutional sense is derived from the principle of Natural Justice under its twin pillars namely, audi alteram partem and nemo judex in causa sua. The principle of fair hearing is fundamental to the administration of Justice as enshrined under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), to conduct a hearing which is fair to both parties to the suit and without bias or partiality in favour of or against either of them who will thereby be prejudiced.
The question of breach or otherwise of fair hearing is regarded or treated as very fundamental and sine qua non to any proceedings, hearing or trial which is subject to or related to an adjudication process. In other words, each party to a case must be afforded an ample opportunity of defending himself. Thus the question of fair hearing is not just an issue of dogma. Whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case. The crucial determinant factor is the necessity to afford the parties equal opportunity to put their case to the Court before the Court gives its judgment. A complaint founded on a denial of fair hearing is an invitation to the Court hearing the appeal to consider whether or not the Court against which a complaint is made has been generally fair on the basis of equality to all the parties before it. The simple approach is to look at the totality of the proceedings before the Court and then form opinions on objective standards whether or not an equal opportunity has been afforded to parties to fully ventilate their grievance before the Court. See Pam & Anor vs. Mohammed & Anor. (2008) 5-6 SC (PT.1) 83. Deduwa vs. Okorodudu (1976) NMLR 236 @ 246; (1976) 9-10 SC 329; Mohammed vs. Kano N.A. (1968) 1 ALL NLR 411. Ariori vs. Elemo (1983) 1 SC 13 and Effiom vs. State (2003) 3 ACLR 192.
In the instant appeal, the complaint of the Appellant is that the Learned trial Chief Judge did not consider his defence. The Respondents contended that the Appellant was allowed to put in his defence. He was heard by the Learned trial Chief Judge. He was defended by a team of Lawyers who defended and stood by him from plea to judgment. That he was allowed to speak the language he understands and afforded reasonable time and opportunity to put in his defence and that the Appellant offered little or no defence to the overwhelming evidence against him.
I have carefully studied the records of appeal and with due respect to the Learned Senior Counsel for the Appellant, it is not correct to argue that the defences of the Appellant were not considered by the Learned trial Judge as he was given ample opportunity to put his case across. The defence of the Appellant was that of alibi that he went to see his mother who was hospitalized at Abakaliki within that period. That alibi was debunked under cross-examination as the Appellant was physically fixed at the scene of crime. The learned trial Chief Judge held at page 308 lines 20 to 29 of the records and page 309 lines 1 – 3 as follows:
“Evidence shows that 1st, 2nd and 3rd accused persons hold leadership positions in the Lokpanta Youths Movement. PW2 in his testimony in Court stated that they were present at the scene where the deceased persons were killed and after the killing congratulated the Youths for a job well done. Again, 1st, 2nd and 3rd Accused closely followed the events such that they went to the state C.I.D. were (sic) they were arrested. Their interest and involvement as to follow to the State C.I.D. is a clear manifestation that they were fully part of the events of 3rd – 5th January, 2007 resulting in the killing of the deceased persons. The defence offered by them as to why they went to the State C.I.D., is watery and something merely put up to defend themselves.”

As said earlier in this judgment that judgment writing is an art and there are more than one way of going about it and it is also possible to have as many variations as there are judges, I am of the firm view that this judgment cannot be faulted and complies substantially with the provisions of Section 245 of the Criminal Procedure Act. The dictum of Oputa, JSC in Onuoha vs. State (supra) is with due respect only a guide to judges and not a rule of law or practice.
The Appellant testified at pages 215 to 216 of the records of appeal as follows:-
“I am Elvis Chukwuma Iromuoanya (I live at No. 7 New Cemetery Road, Onitsha, I am Personal Assistant Chairperson Road, Decongestion, Anambra State). I am an indigene of Amaekeuru, Lokpanta. I did not take part in commission of the offence. I did not burn any house (se). I was not present at the market square field or school where the deceased were allegedly beaten and tortured. I was present at the scene where the deceased were allegedly killed. I did not join a motor-cycle with one of the deceased as testified. I did not drive to the scene of the incident with the 1st accused or anyone else. I went voluntarily with my cousins to find out why my Uncle Eze Ferdinand Eke was arrested. They pointed at me and I was arrested. I made statement to the police EX. J. I adopt it as part of my defence.
His evidence under cross examination was a complete and total denial of the whole incident. Exhibit ‘J’ his extra judicial to the police was the same as his testimony in Court.
In the circumstances of this case, based on the available evidence on record, it can hardly be said that the Appellant has not had a fair hearing as he was given ample opportunity to present his case and was defended by a counsel or that his defences were not considered. Section 36 of the 1999 Constitution has not been breached and the procedure followed by the Learned trial Judge has not violated the provisions of Section 245 of the Criminal Procedure Act and the principles of natural justice. It was after a careful consideration of the case as presented before him that the Learned trial Judge discharged and acquitted the other seven accused persons arraigned along with the Appellant. I therefore resolve this issue against the Appellant.

ISSUE 2
Was the Learned trial Judge right in his conclusion that the Appellant counseled and procured the perpetrators of the murders?
Learned Senior Counsel for the Appellant submitted that the Learned trial Judge misdirected himself on the evidence and the applicability of Sections 8 and 9 of the Criminal Code to the case before him, Learned Counsel referred to the findings of the Learned trial Judge at page 308 of the record to submit that there was no evidence that the Appellant occupied any leadership position in the Lokpanta Youths Movement at the time of the alleged murders and that the judgment does not refer to such position. He referred to the evidence of PW1, PW2, PW3, PW4, PW5 and PW6 to submit that no such position has been stated. He also referred to the evidence of the Appellant that he does not hold any position in the Youths Movement to submit that the Learned trial Judge simply jumped to the conclusion complained about without any credible evidence and refused to consider Appellant’s rebuttal and that the finding is perverse.
Learned Senior Counsel submitted further that, the Learned trial Judge’s endorsement of the evidence of PW2 is erroneous in that PW2 was the younger brother of one of the deceased persons, Sunday Udeh. His view is that the law is as stated in the case of OPAYEMI VS. STATE (1985) 2 NWLR (PT.5) 101, that the Court must caution itself or be wary, if the evidence before it is tainted by some relationship between the witness and the deceased. He also referred to the case of MBENU vs. STATE (1988) 3 NWLR (PT.84) 615 to submit that the Court ought to have cautioned itself against a hasty endorsement of the witness’s testimony especially when he was a relation who could be actuated by a desire to do vengeance. Learned Senior Counsel also referred to ONUOHA VS. STATE (1989) 2 NWLR (PT.101) 22 on factors for determining credibility of a witness which he submitted the Learned trial Judge failed to consider.
Learned Senior Counsel also submitted that there was conflict on material issues between the testimony in Court of PW2 and Exhibit C on the other hand and inconsistencies on material points between his testimony and that of PW4 who was also said to be an eye witness. He submitted that the Court cannot pick and choose what to believe when faced with inconsistencies and conflicts. He relied on the cases of ONUBOGU VS. STATE (1974) 9 SC 7 AT 20 – 21; NWABUEZE VS. STATE (1988) 4 NWLR (PT.86) 16 to also submit that it is not the function of the court to embark on the task or reason for the inconsistencies. He submitted that PW2 was unreliable.
It is further submitted that the finding of the Learned trial Judge that the fact of Appellants’ voluntary visit to the police to know why his uncle was being detained was evidence of guilt and closed his eyes to the evidence of PW5 on the issue is untenable. In conclusion, it is submitted that there was no basis for applying the provisions of Section 8 and 9 of the Criminal Code as there was no credible evidence that the Appellant formed a common intention to effect an unlawful purpose. He referred to the cases of AKANNI VS. QUEEEN (1959) WNLE 153 AND AJAO VS. QUEEN WNLR 166, to submit that there was no common intention to commit an unlawful purpose and urged us to resolve the issue in favour of the Appellant.
In his response, the Learned DPP for the Respondent submitted that the Learned trial Judge was right when he came to the conclusion that there was evidence of such a common intention between the perpetrators of the offence and the Leadership of the Lokpanta Youths Movement who were dearly identified and mentioned in evidence. He referred to the evidence of PW3 at page 174 lines 5 – 15 of the records and under cross examination at page 178 that, “I know that 1st, 2nd and 3rd accused persons came on their own to the State CID. I told the police they were among those that killed the persons.”
He submitted that PW1 told the Court that the Appellant, 1st and 3rd accused are members of the Lokpanta Youths Movement.
Learned Counsel referred to Section 7 of the Criminal Code to submit that the law on procuring is settled and submitted that the Appellant in the face of all the evidence against him cannot claim ignorance of the offence of murder of the deceased persons. He referred to the cases of EDET OBOSI VS. THE STATE (1905) NMLR 119 and R vs. IDIKA (1959) 4 FSC 106 to submit that in addition to other acts done by him, he was seen congratulating the perpetrators of the murder at the scene of crime. It is the view of Learned Counsel that in a case of this nature where a mob descended on their victims, common intention to commit the offence of murder can be inferred and that the Learned trial Chief Judge rightly inferred common intention to achieve a common purpose, to wit, the murder of their victims. He also referred to the following cases: AHMED VS. THE STATE (1998) 61 LRCN, 4410; OGU OFOR VS. THE QUEEN (1955) 5 WACA 4; STATE VS. OLADIMEJI (2003) 109 LRCN 1098 AT 1313 – 1314, IGYEGH ATANYI VS. THE QUEEN (1955) 15 WACA 34 and ALARAPE and ORS. V. THE STATE (2001) 84 LRCN 600.
Learned Counsel further submitted that where a number of persons acting in concert joined in the unlawful assault which resulted in the death of their victim, it is not mandatory for the prosecution to establish the precise act of a particular accused person that directly caused the death of the deceased. He referred to the case of: MUONWFM and ORS VS. QUEEN (1963) ALL NLR 95 on the conditions to be satisfied as follows:-
1. There must be two or more persons
2. There must be a common intention
3. The common intention must be towards prosecuting an unlawful purpose in conjunction with one another.
4. An offence must be committed in the process
5. The offence must be of such a nature that its commission was a probable consequence of the prosecution of such purpose.
The case of ALARAPE and ORS. vs. THF STATE (1987) 1 NSCC 305 AT 310 and Sections 8 and 9 of the Criminal Code was referred to. He finally submitted that in this case there was a common intention between the Appellant and others who joined in the killing of the deceased persons and the Appellant cannot deny having not had a hand in the killing of the deceased persons. The Court was urged to resolve this issue against the Appellant.
The main contention here is that the Learned trial judge misdirected himself on the evidence and the applicability of Sections 8 and 9 of the Criminal Code when there was no evidence that the Appellant occupied any leadership position in the Lokpanta Youths Movement at the time of the alleged murders. Reference was made to the evidence of all the prosecution witnesses who testified that they know nothing about the Youths Movement or the Appellant occupying any leadership position. With respect, this submission of the Appellant’s Counsel is not true. He referred to the evidence of the Appellant who himself denied holding any position in the Youths Movement and denied organizing the youths to kill the deceased person.
As it appears, the testimony of the Appellant is a complete denial of the knowledge of the existence of the whole episode that culminated into the murder of the deceased persons. However, evidence abound from the records of appeal that the Appellant was fixed at the scene of crime both at the Market Square where the deceased were tortured to where they were murdered. The Learned trial Judge based on the evidence adduced before him found that there is evidence of a common intention between the perpetrators of the offence and the leadership of the Lokpanta Youths Movement who were clearly identified and mentioned in evidence. The testimonies of PW1, PW2, PW3 and PW4 clearly stated out on the role played by the Appellant. The Learned trial Judge was right in the circumstances to invoke the provisions of Sections 8 and 9 of the Criminal, Code to deem the Appellant as having killed the deceased persons. The Sections provide as follows:
8. “When two or more persons form a common intention to prosecute an unlawful purposes in conjection with one another and in the prosecution of such purpose, an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”
9. When a person counsels another to commit an offence and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counseled or a different one or whether the offence is committed in the way counseled or in a different way, provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the Counsel.
In either case the person who gave the Counsel is deemed to have counseled the other person to commit the offence actually committed by him.”
In the instant case the Appellant denied any knowledge of Lokpanta Youths movement and the torture and killing of the deceased persons. The Learned trial Judge disbelieved him in view of the overwhelming evidence before the Court. PW2 testified to having seen the Appellant where the deceased persons were being tortured at the market square where the torture was taking place together with 1st and 3rd Accused persons. PW2 testified further that he saw the Appellant at the hilltop where the deceased persons were being butchered and their bodies set ablaze all in his presence. He was also seen together with the other accused persons where 1st accused was congratulating the Youths for a job well done.
The law on procuring or counseling is settled. Counseling or procuring must involve some positive act. There must be some active encouragement to those who do the deal. This fact was established from the evidence of the prosecution witnesses. The Appellant in the face of all the evidence against him that fixed him at the scene of crime cannot feign ignorance of the murder of the deceased persons. The evidence of PW1, PW2, PW3 and PW4 clearly shows his complicity.
By Section 7 of the Act, any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission, would have constituted an offence of the same kind and is liable to the same punishment as if he had himself done the act or made the omission, and he may be charged with himself doing the act or making the omission.
I therefore resolve this issue against the Appellant.

ISSUE 3
Was the trial Court right to have found the Appellant guilty of the offences of murder charged?
Learned senior counsel for the Appellant submitted that the prosecution’s case against the Appellant was not made out and the Court was wrong to have found the Appellant guilty of the offences charged. His argument on issue 2 was adopted. He also referred to the evidence of PW1 at page 153 of the record where he testified that the police recovered bones and lumps of flesh at the scene of the crime and that PW2 and PW4 were present to submit that PW2 did not mention such fact in his entire evidence in court and his statement Exhibit C, that PW2 only stated that he later returned to the scene of crime alone and saw the three bodies burning. That PW5, the Investigating Police Officer stated in his evidence that, “we picked something that looked like burnt flesh” and that the Police Investigating report at page 35 -51 of the record does not mention this all important fact.
Learned Senior counsel referred to the evidence of PW5 under cross examination that “it is correct that the accused and other persons have been charged to court before I discovered the Exhibits” to submit that the Appellant and others were arraigned in court long before the burnt items that looked like human flesh was recovered and that pw6 did not fare better under cross examination. He thus submitted that despite these glaring lapses, contradictions and inconsistencies in the case of the prosecution, the Lower Court shut its eyes to this point raised in the counsel’s address. That the record of the Court is silent on this issue while Section 149(d) of the Evidence Act applies forceably to the situation. He submitted that the failure to produce the forensic report of the alleged “bones and lumps of flesh” or something that looked like burnt flesh is fatal to the case of prosecution. Reliance was placed on the case of Abele & Ors. vs. Tiv Native Authority (1965) NMLR 425. Learned Counsel finally submitted that there is no credible evidence that:-
i. The death of anyone took place.
ii. That Appellant caused the alleged death; and
iii. Appellant did nay act with the intention of causing the death of anyone.
It is therefore submitted that the judgment of the Lower Court is perverse and the Court was urged to resolve same in favour of the Appellant.
In his response, the Learned D.P.P. for the Respondent submitted that the Learned trial Chief Judge was right to have convicted the Appellant and others for murder as his decision was borne out of the facts of the case presented before him. That of the 6 witnesses fielded by the prosecution, four were eye witnesses in the gory spectacle of the death of the deceased persons as the witnesses saw the perpetrators of the dastardly act and the role each accused persons played.
On the contention that nobody produced the burnt flesh or human parts before the Court and that Section 149(d) of the Evidence Act ought to be invoked, Learned Counsel submitted that on a charge of murder, the fact of death is provable by circumstantial evidence notwithstanding that neither the body nor any trace thereof has been found and that the prisoner has made no confession of any participation in the crime. He referred to the cases of QUEEN VS. SALA (1938) 4 WACA 10 and R. VS. ONUFREJUCYK (1955) 1 QB 388 to submit that this is so where there are no eye witnesses to the crime. He submits that corpus delicti is no defence where there is an eye witness account for the murder of the deceased persons. He further submitted that in the instant case, it was not in doubt that the deceased persons were killed. He referred to the evidence of PW1 at page 153 lines 1 – 7 , PW2 at page 159 lines 21 – 25 and page 60 lines 1 – 2 to submit that the evidence against the Appellant from all the prosecution eye witnesses overwhelming,
Learned Counsel referred to Section 319 of the criminal code to submit that the prosecution must establish the following beyond reasonable doubt before an accused is convicted:
1. That the deceased has died.
2. That the death of the deceased resulted from the act of the Accused/Appellant; and
3. That the act of the accused was intentional with knowledge that death or grievous bodily harm was the probable consequence.
The following cases were cited in support: NDUKWE VS. THE STATE (supra), ABINTA OKENDU UBANI & ORS. V. THE STATE (2004) 49 WRN 32 AND OGBA VS. THE STATE (1992) 2 NWLR (PT.222) 164. He also referred to Section 138(1) of the Evidence Act. Cap. 112 LFN 1990 on the duty of the prosecution to prove the guilt of the accused person beyond reasonable doubt. On proof beyond reasonable doubt, the following cases were referred to: BASIL AKALEZI VS. THE STATE (1993) NSCC (PT.1) 188 AT 196 and MILLER VS. MINISTER OF PENSIONS (1947) 2 ALL ER. 377.
On the attack on the relationship between the prosecution witnesses and some of the deceased person, learned counsel submitted that the mere fact witnesses are relatives or friends of the deceased does not mean that they are not competent witnesses for the prosecution. The following cases were referred to: EREHIA VS. THE STATE (1982) 4 SC (REPRINT) 47, CHUKWU VS. THE STATE (1992) 1 NWLR (PT.217) 225, ONAFOWOKAN VS. THE STATE (1986) 2 NWLR (PT.23) 496; AND OGUNNEZEE VS. THE STATE (1998) 58 LRCN 35121 (1998) 4 SC 110, to submit further that a case is not lost on the ground that those who are witnesses are members of the same family or community, what is important is their credibility and that they are not tainted witnesses. The Court was urged to resolve this issue in favour of the Respondent against the Appellant.
This issue relates to whether the prosecution has proved its case against the Appellant beyond reasonable doubt in that the corpus declicti was not recovered and that PW2 AND PW4 made no mention either of the recovered bones and lumps of flesh at the scene of crime in their statement or was the forensic report tendered in evidence before the trial Court which he submitted is fatal to the prosecutions’ case.
In a charge of murder contrary to Section 319 of the Criminal Code, the prosecution needs to establish the following ingredients of the offence beyond reasonable doubt before an accused is convicted:-
1. The deceased has died
2. That the death of the deceased resulted from the act of the accused person and
3. That the act of the accused was intentional with knowledge that death or grievous bodily harm was the probable consequence.
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 leads to the irresistible conclusion that the accused committed the offence charged,
(c) By direct evidence of eye witnesses who actually saw the accused committing the offence.
In the instant appeal from the records, 6 witnesses testified for the prosecution and 4 out of the 6 witnesses were eye witnesses who gave account of the gory spectacle of the deceased persons. I find it pertinent in the circumstances of this case to refer to the evidence given by the prosecution witnesses particularly the evidence of PW1, PW2, PW3 and PW4 therefrom:
“PW1 Chief Ofo Okoye Ofo was the General Secretary of Lokpanta Improvement Union and the present General Secretary of Lokpanta Clan Improvement Union. He described the Appellant as the General President of Lokpanta Youths Movement.
He continued at page 151 lines 10 to 13 of the records of appeal that,
…on 26/12/06; the Appellant convened a meeting of their members in his house where they resolved that all the signatories to the petition should be exterminated so that nobody will ever reveal their deeds to the police.”
He testified further that
“On 3/1/07, the women group came to his house to threaten him, “that you and your people are the people reporting what the youths are doing to the police…” others shouted “yes we shall show you that we are in power today” and moved away from his compound. See page 151 lines 15 – 27 of the records of appeal.
He continued from page 151 line 27 to pages 152 – 153 as follows:-
“Following day 4/1/07 about 9:30pm I heard motorcycle entering my compound. I heard a voice commanding “bring him out” I recognized the voice as that of Godwin Egwim (Ichie million). The moon was shining bright that day, I piped through the window from my apartment and saw the 3rd accused; Okwudili Ofo (at large) Godwin Egwim (alias Ichie million) Ifeanyichukwu Nwafo, Monday Nwafo, Emeka Njoku and Victor Njoku. Other waited at my gate. As they were exchanging words with my wife at the backyard, they pushed her down and entered into my wife’s bedroom. From there they opened a door leading to my own bedroom. Before they entered my bedroom I jumped out from the window to my backyard; 3rd accused and Emeka Ofo raised alarm. They and all those outside pursued me. I jumped over my fence and escaped into the bush. In the bush I was hearing my family crying. They pursued me into the bush but could not get me. From that bush, I ran to Ugwueme in Enugu State. In the morning, I traveled to Isuochi where I reported to the police. It was at the police station that I learnt from other officers of the Union who escaped that my house had been burnt by “these people”. And that three of our Union Officers had been killed by them, and their houses burnt. I moved with a team of policemen to my house. I saw that all my three houses had been burnt down; we also moved to the compound of other Union officers. The house of Cornelleus Ojiogo was burnt; Felix Ude (Asst. Secretary) was burnt down including his oil pressing machine; house of Johnson Onwuegbuchulam the Union President was burnt down. The house of Hon. Chief Lemy Ogbonna a Union Officer was equally burnt down. The police took photograph of all these burnt down houses. The police with me also visited the scene where the accused and their men killed Johnson Onuegbuchulam (Union President). Chief Cornelleus Ojiogo (Treasure) and Chief Felix S. Ude (Asst. General Secretary). We saw there bones and lumps of flesh. The son of Cornelius Ojiogo (victor) was with us. The brother of Felix (Ebere) was also with us. The police removed to the police station some bones and lumps of flesh. They were charred as objects burnt by fire.”
PW2 Ude Emmanuel Eberechi testified at pages 159 to 163 of the records of appeal as follows:
“On 4/1/2007 in the night, I came back from a traditional marriage, My brother was lying on the bench outside with his wife. As I entered into the backyard, soon thereafter I heard a loud shout of crying. I rushed out to find out what was happening. It was my brother’s wife who was crying. She was crying and running towards the main road. I ran after her. She fell down on the way I met her. I asked her what happened, she told me that people kidnapped her husband where they were lying outside. She told me the people came into the compound on three motorcycle. They dumped him on a motorcycle and moved. She told me she did not see the face of the people. I chartered two motorcycles and chased the people. I ran round all through our place, but could not see them. I then moved up to “Better Life” junction and complained to the police on duty there. I went everywhere till morning but could not locate them. We got information that morning that it was Lokpanta Youths they took him that night and kept him through the night in the house of the traditional ruler of Nkomi Lokpanta; that they were now at Nkwo market square. Chief Felix Ude said to the person he met that we should come there to see him; that he was not the only person being held there. We trooped to Nkwo market square; myself, my mother and my brother’s wife. When we got there I saw Chief Sunday Felix Ude and one Cornelius Ojiogo and Johnson Onwuegbuchulam. They were sitting on the ground with bruises of marks of flogging. While we were there, they continued to flog them using all softs of objects including knife to flog them. The accused were among the persons and others not present here at the place they were being flogged. I also saw the women who had come to our place on 3/1/07. I was afraid, but at a time wanted to jump into their midst, but someone behind me told me to get out and not allow them notice me, I saw the 4th and 5th accused among the midst of the youths flogging them. Also among the youths in the midst were 1st, 2nd, 3rd, 6th, 8th accused (I do not know his name); also 7th accused (I do not know his name). I saw all of them, including those not present in the dock. Some of those not in Court, were Godwin Egwim (alias Ichie million); Nwabueze Nwankwo; Kenneth Ude (alias Ikpeakpa); Okwudili Ofo (alias Champion); Ignatius Eze (alias naked wire); Amandi Okere; Amandi Njoku; Emeka Njoku; and others I do not know their names. They are not here because when the police came they ran. Some of them have re-surfaced in the village, I have not told the police of their presence. All the accused persons (the men) took part in flogging them. The 5th accused was giving them sticks they used in flogging them and even suggested to them to get “udara” sticks that would not break. After the flogging they were weak and every part of their body soaked in blood. I also saw them flogging one small boy. I was told is the son of one Cornelius Ojiogo who is of hard-hearing. “Ichie million” stood up and tied a red cloth around his head. He commanded three “okada” riders to carry the three persons being flogged on “okada” towards the side of Umudi village in Lokpanta: As they were going I was following behind. I made sure they did not notice me. When I got to the place called Ameke Uru; I saw the women singing in praises of Eze Obike who drove passed them. When I saw the Eze came out. I greeted him and introduced myself. I told him I am the brother of Chief Sunday Felix Ude; that they youths were taking them towards Umudi village. That he should please go to rescue them before they killed them. The Eze did not talk to me but drove away. I then went to the house of Eze Ferdinand Eke. I told the Eze what was happening, that they wanted to kill the Chief. He told me that the police I complained to at “Better Life” junction and my mother and my brother’s wife had also come to complain to me of what was happening at Nkwo market square. He told me that since it was happening at Nkwo market, he had no jurisdiction there; that we should complain to Eze Ukomi, as I came out from the Eze’s place, I saw the 6th accused with other youths carrying with them eight motor tyres. They were also holding 20 litres of petrol in jerry can, when they passed I was afraid and said to myself “they really mean this”? At this time, they started to block the road with electric poles, palm stem, etc as they took the Chiefs along. I then stopped following after them. I decided to cut off through other road. They moved away from Lokpanta area and headed towards Awgu. When they reached our boundary between Lokpanta and Awgu, they branched into the bush by the left hand side. That was the way through which the straw berg company dug sand when they constructed the express way. They climbed one flat hill, unto the top. They now brought down the three Chiefs from the motorcycle. They also brought down to the place the boy who is of hard hearing. They lay them flat on the floor; they were all weak. They commanded the small boys to stoop down. “Ichie million” addressed those who got to the place. He asked them not to flog them any longer. At this time, 1st, 2nd and 3rd persons came there in their vehicles they came in one Mitsubish car. They used the car to block the entrance into the bush.
They left the driver in the far and moved up to the hill where the youths were gathered. As soon as they got to the place where the chiefs were lying, 1st accused took a matchet from one of the youths and cut off the three person lying on the floor. There was shouting indicating that one of the four ran away. Some of the youths pursued the person that ran. They started shooting guns, 1st, 2nd and 3rd accused moved away from the scene towards their car. The youths then started to hit and even cut them (the three) with matchets and some hit them with stones. I saw all of them (the accused) and others not here at the scene; they all took part in the killing. The 6th accused was the one who confirmed Chief Felix Sunday Ude dead, by using to put into his annus. The 7th accused in company of the old man not here in the court was hitting, the deceased with club. The others were all participating in the beating. The 4th accused was particularly hitting vehicle hitting the gug (okele). The 5th accused was mainly wrapping “Indian hemp” for the youths. The women leader, Felicia Ohanezim, was giving drinks to the youths and calling them praise names: “Bakasi”. When then confirmed that they were dead, “Ichie million” laid tyres on them and set them ablaze.
The youths then started to sing. They then moved out and when they got to where the 1st accused was he began to shake them. They then sang and danced as they returned to the village. I was hiding on a side of the bush to observe all these things. I was there to monitor all they did. They did not see me as I hid myself. They never saw me. I followed them up to the market square. I later returned to the scene where the people were killed. I saw the bodies of the three persons set ablaze. The fire was still burning. I was able to identify the bodies including my brother’s body. I then moved away from the scene and returned to our village by other road. When I got home, people were coming to our home. They were on condolence as to what happened, sympathizing with me. As we were contemplating to go to report to the police, the youths came again on motorcycles and fuel. We all ran away. I ran into a side of the bush to see what was happening. I saw them destroying our house. They moved to Felix Ude’s oil mill, pulled it down and set it ablaze. They entered the yam ban and removed the yams and threw them into the bush. They continued this until about 7p.m. they then moved out to the house of Chief Godwin chukwu who lives close to us. As no nobody was there they used their “weapons” to break the windows and lourvers etc. They then moved away on their motorcycles towards the Nkwo market square. I followed them up to Nkwo market and saw them celebrating. The women were serving them with food and drinks. They were shooting into the air. 4th and 5th accused were among the women. The accused were all present.
He stated further under cross examination that he did not tell the police in his statement Exhibit C that he saw 1st Accused (Appellant) cut one of the deceased with a matchet. That he said in Exhibit C that he saw when the three men were killed.

PW3 Chief Lemi Ogbonna testified at pages 169 to L70 of the records as follows:
“…I remember January, 2007. Something happened. On 3/1/07 I went to Enugu to buy materials for my photographic work. When I returned and got to a place called Ihite, I met many women on the way chanting war songs. Some of them wanted to block me, but later allowed me to ride my motorcycle pass them. When I got home I saw that they covered my doors and other areas with life leaves. I asked the children playing in the compound, they told me some group of women came chanting songs. I knew it was the women whom I met on the way. I returned to know what was wrong. I went and met them. I asked their leader, Mrs. Felicia Ohanezim. At this point the 5th accused cut in and warned me that as long as we are disturbing the Youths who have been asked to govern the community that we would see “hell” One Felicia Iro told me that the life leaves in any compound was a sign of warning to me. One Mgbeke Baba and Otolahu Okorie (alias Ikuku) started to sing the song “Iwe lewe unu, ee iwe newe anyi.” Their leader, Mrs. Ohanezim cheered them up and asked whether they would carry out their plans, they said “yes” I then returned. When I got home I remove the leaves.”
He went on to testify at pages 174 to 177 lines 1 to 5 of the records as follows:
“They saw it that we wrote petition against them. The petition was written on 9th October, 2006. We started having problems with them. That continued to the present problem which culminated to this matter in court. On the said day, about 10:30pm. As I was about to go to sleep I heard people discussing and talking about how Chief Johnson Onwuegbrichufam, Chief Felix Ude were being beaten and flogged at the National School field. When I heard that since I am one of the Union members, I got up and wore my shirt and left with my re-chargeable lantern and handset to go to see what was happening. The moon-light was very bright. I went to the scene going through in hiding. I got to the scene and hid myself somewhere that I could not be seen. From where I hid myself I saw that Felix Ude and Johnson had their hands tied behind their back and laid on the ground. I saw four of the accused in their midst. They are 1st accused 2nd accused 3rd accused and 6th accused. I was there and heard when one Godwin Egwim (alias Ichie Million) was telling the group that they went to the house of Chief Ofo Okoye Ofo (PW1) and he escaped through the window. After they heard the story, they praised Godwin Egwim and all left that night. The 1st, 2nd, 3rd and 6th accused, and two others left after Godwin had talked to them. Those remaining behind included Godwin Egwim, Nwabueze Nwankwo, Ochiri Uzoechi, Ignatius Ezekwe (alias) naked wire, Okwudiri Ofo (alias champion), Felix Ude (alias Akwara Nkwu) Ifeanyichukwu Nwafo (alias Escapee), Monday Nwafo (alias pushy) and others I cannot remember their names. They started beating them calling them petition writers; that they had written their last petition. At a time, Nwabueze asked Godwin Egwim what they would do to those arrested. That they would take the two to the Eze’s palace (palace of Eze James Egwu) till the next morning. That when get the others including myself, Collinus Ojiogo Leonard Nwankwo, Uchechukwu Chukwu (those who signed the petition, they would now know what to do them. Godwin then stationed themselves to various locations in order to get us caught. They said that they would go for us early, particularly Ojiogo who normally goes out early in the morning. Godwin directed them to shoot and break any one’s leg who resist arrest and carry him to their agreed place. Ichie million had an Hausa- type of knife and gun. Nwabueze Nwankwo, Okwudiri Ofo and lgnatius Ezekwe had only guns. They then untied Johnson and Felix Ude and dragged them up and took them to the Eze’s Palace. I then sneaked out from where I was hiding as they left. Because of what I heard I could no longer go back to my home. I trekked through the bush about two kilometers towards our boundary with Isuochi people. I was in the bush till about 5.00am, I then crossed over to Isuochi area and walked towards the police station. I got to the Umunneochi Police Station about 7:00am. When reported to the police my experience, since the night they did not take it serious. They asked me to sit down. About 30 minutes later the PW1 arrived. Later the wives of Ojiogo and Ofo Okoye arrived. They told us that Ojiogo was caught together with his son Ugochukwu and took them away. About 4:30pm. I got a message that the three persons that were caught, Chief Collinus Ojiogo, Chief Felix Ude and Chief Johnson Onwueguuchulam had been killed. I took the message to the DPO. Thereafter, I got another message that my house had been set ablaze. As we were still waiting two vehicles drove in carrying policemen from the state C.I.D. wanting to know what was happening at Lokpanta. When they arrived the DPO joined the team from the State C.I.D. and us, to Lokpanta that night (evening). We passed through Lekwesi to see what happened in the house of Chief Felix Ude. We saw that his engine house was burnt. We also got to the house of Ojiogo, his house was also burnt. We also got to the house of Ofo Okoye, his house had also been burnt. We got to my house and saw that my house had been burnt together with my machine (motorcycle). We also saw that John Onwuegbuchulam’s house had been burnt. On the 6th the men of the State C.I.D. took us to their station in Umuahia. At the station, the police told us not to bother mentioning all names as they had no money to purchase full-scalp papers. That it was for us to name “two or three persons” and say and others. That at the court we would then give the names of the others. I was not happy about this idea of naming only a few persons. Therefore on the 12th we told the police that we would make additional statement. We then listed the full names of those we remembered that took part in the murder and arson cases. Johnson Onwuegbuchulam was the President of Lokpanta improvement Union. Chief Ude was an executive member of the union. Ojiogo was an executive member of the union. Ojiogo was an executive member of the union. I have not till date seen the two I saw that night tied again. I have since seen Ugochukwu, but have not seen his father Ojiogo. Counsel says that is all for him.
PW4 Victor Oji testified at pages 181 line 5 to page 183 of the records of appeal as follows:
“In the morning of 5th Jan. 2007 I saw the accused and others I do not know breaking (sic) my father’s door. They dragged my father out. All the accused carrying matchets and guns. My father was lying in room when they pulled him out from his bed. My father was shouting asking them what was wrong; I too was so asking them. They asked him to climb a motorcycle, he tried to struggle with them but when he saw he could not resist them he climbed the motorcycle and they drove him away. I then took my father’s motorcycle and ran after them. I got to a market square and saw where he was kept with two others who were tied by the legs. There is a school close to the market. My father is Corlineous Oji. The other two men were Felix Udeh and Sunday Onwuegbuchulam. When I got there they were beating my father and the other two men. When I got to the scene, the 1st accused asked those beating them to hold me. They held me and kept me with the three men and were beating me as well. All the accused and others not here were among those beating us. They tore our clothes leaving us with pants only. They were beating us with knives and sticks. They later put us on motorcycles and took us away. The 6th accused was sitting on the motorcycle with my father and holding a matchet. The 3rd accused was sitting behind Sunday on same motorcycle, also holding a matchet. One Godwin Egwim sat with Sunday Onwugbuchulam also with a cutlass. 2nd accused sat behind me with a matchet. They took us to the boundary between Enugu and Abia close to a hill. When they got to the scene they dropped the three men on the ground and started beating them. They also put me on the ground and were beating me. As they were beating us they were drinking, smoking hemp and celebrating as during Christmas festival. They brought out tyres and fuel. The 1st accused brought out a matchet from a car booth and cut off my father’s right hand. One Ugochukwu shot one Sunday Onwugbuchulam with a gun. One Godwin Egwim was putting on only pant. He tied red cloth on head and hand and took a matchet and gave several acts on Sunday Udeh. 1st accused then asked the people to cut the three men into pieces so they would easily be burnt. They then descended on them, giving them matchets cuts. This time cut Godwin then moved towards me with a matchet. I was afraid. He stabbed me with a knife and gave me a wound I jumped away into a pit. I was hearing them shoot at me. They did not get me, and I ran away by a track road. From the bush I escaped to our compound to tell my people what happened. At the time I got to our compound I found that our house had been burnt. I now started looking for my people. I later saw my sisters, they told me my mother had gone to the police station to report. I and my sisters now went to meet our mother at the police station. There I told the police what happened. I made statement to the police. After that incident I have not seen the three again, my father and the two other men. I saw them slaughtered before I ran away. 4th and 5th accused were among the women who were spitting on the three men at the market square and clapping for the men beating the three men including my father. 4th and 5th accused with other women also followed to the place the men were slaughtered. They were standing at the point vehicles were parked and clapping for the men from that distance where they saw everything. All the accused took part in the act. My father was a politician. I do not know the party he belonged to. I have never had any problem with the accused. Nobody has ever reported me to the police. Counsel says that is all for the witness.”

From the evidence as reproduced above, there was no dispute as to the death of the deceased persons namely Sunday Ude, Chief Corlineus Orjiogo and Johnson Onwuegbuchulam. It is trite that the ingredients of the offence of murder must co-exist and where one of them is absent or remain unproved or tainted with doubt, then the prosecution would have failed to prove the case of murder against the deceased. This onus remains throughout the trial with the prosecution and never shifts.
In the instance case, from the evidence adduced by the prosecution witnesses as reproduced in this judgment, leaves no one in doubt that the death of the deceased persons resulted from the act of the Appellant which he counseled and procured the other accused to partake in the killings and the act of the Appellant in the circumstances was intentional with knowledge that death was the probable consequence of his act.
By Section 138(1) of the Evidence Act Cap 112 LFN, 1990, if the commission of any crime by a party to any proceedings is directly in issue in any proceedings Civil or Criminal, it must be proved beyond reasonable doubt. However, proof beyond reasonable doubt does not mean proof beyond any shadow of doubt and it is not attained by the number of witnesses fielded by the prosecution. It depends on the quality of evidence tendered by the prosecution. The Court can act on the evidence of one single witness if that one witness can be believed given all the surrounding circumstances. In Miller vs. Minister of Persons (1947) 2 ALL ER 377, it was held that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man, as to leave only a remote probability in his favour which can be dismissed with the sentence of course, it is possible but not in the least probable, the case is proved reasonable doubt. See also Basil Akalezi v. The State (1993) NSCC (PT.1) 188 @ 196. The learned trial Judge was right in convicting the Appellant of murder as the case against him has been proved beyond reasonable doubt.
The Learned Counsel for the Appellant attack the relationship between the prosecution witnesses and some of the deceased persons and submitted that the Court below did not cautioned itself before accepting the evidence of the prosecution witnesses related to some of the deceased persons which occasioned a miscarriage of Justice.
It is now settled that the fact that some witnesses for the prosecution were related to the deceased does not mean that they were not competent witnesses to testify for the prosecution. It was not shown in the instant appeal that they were biased. In any case, the evidence on record of other eye witnesses also corroborated those of the said relations of the deceased.
There was no miscarriage of Justice occasioned by the failure of the trial Judge treat the evidence of the relations of the deceased with caution, See Arehia vs. The State (1982) 13 NSCC 85, and Onofowokan vs. State (1986) 2 NWLR (PT. 23) 496.
Again, in the instant appeal, I did not see any contradiction in the evidence of prosecution witnesses as argued by the Appellant’s Counsel. The fact that PW1 stated in his testimony before the Court that the police recovered bones and lumps of flesh at the scene of crime and that PW2 and PW4 were present and the fact that PW2 did not mention this fact does not make the evidence of the two witnesses contradictory. At least PW2 testified that he went back to the scene and saw the bodies burning. At best, it could be said that there were some minor discrepancies in the evidence of the witnesses which is always expected. The evidence of the two witnesses is not speaking the opposite. A piece of evidence is contradictory to another when it asserts or affirms the opposite of what that other asserts and not necessarily when there are minor discrepancies in details between them. A contradiction between two pieces of evidence go rather to the essentiality of something being or not being at the same time, whereas, minor discrepancies depends rather on the persons astuteness and capacity for observing details. Thus, two pieces of evidence contradict one another when they are by themselves inconsistent. There is no such inconsistency in the present case. See Kenneth Ogoala vs. The State (1991) 2 LRCN 660 @ 679; Ayo Gabriel vs. The State (1989) 5 NWLR (PT.122) 457; Sale Dagaya vs. The State (2006) 134 LRCN 397; Atano vs. A.G. Bendel State (1988) 2 NWLR (PT.75) 201; Kalu vs. The State (1988) 4 NWLR (PT.90) 50. For a contradiction to be fatal to the prosecution’s case, it must go the substance or root of the case and not of a minor nature. In essence, the contradiction that would make a Court disbelieve a witnesse(s) has to be on a material point in the case and what is material however depends on the facts of each case. See Ndukwe vs. The State (2009) 2 SCM 147.
Again, I do not find any merit in the argument of Learned Senior Counsel for the Appellant on failure of the Learned trial Chief Judge to invoke Section 149(d) of the Evidence Act. Section 149(d) of the Evidence Act does not apply to the circumstances of this case. As a matter of fact, a conviction can be properly secured in the absence of Corpus delicti where there is a strong, direct evidence as shown in the instant appeal. See Ogundipe & Ors. vs. Queen (1954) 14 WACA 458; and Edim vs. State (1972) 4 SC 160 @ 162, where the Supreme Court held that where there is positive evidence that the victim had died, failure to recover his body need not frustrate conviction.
See also Jua vs. State (2008) ALL FWLR (440) 766 @ 791.
This issue is therefore resolved against the Appellant.

ISSUE NO, 4.
Was the Learned Trial Judge correct in upholding the case of the prosecution in the face of the Appellant’s Alibi?
In arguing this issue, learned Senior Counsel for the Appellant referred to the evidence in chief of the Appellant at page 216 to 217 of the record where he stated that he was neither at scene of the alleged torture variously said to be ‘Market Square’ or National School Field and under cross examination where he maintained the same position and to also exhibit J, the Appellant’s Statement to the Police to the effect that he came from Onitsha to see his mother and on discovering that she was sick and was hospitalized at Abakiliki where he stayed from 3/1/2007 to 6/1/2007. He also referred to the evidence of PW5, the Investigating Police Officer to submit that the learned trial Judge preferred the contrived and contradicted evidence of PW2 and submitted further that alibi cannot be overlooked or brushed aside except it is neutralized by greater and more convincing evidence. He referred to the case of Nwabueze vs. State (1988) 4 NWLR (PT.86) 16 to submit that the prosecutions’ case confirmed that the Appellant voluntarily went to the Police Station and could not publicly take part in the brutalization and murder of the three deceased persons, and then voluntarily walked to the Police Station to report himself.
In his response, the learned Counsel for the Respondent submitted that the Appellant claims he was not at the scene of crime. That he came from Onitsha to see his mother and discovering she was sick and hospitalized at Abakiliki, he left for Abakiliki where he stayed from 3/1/2007 to 6/1/2007. However, he admitted under cross-examination of meeting the women who were demonstrating and was fixed at the scene of crime. He submitted, the burden of leading evidence of the fact and providing material that will led to the establishment of the defence is on the accused. He referred to the case of Ndukwe vs. The State (supra); Ukwunnenyi vs. The State (1989) 7 SC (PT.1) 64, (1989) 4 NWLR (PT.114) 131. He submitted that in the instant case, PW1, PW2, PW3 and PW4 all saw and fixed the Appellant at the scene of crime and their testimony as to the participation of the Appellant in the murder of the deceased was an equivocal. The following cases were referred to: PATRICK NJOVENS & ORS. VS. THE STATE (1973) 5 SC (REPRINT) 12; GACHI & ORS. VS. THE STATE (1965) NMLR 333; YANOR & ANOR. VS. THE STATE (1965) NMLR 337 AND NWABUEZE VS. THE STATE (1988) 7 SCNJ (PT.11) 248 AT 260. It is submitted further that once an accused person is fixed at the scene of crime, his defence of alibi must fail. The following cases were also referred to:
IME DAVID IDIOK VS. THE STATE (2008) 4 – 5 SC (PT.1); BASSEY AKPAN ARCHIBONG VS. THE STATE (1989) 12 SC 203, (2007) 143 LCR 228; AND EZEKIEL ADEKUNLE VS. THE STATE (1989) 5 NWLR (PT.123) 505. It is submitted that the assertion that the Appellant went to visit his mother in the hospital at Abakiliki does not create or approve an alibi as he was fixed at the scene of crime by all the prosecution witnesses. The Court was urged to resolve this issue against the Appellant.
The main crux on this issue is that the Appellant testified that he was neither at the scene of the alleged torture at the Market square nor National School field. That in Exhibit 1, he stated at earliest opportunity that he came from Onitsha to see his mother and discovered that the mother was sick and hospitalized at Abakiliki, he left where he stayed from 3/1/2007 to 6/1/2007 but admitted under cross examination of meeting with the women demonstrating. It is submitted that this defence was considered by the trial Court.
The expression “Alibi” simply means “elsewhere”, that having regard to the time and place when and where he was alleged to have committed the offence, he could not have been present. Indeed, the plea of alibi postulates the physical impossibility of the presence of the accused at the scene and of his presence at another place. See Ochemaje vs. State (2008) 15 NWLR (PT.1109) 57 @ 89 (2008) ALL FWLR (PT.435) 1661 @ 1685; Tanko vs. State (2009) ALL FWLR (PT.456) 1977 @ 1999; Ani vs. State (2003) 11 NWLR (PT.830) 142; Dogo vs. State (2001) 3 NWLR (PT.699) 192; Gachi vs. State NMLR 333. In other words, the accused person was somewhere other than where the prosecution alleged he was at the time of the commission of the offence. Consequently, the accused person could not have committed or participated in the commission of the offence with which he has been charged.
In the instant case, the defence of alibi postulated by the Appellant was that he came from Onitsha to see his mother and on discovering that the mother was sick and hospitalized at Abakiliki, he left where he stayed from 3/1/2007 to 6/1/2007. But under cross examination, the Appellant admitted Seeing the women demonstrating and whose demonstration precipitated the riot that led to the death of the deceased persons.
PW2 identified the Appellant as being among the youths at the Market Square where the deceased persons were being tortured before they were moved to where they were butchered at the hilltop. The Appellant was seen with the two other accused persons at the scene. See page 161 lines 23 and page 162 lines 1 – 5 of the records of appeal, See also page 60 lines 6 – 7 of the records, PW3 also indentified the Appellant at the Market Square. See Pages 174 lines 14 to 20,
It is now settled that even though it is the duty of the prosecution to check on a statement of alibi by an accused person to disprove the alibi or attempt to do so, there is no flexible and or invariable way of doing this. If the prosecution adduces sufficient acceptable evidence to fix a person at the scene of crime at the material time, his alibi is hereby logically and physically demolished and that would be enough to render such plea ineffective as a defence. This is what the prosecution has done in the instant case and the Lower Courts’ rejection of the Appellants plea that he came from Onitsha to see his mother and who happens to be hospitalized at Abakiliki and denied knowledge of all that happened or partake in it on the accounts of the eye witnesses cannot be faulted. The evidence of the prosecution witnesses were so overwhelmingly specific and unequivocal on the issue of identifying the Appellant as one the persons that was present at the scene of the crime as those that caused the death of the deceased persons by their acts. In the circumstances; the rather vague nature of the plea raised in the Appellant’s statement to the police and equally vague evidence in Court is not sufficient or credible enough to sustain the alibi by the Appellant and the Court below was right to in rejecting it.
Once an accused person is fixed at the scene of crime, his defence of alibi must fail. See Akpan vs. The State (2002) 12 NWLR (PT.780) 189; Ozaku vs. That State (1990) 1 NWLR (PT.124) 92; Ani vs. State (2003) 11 NWLR (PT.830) 142 @ 172; Ntan vs. State (1968) NMLR 86; Idiok vs. State (2008) 13 NWLR (PT.1104); Ochemaje vs. State (2008) 15 NWLR (PT.1109) 57 @ 78; Ndukwe vs. State (2009) 2 – 3 SC (PT.11) 35 @ 72; Nwabueze vs. The State (1988) 7 SCNJ (PT.11) 248 @ 260; Archibong vs. The State (1989) 12 SC 203; Adekunle vs. The State (1989) 5 NWRL (PT.123) 505. The defence of alibi of the Appellant must fail in the circumstances.
Based on the above, I resolve this issue against the Appellant.
Having resolved all the issues for determination against the Appellant, the appeal fails as it lacks merit. It is hereby dismissed.
Consequently, the judgment of the Lower Court delivered on the 1st day of July, 2010 convicting and sentencing the Appellant to death is hereby affirmed.

MOJEED A. OWOADE, J.C.A.: I had the privilege of reading in reading in draft the judgment of my learned brother UWANI MUSA ABBA AJI, I agree with the reasoning and conclusion and I also affirm the conviction of the Appellant.

HARUNA M. TSAMANI, J.C.A.: I had the privilege of reading before now, the judgment just delivered by my learned brother Uwani Musa Abba Aji, JCA (Presiding).
My learned brother has admirably and adequately considered and resolved all the issues that arose in this appeal. After a very careful consideration of the facts on the record of this appeal, I have no doubt in my mind that the Appellant is guilty of the offence of murder charged. In that respect, I agree with the reasoning and conclusion of my learned brother that this appeal has no merit and should be dismissed. Accordingly, I too hold that this appeal lacks merit and is hereby dismissed. The conviction and sentence of death passed on the Appellant by the Lower Court is hereby affirmed.

Appearances

A O. Obianwu, SAN
F.C. Ohajuru, Esq.For Appellant

AND

Chief Umeh Kalu, Esq, Hon. Attorney General, Abia State,
U.T. Nwachukwu, Esq.and
Dave Kalu, Esq.For Respondent