VICTOR FABIYI V. THE STATE
(2013)LCN/5985(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of February, 2013
CA/PH/349/2010
RATIO
MURDER: WHAT THE PROSECUTION MUST PROVE BEYOND REASONABLE DOUBT WHEN PROVING THE OFFENCE OF MURDER
It is trite law that to justify a conviction for murder, the prosecution must prove beyond reasonable doubt.
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 its probable consequence.
See also Edwin Ogba v. State (1992) 2 NWLR (Pt.222) 164, at 198 Akinfe v. State (1988) 3 NWLR (Pt.85) 729; Onah v. State (1985) 3 NWLR (Pt.12) 236 etc.PER STEPHEN JONAH ADAH, J.C.A.
CRIMINAL LAW AND PROCEDURE: ALL INGREDIENTS OF AN OFFENCE MUST BE PRESENT BEFORE THE COURT WILL CONCLUDE THAT THE OFFENCE HAS BEEN COMMITTED
Before a trial Court comes to the conclusion that an offence had been committed by an accused person, the, Court must look for the ingredients of the offence and ascertain critically that acts of the accused come within the confines of the offence charged. Amadi v. The State (1993) 8 NWLR (Pt.314) 644, Alor v. State (1997) 4 NWLR (Pt.501) 511; (1998) 1011 LRCN 125.PER STEPHEN JONAH ADAH, J.C.A.
ABET: MEANING AND NATURE
The verb variant “abet” means to encourage, incite or set another on to commit a crime. An abettor is an instigator, or setter on; one who promotes or procures a crime to be committed. Abetment is easier to prove than conspiracy because it entails or involves more overt actions. See Kaza v. The State (2008) 7 NWLR (Pt.1085) 125. PER STEPHEN JONAH ADAH, J.C.A.
CRIMINAL LAW AND PROCEDURE: CONVICTION OF AN ACCUSED IS BASED ON WHETHER OR NOT ALL THE INGREDIENTS HAVE BEEN PROVEN BY THE PROSECUTION BEYOND REASONABLE DOUBT
Before a trial Court comes to the conclusion that an offence had been committed by an accused person, the Court must look for the ingredients of the offence and ascertain critically that the acts of the accused complained of come within the confines of the particulars of the offence charged. See the cases of Ochiba v. The State (2011) 17 NWLR (Pt.1277) 663; Akpa v. State (2007) 2 NWLR (Pt.1019) 500; Uwagboe v. State (2007) 6 NWLR (Pt.1031) 606; Amadi v. The State (1993) 8 NWLR (Pt.314) page 644; Fatoyinbo v. A.G. Western Nigeria (1966) WRNLR page 4, (1966) 1 SCNLR 101; Okeke v. The State (1995) 4 NWLR (1995) 4 NWLR (Pt.392) page 676; Akinyemi v. The State (199) 6 NWLR (Pt.607) page 449.PER STEPHEN JONAH ADAH, J.C.A.
EVIDENCE: VITAL EVIDENCE: WHAT IS A VITAL EVIDENCE
A vital evidence is such evidence that goes to the root of the ingredients or elements of an offence of which an accused person is charged.PER STEPHEN JONAH ADAH, J.C.A.
JUSTICES
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
Between
VICTOR FABIYI – Appellant(s)
AND
THE STATE – Respondent(s)
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Justice of Rivers State Nigeria in charge NO. PHC/1987CR/2007 contained in the judgment of Boma Diepiri, J dated 26th April 2010 in which the Appellant Victor Fabiyi as accused person was convicted and sentenced along with one CPL Wafal Animu to death.
The facts on record are that on 17th September 2006, the Appellant, a taxi driver during the cause of his business along Olu Obasanjo Road, Port Harcourt was flagged down by a group of four people comprising two men and two ladies. They requested that the Appellant should convey them to Tombia Street close to the Meridian Hotel Port Harcourt.
The Appellant charged them N300.00 but they insisted on N200.00. An argument ensued between them and the appellant resulting to hot vulgar exchanges. The Appellant alleged in the scenario that he was molested and robbed of his mobile phone and N1,500.00 (one thousand, five hundred naira). He left the scene and on his way he met a Police Patrol Team and he narrated his ordeal to the Police Patrol Team. The police Inspector whom led the Patrol Team instructed three of his men to accompany the Appellant and “bring those boys”.
The Appellant then carried the three policemen in his cab and went after them. By the time they came to the scene where the Appellant had issues with the Boys, they had gone further with another taxi cab. When the Appellant with the policemen eventually caught up with them one of the boys got out of the cab and started running away. One, of the policemen who was arraigned with the Appellant at the trial Court pursued the Boy and shot him dead. The appellant and the policemen were charged before the Rivers State High Court Port Harcourt on information dated and filed on 7th December 2007. The information was later amended to effect change of date with the leave of the Court on 20th January 2010.
The offence for which the Appellant was charged is murder contrary to Section 319(1) of the Criminal Code of Rivers State (Cap.37) Laws of Rivers State of Nigeria, 1999. The particulars of the offence read:
“VICTOR FABIYI and CPL WAFAL AMINU, on the 17th day of September, 2006, along Tombia Street, GRAII, Port Harcourt Judicial Division, Murdered One Nnamdi Ajikere.”
The Appellant pleaded not guilty to the charge and the trial commenced. The prosecution at the trial called a total of four witnesses while the Appellant testified for his defence.
At the end of the trial, the Appellant was convicted and sentenced to death for the murder of the deceased Nnamdi Ajikere. Being dissatisfied with his conviction and sentence, the appellant appealed to this Court.
The Appellant on 21st May 2010 and 8th June, 2010 filed two notices of appeal. The Appellant at the hearing of this appeal withdrew the Notice of Appeal filed on the 21st of May, 2010 and that notice was struck out by Order of the Court on 8th January 2013 leaving that filed on the 8th June 2010. The Respondent with the leave of this Court, filed their Respondent’s brief on 18th May 2011.
On the day of hearing of this appeal, 08-01-2013 the appellant through his Counsel Mr. Ayodeji Adedipe, Esq. adopted his, brief of argument and urged the Court to allow his appeal. The Respondent through his Counsel the Attorney General of Rivers State Mr. Boms also adopted his own brief and urged the Court to dismiss this appeal.
There are seven grounds of appeal filed in the notice of appeal. These seven grounds without the particulars are listed as follows:-
GROUND ONE:
The learned trial judge erred in law in convicting the Appellant of the offence of murder, when there was no legal evidence of his having caused the death of the deceased as required by law and thus occasioned a miscarriage of justice to the prejudice of the Appellant.
GROUND TWO:
The learned trial judge erred in law in convicting the Appellant for the offence of murder, and sentencing him to death, when the allegation of murder revered against him was not proved beyond reasonable doubt, as required by law, and thus occasioned a miscarriage of justice.
GROUND THREE:
The Learned Trial Judge erred in law and misdirected himself when he held that “an aggrieved person who falsely made a report of armed robbery to the police that propelled them into embarking on the irrational act of killing the person against whom the complaint is made will definitely find himself in legal cobweb. The 1st accused person in his evidence in Chief before this Court admitted that he made a complaint of cultism and armed robbery against the deceased and the three others i.e. the deceased brother and the other two girls. Was he honest in this report? Could he from the evidence on record, be said to be saying the truth when he stated that the deceased brought out a gun and told him that he the deceased was a cultist, and that they stole his NOKIA handset and the sum of N1,500.00? and thus came to a wrong conclusion that occasioned a miscarriage of justice to the prejudice of the Appellant.
GROUND FOUR:
The learned Trial Judge erred in law and misdirected himself in holding as follows “it is my finding in this case that the report or a case of cultism and armed robbery to the effect that the deceased while brandishing, a gun, together with his brother and the other two girls stole a Nokia handset and the sum of N1,500.00 belonging to the 1st accused, lodged at the police check point by the 1st accused is a false report, and thus occasioned a miscarriage of justice.
GROUND FIVE:
The Learned Trial Judge erred in law, and misdirected himself when he held that “it is also my finding that the said act coupled with the act of physically conveying them in his taxi to the scene where the deceased was murdered in cold blood assisted, helped, facilitated aided and enabled the 2nd accused person to murder the deceased – see NWACHUKWU V. THE STATE (2002) FWLR 312 (PT.123) p.333 paragraph D-F.
GROUND SIX:
The Learned Trial Judge erred in law, in holding that “the 1st accused person is deemed under section 7(b) and (c) of the criminal code law of Rivers State to have taken part in committing the offence of murder.
Consequently, I find the 1st accused person guilty of the offence of murder” and thus occasioned a miscarriage of justice.
GROUND SEVEN:
The judgment is unreasonable, unwarranted and cannot be supported, having regard to the evidence.
The Appellant in his Brief of argument formulated one issue for determination. This issue is couched by the Appellant as follows:-
Whether the Learned trial Judge was right in convicting the Appellant of the offence of murder, when the prosecution did not prove the charge of murder against the Appellant beyond reasonable doubt?
The Respondent in his own brief of argument also raised one issue for determination. This issue formulated by the Respondent reads:
Whether from the evidence as found by the Court below, the Learned trial judge was right in convicting the Appellant for aiding the unlawful killing of the deceased based on Section 7(b) and (c) of the Criminal Code Laws of Rivers State.
The issue that is in focus in the brief of the Appellant and that of the Respondent is whether the conviction of the Appellant for the offence of murder by the trial Court was right having regard to the evidence before the Court. This issue was well canvassed in the briefs of both the Appellant and the Respondent.
The Learned Counsel for the Appellant in his brief canvassed that in criminal trials the onus, at all times, is on the prosecution to prove the guilt of the accused person, beyond reasonable doubt. He relied on the cases of:
MBENU Vs. THE STATE (1988) 3 NWLR (Pt.84). 615 at (Paragraphs C-D)
(i) WOOLMINGTON V. DPP (1935) A.C. 65
(ii) MINISTER OF PENSIONS V. MILLER (1947) 3 ALL ER. 372, 374
(iii) OTEKI V. ATT. GEN. BENDEL STATE (1985) 6 NWLR (Pt. 24) 648.
The Learned Counsel submitted that for the prosecution to succeed in a charge of murder, it is now trite law that it must prove the following:
(a) That the accused killed the deceased.
(b) That the killing was unlawful
(c) That the accused unlawfully killed the deceased under one or the other of the six circumstances enumerated in section 316 of the criminal code.
The Counsel referred extensively to the evidence before the trial Court. He drew the attention of this Court to the findings and conclusion of the trial Court and submitted that there was no legal basis for the trial Court’s findings and views leading to the conviction of the Appellant. He pointed out firstly that neither the prosecution witnesses, nor Walfal Aminu (DW2) who actually shot the deceased gave any evidence of encouragement and or assistance from the Appellant, for the commission of the offence. He further pointed out that throughout the case, the prosecution did not establish that the Appellant, though a civilian and taxi driver, is a person that can exercise authority on the police, on how to carry out their investigation, upon receipt of criminal complaint. Neither was it established that the Appellant had the mens-rea and the actus reus which must be established in every criminal prosecution against an accused. It is also the Learned Appellant’s Counsel’s submission that, when a report is made to the police to the effect that a crime has been committed as in the instant case, the police have discretion whether or not to conduct investigation into the allegation of crime. He submitted that, no individual can interfere with that discretion. He referred to the case of FAWEHINMI V. I.G.P. (2002) 7 NWLR (PT.767) 606 at pages 670 – 671 paragraphs H-B, and the case of CHIEF (DR) FAJEMIROKUN V. COMMERCIAL BANK NIG. LTD & ANOR (2009) 2-3 S.C. (Pt.1) 26 at 33 – 34, paragraphs 35-5.
He canvassed also that the Appellant could not have influenced the police in the way and manner investigations should be carried out. He contended that the report the Appellant made to the police was not made mala fide and that the prosecution did not establish any bad faith in the report.
On the issue of the Appellant conveying the police to the scene of the incident, the Learned Counsel submitted that the Appellant in his evidence, stated that, it was the policemen who asked him to use his vehicle to carry them to where his attackers were. He referred to page 78 of the record. That throughout the case, the evidence of the Appellant to the effect that it was the policemen who asked him to convey them in his car was not debunked. He contended that, the Nigerian Police, in the performance of their duty under section 4 of the Police Act have the power to seek for assistance from any person, whether a complainant of an allegation of crime or not, to enable them perform their duty of crime prevention, investigation and arrest. The Appellant in this wise, he said, readily came handy, especially because of the nature of his complaint, the time and the trouble involved. He therefore contended that the Learned trial Judge cannot therefore be right to say that because the Appellant who reported an attack on him by a gang was the one who conveyed the police to the scene of the crime, he is deemed to have facilitated the commission of the offence that took place in the course of arrest of the suspects. He urged the Court to quash the conviction and sentence.
The Learned Counsel for the Appellant took a critical look at the provision of section 7(b) and (c) of the Criminal Code, Law of Rivers State and canvassed that for the Appellant to be guilty of the charge of murder carried out by a police officer, under section 7(b) and (c) of the Criminal Code Law of Rivers State, the prosecution must prove that, the Appellant has a common intention with police who killed the deceased. That common intention was never established by the prosecution in this case. He cited the case of AKINKUMI V. STATE (1987) NWLR (Pt. 52) 608, where the Supreme Court of Nigeria held that for a common intention to be established the following ingredients must be present:
(1) There must be two or more persons.
(2) They must form a common intention.
(3) The common intention must be toward prosecuting an unlawful purpose in conjunction with 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 learned counsel for the Appellant canvassed further that though none of the above ingredients was proved against the Appellant, the learned trial Judge nonetheless convicted the Appellant under section 7(a) and (b) of the criminal code Law of Rivers state. The Counsel further examined the provision of section 7(b) and (c) of the Criminal Code Law of Rivers State (ibid), and he submitted that for an accused person to be guilty of aiding or abetment, which is the summary of the provisions of section 7(b) and (c) of Criminal Code Law of Rivers State, under which the Appellant was convicted, the prosecution must establish the following:
(i) That there was an encouragement, incitement, setting on, instigation, promotion or procurement of offence.
(ii) Any of the above acts must be positive and unequivocal specifically addressed to the commission of the offence.
(iii) The act abetted must be committed in consequence of the abetment.
He referred to the case of KAZA V. STATE (2008) 7 NWLR (Pt.1085) 125 at 176 – 177 Paragraphs H – B.
The counsel also cited the case of Yakubu Mohammed & Anor. V. The State (1980) A.N.L.R. 138 and submitted in the instant case that throughout the trial of the Appellant, the prosecution did not adduce any evidence showing how the Appellant aided or abetted the policeman, who shot the deceased, neither did the prosecution establish the omission of the Appellant that encouraged the killing of the deceased. He submitted that, the act of the policeman who shot the deceased was an independent act. This he said becomes clear, when it is observed that, on the fateful day, three policemen were present. That from the evidence, at least two of them including the man who shot dead the deceased, were armed. That there was no evidence at the trial to the effect that the Appellant instructed or advised the policeman to chase the deceased and or shoot him. That there was no evidence that the Appellant handed over the gun with which the deceased was shot to his killer. That it is therefore difficult to see how the learned trial Judge came to the conclusion that it was the Appellant who assisted, helped, facilitated, and aided the policeman to murder the deceased. He relied on Archbold, Criminal pleading, Evidence and Practice (2000) at page 1610 – 1611, where the learned author examined the offence of aiding and abetment, and identified the following ingredients which must be present. They are:
(i) Mens rea
(ii) Capacity
(iii) Presence
(iv) Participation
(v) Joint enterprise/Common design
(vi) Encouragement.
On the issue of false report, Counsel submitted that, it is on record that the distance between the points where the group assaulted the Appellant and the point where they were allegedly searched is up to 10 houses, He cited the evidence of PW4 at page 75 of the record. He also submitted that, between the point where the Appellant was attacked and the point where his assailants were searched, anything could have happened to the stolen items, more so, as the driver who carried the group from the point where the Appellant was attacked was not interrogated or called to give evidence as to what might have happened between the point where he carried them and where they were caught. That there was no official report from the police showing that the police investigated the report made to them by the Appellant and that the said report was false.
In conclusion the Learned Counsel urged the Court to allow this appeal.
The Learned Attorney General, Rivers State Mr. Boms, in his reply Brief, canvassed that the trial Court made findings to which he listed as follows:-
That the deceased, Nnamdi Ajikere, was not only killed? But, was shot dead and by the 2nd accused person, the police officer. (See page 114 2nd line; lines 16 – 20 of the Records).
That, to justify the unlawful killing, strenuous efforts was made by the accused persons to portray the deceased Nnamdi Ajikere as an armed robber who must be stopped at all cost.
That this attempt to portray the deceased as an armed robber who must be stopped, started from the point the 1st Accused – now Appellant – lodged a report of cultism and armed robbery at the police check point’ (See page 118, 2nd paragraph, beginning from lines 7 – 10 of the Record). ‘
That the evidence of DW2 under cross examination is more consistent with the evidence of PW1 and PW2 and PW4 to the effect that “as soon as they were blocked by the police, they obeyed and that the police at that point searched all of them including their vehicle but found nothing incriminating”, (Page 119 line 3 – 8).
The Court further reasoned thus: if the deceased was holding or shooting a gun as DW2 tried to portray, how come that as soon as he was shot dead by DW2, the said gun developed wings and flew away and could not be found on him’. (See page 119, lines 8 – 11.)
The Learned Attorney General in his brief further pointed out that the evidence provided by the Appellant and his then co-accused has corroborated, substantially, what the prosecution witnesses themselves said in their respective testimonies, (See pages 60-62, 65-71, 74-76, 78-81, 83-86 and 122-125 of the Records.) That If, then, the Appellant himself, said the things that the Court found as a fact and believed, supported by the other witnesses, there is therefore, no ground to contend, as Counsel is contending, that there is no legal basis to make those findings.
That earlier at page 123 lines 20 – 21, the Court had found that the deceased and his sister and friends did not know they were being chased after they left the Appellant following the altercation.
This finding is important he said, to justify the finding of the trial Court that “the deceased therefore had no need to hide or throw away whatever weapon he had”. Moreover, that the Court held that the distance was short and the deceased had not even reached his destination.
That when the police swoop on them, they were all, including the new taxi driver, made to lie down and were thoroughly searched.
That after the deceased was shot, no gun was found on him and nothing incriminating found on his co-travelers who were not shot.
That to lie to the police that a person, with whom he had a mere altercation, is an armed robber is a serious allegation. To even add that the person at gun point robbed him of his valuable is worse.
That to provide his own vehicle and personally drove it in hot pursuit with the policemen fully armed, provides conclusive proof that the Appellant who set in motion the chain of events that led to the shooting of the deceased on grounds of armed robbery and cultism helped, facilitated and aided and enabled the policeman to murder the deceased.
That the contention of the Appellant, therefore, on page 10 paragraph 4:02 of his brief that there was no evidence of encouragement and or assistance by the Appellant for the commission of the offence is both hollow, without substance and in conflict with the content of the Records.
He urged the Court to disregard that submission which, if accepted will obviously lead to a failure of justice.
He contrasted the case of Ade Funmilayo v. Oduntan (1958) WRNLR 31 with that of Olie v. Skeats (1945) 18 NLR 7. He contended also that the cases of Fawehinmi v. I.G.P (supra) and Chief (Dr.) Fajemirokun v. Commercial Bank Nig. Ltd & Anor. (supra) relied upon by the Appellant are not applicable to the instant case. That from the two decisions it is clear that a citizen’s immunity from the consequences of a report to the police will be tampered with if his report is shown to have been made mala fide. That once, it is shown to be mala fide, all the contention that he cannot be responsible for the consequences of his report collapses.
That from the Records, Appellant acted mala fide or had no honest belief in his complaint to the police that he was robbed by armed robbers and cultists, just because the passengers refused to hire his car. That the Court specifically found that his report was false. He pointed out that in Chief Ehiman Payin & Anor vs. Adigba Alinah (1952) 14 WACA the Appellant accused the Respondents of stealing coconuts from plantation they all knew belonged to the Respondents. They were all held liable in the tort of malicious prosecution because they had no honest belief in their complaint against the Respondents.
On the issue of false information, the Learned Counsel relied heavily on the evidence of the PW2 the investigating police officer and canvassed that there was investigation conducted which led to the finding that the report of the Appellant to the police was false. He urged the Court to disallow and dismiss this appeal.
My Lords, the offence for which the Appellant was convicted by the trial Court is that of murder under Section 319(1) of the Criminal Code Law Cap. 37 Laws of Rivers State of Nigeria 1999. This offence was defined under Section 316 of the said Law as follows:-
“Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say-
(1) if the offender intends to cause the death of the person killed, or that of some other person;
(2) if the offender intends to do to the person killed or to some other person some grievous harm;
(3) if death caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;
(4) if the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence.
(5) if death is caused by administering any stupefying or overpowering things for either of the purposes last aforesaid
(6) if death is caused by willfully stopping the breath of any person for either of such purposes is guilty of murder.
In the second case it is immaterial that the offender did not intend to hurt the particular person who is killed.
In the third case it is immaterial that the offender did not intend to hurt any person.
In the three last case it is immaterial that the offender did not intend to cause death or did not know that death was likely to result.
It is now well settled law that where the charge preferred against the accused is murder, the onus is on the prosecution to prove beyond reasonable doubt the essential ingredients of the offence which are that the deceased is dead; the act or omission of the accused which caused the death of the deceased was unlawful; and that the act or omission of the accused which caused the death of the deceased must have been intentional with knowledge that death or grievous bodily harm was its probable consequence. See the cases of Abogede v. The State (1996) 4 SCNJ 223; Ogba v. The State (1992) 2 NWLR (Pt.222) 164, Idiok v. The State (2008) 13 NWLR (Pt.1104) 225.
What is therefore relevant in our criminal law is that the act of the accused person resulting in the death of the deceased must be unlawful. The mens rea or malice aforethought although common law concepts are now engrafted into our statutory prescriptions in finding out the criminal responsibility of the accused. One in addition can also say that motive may be relevant especially where it is proven to strengthen the case for the prosecution. See Nwali v. The State (1991) 3 NWLR (Pt.182) 663 per Olatawura, JSC. (Pt.353) 703.
In the case of Princewill v. State (1994) 6 NWLR IGUH, JSC held that:
…..it is trite law that to secure a conviction for murder, the prosecution must prove beyond reasonable doubt that the death of deceased was caused directly or indirectly by the act of the accused. It is incumbent on the prosecution to establish not only that the act of the accused could have caused the death of the deceased but that in actual fact the deceased died as a result of the act of the accused to the exclusion of all other possibilities. See State v. Christopher Omoni (1969) 2 All NLR 317; Valentine Adie v. State (1980) 1 – 2 SC, 116 at 122- 123; R V. Johnson Nwokocha (1949) 12 WACA 453 at 455 and R V. Izobo Owe (1961) 1 All NLR 680”.
It is therefore certain My Lords, that the necessary angle to focus in this case is what act of the Appellant caused the death of the deceased in this case. The finding of the learned trial Judge concerning the Appellant and which led to the conviction of the Appellant is at pages 128 to 129 of the Record of Appeal. There the learned trial Judge found as follows:
“It is my finding in this case that the report of a case of cultism and armed robbery to the effect that the deceased while brandishing, a gun, together with his brother and the other two girls stole a Nokia handset and the sum of N1,500.00 belonging to the 1st accused, lodged at the police check point by the 1st accused is a false report. It is also my finding that the said act coupled with the act of physically conveying them in his taxi to the scene where the deceased was murdered in cold blood assisted, helped, facilitated aided and enabled the 2nd accused person to murder the deceased – see NWACHUKWU V. THE STATE (2002) FWLR 312 (Pt. 123) P. 333 paragraphs D – F.
I hold therefore that the 1st accused person is deemed under Section 7(b) and (c) of the Criminal Code Law of Rivers State to have taken part in committing the offence of murder. Consequently, I hereby find the 1st accused person guilty of the offence of murder.”
From this finding, two things were identified as fueling the contribution of the Appellant to the murder of the deceased. First is the report of the Appellant to the Police at the check point which the learned trial Judge said was false. The second is the act of “physically conveying” them (the policemen) in his taxi cab to the scene where the deceased was murdered in cold blood.
I shall look at the issue of the alleged “false report” first. In this case, the prosecution as earlier pointed out in this Judgment called four witnesses, these witnesses are the 1st P.W. Igochukwu Ajikere the junior brother of the deceased. The 2nd P.W. Lebari Damian the Policeman who said he investigated the case. The 3rd P.W. is Dr. Charles Ngozi Amakiri consultant Pathologist who did the post mortem examination of the deceased and the 4th P.W. is Pamela Ikiaigbe, one of the ladies in company of the deceased on the day of the incident.
Recounting the incident at pages 60 – 62 of the Record the 1st P.W. testified in chief as follows:
I remember the 17th day of September, 2006. On this date at about 9pm in the evening, we had two female visitors i.e. I and my brother late Nnamdi, Pamela and Jane who visited us and requested for a meal because Jane was hungry. We i.e. my late brother, myself, Pamela and Jane went out for food. We were going to a restaurant close to sky Bank Olu Obasanio way. Upon approaching there Jane fell into the gutter and sustained injury and requested that we take her home for her to clean up herself. We went to the closest junction there being Sky Bank at Olu Obasanjo Road to take a taxi. We flagged down a taxi driver. The 1st accused person was the driver of the taxi. We told him that we were going to Tombia Street, close to La Meridian Hotel. He told us that he was going to charge N400.00 and Pamela insisted that N400.00 was too much and that he should take N200.00. The 1st accused person asked her if she was mad. He came out of the car and wanted to slap Pamela. My brother and I had a quarrel with the 1st accused over Pamela. 1st accused drove off and told us that we were going to see. As he left we flagged down another taxi that carried us for N200.00. When he was cross-examined he further testified:
“It is true that where the incident happened was a curve. I hear three gun shots in all. One was shot against my brother. I heard the other two when I was running to inform my father. I was lying down by the time that first gun was shot but not facing down. The curve was something you can see.”
The PW4 Pamela Ekiagbe under cross-examination said at page 75 of Record that:
“It is not the place where we bargained for the fare with the 1st accused person that the deceased was shot dead. The distance from the point of negotiation of fare to where the deceased was shot is not that far, it should be about 10 buildings away. We were abusing ourselves when the 1st accused person left and promised to deal with us.”
The Appellant in his own evidence before the Court at page 77 of the Record testified that:
On the 17th day of September, 2006 at about 9 pm, I was driving through Olu Obasanjo Road when I met two boys and two girls. They flagged me down and I pulled off by their side and stopped. They asked me to take them to Tombia Street and I told them that I was going to charge N300.00. One of the ladies with them then retorted “God punish you” I then asked her why she said so she repeated it a second time. I asked her to please keep quiet let me talk to my fellow man. As I bent down to ask the young man how much he want to pay, he gave me a slap which caught me unaware. The car jerked and stopped. Before I could recover from that one he landed another on my face. When I asked him why he slapped me, he then asked if I did not know that the lady I asked to keep quiet was somebody’s wife. He became furious and the second boy opened the door by my side. I came down to tell them that I was sorry but he wouldn’t listen. He was just kicking me. It was at that point he asked me if I did not know that they were cult members. He brought out a short gun and asked if I want them to blow my skull. He said I should hand over my car key to him. I then became jittery and afraid and began to beg. He then opened the car again, entered the car and took my Nokia handset i.e. Nokia 1100 with a touch light and my N1,500.00. He then came out and dropped my car key on the ground. They pushed me into the car and banged the door. I then started my car out of fear. I drove off and then saw some policemen at the check point. I then reported to them a case of cultism and armed robbery. The police inspector that led the squad told his boys to go and bring those boys. Before the police could get there they have taken another taxi. When the police stopped them, they refused to stop; they now beckoned on me to bring my own vehicle. I now used my vehicle and carried the police and chased them and caught up with them in front of Le Meridan Hotel. The policemen asked me to block them and I did so. Immediately the one that was beating me saw me, he jumped out of the vehicle i.e. the deceased and started running away. It was then the mobile policeman ran after him and at a point I heard two gun shots. I did not know the 2nd accused person before that day. I also did not know any member of the team of policemen I reported to before that day. I did not know deceased before that day. I did not know any of the two boys and two girls before that day.
Under cross-examination the Appellant said at pages 80 – 81 of the Record as follows:-
“There was no searching on them because the deceased has been shot and killed…I wouldn’t know if anything was found on them. It is not correct to say that I pursued the boys almost immediately after I made the report. It took me about 10 minutes to move from the junction to Le Meridian Hotel with the policemen. I did not tell the police lies that the boy had a gun on him. That was what happened”
It was the consensus of all the witnesses for the prosecution that the Appellant and the group of four never knew themselves before that night of the incident. Appellant maintained his story that one of the boys had gun and threatened him with the gun and that he said they were cultists. Apart from the 2nd Accused charged before the trial Court, who testified for his defence in this case none of the policemen at the check point who took the report made by the Appellant testified in this case nor were they called as witnesses by the prosecution. Although it is the absolute prerogative of the prosecution to call whatever witness is required for the proof of its case, failure to call vital witnesses may weaken the strength of its case. The 2nd Accused who testified said at page 83 of the record as follows:-
“On 17th day of September, 2006, we were at a check point along Olu-Obasanjo Road in Port Harcourt near Access Bank. We were about 9 in number led by a superior officer, whose name I do not know. While we were there the 1st accused person came and met us and was weeping. When we asked what was wrong with him he told us that he was attacked by armed robbers. The said robbers he said beat him up seriously and collected his handset and the sum of N1,500.00 at gunpoint. My superior officer then gave us order to go to the scene of crime. Before we got there we saw the place where the actual incident occurred and there was nobody there. We then entered our vehicle and moved straight to Tombia Street,. When we got to Tombia Street we saw the armed robbers inside a vehicle. When they saw us one Mr. Nnamdi Ajikere and his brother jumped out of the vehicle. We then heard one gunshot and they began to run.
Nnamdi Ajikere began to bend down as he was running. I then used my gun and released one gun shot. I released Gun shot pointing towards Nnamdi Ajikere”
The group of four had moved beyond the place where they had argument with the Appellant. PW1 had said he heard three gunshots. The Appellant said he heard two gun shots. The Pathologist who gave expert evidence said the deceased had one gunshot wound. Which other gun was sounding at the scene that day? The prosecution in the face of this ought to have made specific investigation to solve the issue before conclusions were drawn. But nothing was done.
If the prosecution had called any of the five policemen who took the complaint from the Appellant on the day of the incident, or any of those who came to the scene with the Appellant, it would have been clearer a picture. The Appellant all through the Record did not waiver on his story that he was threatened with a gun and the fact that they were cultists. The Appellant was cross-examined but he did not derail from his story that one of the four had a gun. For the prosecution to say his story was false they need to investigate or produce evidence to debunk the story. The 2nd P.W. who said he investigated this case did not give any account of what he did about the report of this Appellant. He did not inform the Court he interrogated the Appellant or make findings as to the veracity of his story. Considering the fact that the group of four had moved further away from the point of encounter with the Appellant and the fact that the deceased took to his heels on sighting the police at that hour of the night and the hearing of gunshots more than the one that killed the deceased, together with the failure of the police to investigate the story of the Appellant and the fact that the Appellant never knew the deceased or any of those in his company before that day of the incident what was the basis of saying the report of the Appellant to the police was false. The Learned trial Judge at pages 125 – 127 in his Judgment said:
“Let me state here without mincing words that I believe the evidence of PW1 and PW4. I believe it because it is more consistent with the fact that none of the items allegedly stolen by them was found on them including even the gun allegedly brandished by the deceased. This is despite the fact that they were not only searched but the taxi conveying them together with its driver were also searched and this search took place before they had the opportunity to head to any other place. I believe the evidence because it is more credible than that of DW1 and DW2. The evidence of DW1 that he was robbed with a gun by the deceased, his brother and the two girls and his Nokia handset and the sum of N1,500.00 stolen by them is highly improbable, particularly when viewed against the backdrop of the fact that nothing incriminating was found on them despite being accosted and apprehended shortly after the said incident while they were still in a taxi before getting to their destination within the same vicinity. The said evidence of DW1 is inconsistent with human knowledge and experience…………
From the evidence on record, it is quite obvious that the story of armed robbery and cultism that culminated into the stealing of a Nokia handset and the sum of N1,500.00 from the 1st accused while wielding a gun was a deliberate falsehood cooked up by the 1st accused in his bid to make good his threat to deal with a the deceased and the other three. The 1st accused person allowed his crave for vengeance to overshadow his sense of reasoning. I believe the evidence of the prosecution witnesses to the effect that there was a disagreement as to the fare charged by the 1st accused person which culminated into a free flow of exchange of vulgar abuses by the parties. I believe that the said story of the deceased brandishing a gun was cooked up by the 1st accused and orchestrated by the 2nd accused person when they discovered the enormity of the callous, cowardly, uncalculated, and unlawful act of snuffing life out of the deceased through reckless use of gun.”
I must say here, My Lords, that it is highly unfortunate that what began as a mere bargain for taxi fare ultimately ended up with the death of the deceased Nnamdi Ajikere a young man said to be in his final year in the University but when it comes to the issue of culpability in a crime of this magnitude, it is not an issue of mere inferences. The inference that can make the Appellant culpable is that which is devoid of alternatives. It must be such that accords with the standard of proof required in Criminal trial which is that of proof beyond reasonable doubt. I do not see any concrete inference from the findings of the trial Court that warranted the conviction of this Appellant for the offence of murder of the deceased based on the mere report he made to the police.
In the case of Ona v. Okenwa (2010) 7 NWLR (Pt.1194) 512, this Court held that:
By virtue of section 4 of the Police Act, investigation and detection of crime are primary duties assigned to the police. Once criminal allegations are made against a citizen, it is a constitutional and statutory duty of the Police to investigate the allegations.
It is the right of a party as a citizen to lay complaint to the police after he was assaulted. Thereafter, it is a matter for the police to decide what action they should take on the report of complaint.
Gbajor v. Ogunburegui (1961) 1 All NLR 853; FCMB v. Ette (2008) 22 WRN 1 referred to (P.536 paragraph A – C per NWODO, J.C.A, at page 536, paragraphs E – H:
“Every person in Nigeria who feels an offence has been committed has a right to report to the Nigerian Police force. Once that right of complaint to the Police who are custodians of order in the society is exercised, the rights shifts to the Police to exercise their statutory powers under Section 4 of the police Act. The power conferred on the police under the Police Act includes investigation, arrest, interrogation, search and detention of any suspect. In the process of investigation, the Police is enjoined to look at the facts contained in the complaint carefully before proceeding to arrest or detain the persons complained against.”
This definitely captures the position of the Law of this country on the duty and degree of responsibility placed on the police and complaints received by them.
Generally, it is the duty of citizens of this country to report cases of commission of crime to the Police for their investigation and what happens after such report is entirely the responsibility of the Police. The citizens cannot be held culpable for carrying out their civic duty unless it is shown that it is done mala fide. See the cases of Fajemirokuh v. Commercial Bank (Nig.) Ltd & Anor. (2009) 5 NWLR (Pt.1135) 588; M.I. Nig. Ltd. v. Awongo Odibo Harry (2009) LPELR – 4445 (CA); Ishenko v. Julius Berger (Nig.) Plc (2008) 6 NWLR (Pt.1084).
It is well settled, that mere report of a crime to the police which lead the police on their own initiative to arrest or investigate a suspect cannot place any criminal responsibility on the party. In the case of Fajemirokun v. Commercial bank (Nig.) Ltd supra, the Supreme Court held that citizens of Nigeria have the choice to exercise their legal rights of placing their grievance before the police, being custodians of law and order, and that is where their own input stops. Whatever action the police takes thereafter is not solely their responsibility and they are not solely liable. It must be shown that those lodging repofts with the police are fueled by malice or that their reports are propelled and tainted by mala fides, before they can be held liable for any infraction of right suffered in the process.
Mala fides and malice are not difficult to define. The Black’s Law Dictionary 9th Edition defines malice in this form: “Malice means in law wrongful intention. It includes any intent which the law deems wrongful, and which therefore serves as a ground of liability. Any act done with such an intent is, in the language of the law, malicious, and this legal usage has etymology in its favour. The Latin militia means badness, physical or moral – wickedness in disposition or in conduct – not specifically or exclusively ill-will or malevolence; hence the malice of English law, including all forms of evil purpose, design, intent, or motive. (But) intent is of two kinds, being either immediate or ulterior, the ulterior intent being commonly distinguished as the motive. The term malice is applied in law to both these forms of intent, and the result is a somewhat puzzling ambiguity which requires careful notice. When we say that an act is done maliciously, we mean of two distinct things. We mean either that it is done intentionally, or that it is done with some wrongful motive.
“John Salmond, Jurisprudence 384 (Glanville L. Williams ed., 10th ed. 1947). “(Malice in the legal sense imports (1) the absence of all elements of justification, excuse or recognized mitigation, and (2) the presence of either (a) an actual intent to cause the particular harm which is produced or harm of the same general nature, or (b) the wanton and willful doing of an act with awareness of a plain and strong likelihood that such harm may result…” Rollin M. Perkins & Ronald N. Boyce, Criminal Law 860 (3rd ed. 1982). Malafides simply means bad faith.
It follows therefore that before a person like the Appellant who makes a report to the police, no matter the nature of the report, can be said to be liable for infraction of right arising out of the string of his report, it must be proved beyond reasonable doubt that his report was actuated by malice and that he had an actual intent to cause that particular harm which is produced or the doing of an act which is intended to cause such harm. There must be clear evidence that his report to the Police had no element of justification. In Nigeria, the maintenance of Law and Order is part of the statutory responsibilities of the police. It is the civic duty of all the citizens to enhance the flourishing of Law and Order. This therefore demands that no one takes law into his hands and engage in self help that could lead to a breach of law and order such as will enthrone or justify jungle justice. The path of civility is the path that gives the citizen the lee way to take his complaints of any assault to his rights to the police whose duty it is to investigate such complaints diligently and be convinced that there is the need to move into action before they set out in furtherance of the complaint. In the instant case the Appellant came to the police at the check point crying. See the evidence of the DW2 who was a co-accused and the policeman who eventually shot to death the deceased. The Appellant reported that he was molested and robbed of his GSM phone and cash of N1,500.00 with gun by a gang of boys who said that were cultists. The police on taking that report set to arrest the boys and then it ended up in a disaster leading to the death of the deceased from the gun of the 2nd accused before the trial Court.
The evidence put forward by the prosecution as set out in the record of proceedings of the trial Court did not establish the fact that the report lodged by the Appellant was malicious or false. It is therefore difficult to see how the trial Court arrived at his conclusion in this case that a report made by the Appellant to the police aided the murder of the deceased.
There is no evidence that the report of the Appellant to the police was investigated by the police and found to be false so the finding of the learned trial Court in that regard is with all respect perverse.
The other issue or act of the Appellant that the learned trial Judge relied upon for the conviction was the fact that the Appellant used his taxi cab to convey the police who wanted to go and arrest the deceased and others. In Nigeria, it is the civic responsibility of every citizen to offer assistance to all law enforcement agents who want to carry out their statutory duties. The Appellant testified that he was directed by the police to allow them use his taxi cab for the arrest of the Boys. This is the much that was brought out in this case. The Learned trial judge imputed in his judgment that this fact would justify the conviction of the Appellant having regard to section 7c of the Criminal Code Law of Rivers State. He relied on the decision of the Supreme Court in Nwachukwu v. The State (supra). This decision with all respect was wrongly applied by the learned trial Judge. Iguh JSC in Nwachukwu’s case had this to say:
Attention must be drawn at this stage to Section 7(c) of the Criminal Code which provides that where an offence is committed every person who “aids” another person in committing the offence is deemed to have taken part in the commission of the offence and to be guilty of the offence and may be charged with actually committing it. Although on the evidence, Anthony Nwachukwu now at large, was said to be the Kingpin and architect of the murder of the deceased the late Christopher Ndulaka and the Appellant were directly implicated with the actual manual strangulation of the deceased to death. In confessing to this murder, the Appellants in his words, together with the late Christophe “aided” the said Anthony Nwachukwu in the brutal and senseless stagnation of the deceased to death. To bring a person within section 7(c) of the Criminal Code, there must be clear evidence that either prior to or at the time of the commission of the Criminal and, that person did something to assist and help or facilitates the commission of the offence “(See pages 570 – 571 of the Report). (Underlining mine).
The convict in that Nwachukwu’s case was directly implicated in the actual manual strangulation of the deceased to death. The Appellant in the instant case is not directly implicated.
I need to add here that section 7 of the Criminal Code, Cap 30, Vol II Laws of Eastern Nigeria, 1963 under consideration in that case of Nwachukwu v. State (supra) is on all fours with section 7 of the Criminal Code Cap 37 Laws of the Rivers State of Nigeria.
Section 7 of the Criminal Code is not a sweeping legislation that mirrors every step precluding an offence. It is the law that is meant for parties or participes criminis to a crime. It includes inter alia, every person who actually does the act or makes the omission which constitutes the offence, person who aids, abets or assists them in the commission of the offence or knowingly give succor or encouragement to the commission of the crime or who knowingly facilitate the commission of the offence.
The offence is the doing or omitting to do something for the purpose of making it easier or possible to commit the substantive offence by another person. The section envisages the complicity of a person not actually committing the substantive offence himself, but his action, by commission or omission facilitated its commission. The prosecution has to lead clear evidence that either prior to or at the time of the commission of the substantive offence, the person charged did something tangible to facilitate its commission. See the cases of R v. Enweonye & Ors. 15 W.A.C.A. 1, State v. Ededey (1972) 1 SC 140; Iyaro v. State (1988) 1 NWLR (Pt.69) 256; Agwuna v. The A.G. Federation (1995) 5 NWLR (Pt.396) 418. It should be borne in mind all through this that the standard of proof required is that of proof beyond reasonable doubt section 135 of the Evidence Act 2011 Cap E.14.
The evidence before the trial Court in the instant appeal as earlier pointed out is to the effect that the Appellant and the 2nd Accused never knew each other before the night of the incident. Upon the report of the Appellant to the Police at the check point, the police Inspector in charge detailed the 2nd Accused and two other policemen to go with the Appellant and “bring the Boys”.
The Appellant was not proved to be in league with the 2nd Accused who fired the shot that killed the deceased. It was not in evidence that when the 2nd Accused was pursuing the deceased with his gun that the Appellant followed or offered any help. The kind of aid that would have yoked the Appellant is if the Appellant on catching up with the deceased and the group took steps or render any assistance in the brutal and senseless killing of the deceased. This has not been established to be the case in the instant case.
The question that is requisite and almost compulsory in any Criminal trial is whether the evidence led on behalf of the prosecution in the case sufficiently established the guilt of the Appellant beyond reasonable doubt. In Nwachukwu v. State (supra) relied upon by the learned trial Judge, the Supreme Court held:
It is trite law that to justify a conviction for murder, the prosecution must prove beyond reasonable doubt.
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 its probable consequence.
See also Edwin Ogba v. State (1992) 2 NWLR (Pt.222) 164, at 198 Akinfe v. State (1988) 3 NWLR (Pt.85) 729; Onah v. State (1985) 3 NWLR (Pt.12) 236 etc.
In the instant case, it has been established that the deceased Nnamdi Ajikere has died but it has not been established beyond reasonable doubt that the death of the deceased resulted from the act of this Appellant.
In the case of the State v. Salawu (2012) Vol.16 WRN1, the Supreme Court per Adekeye, JSC held that:
Before a trial Court comes to the conclusion that an offence had been committed by an accused person, the, Court must look for the ingredients of the offence and ascertain critically that acts of the accused come within the confines of the offence charged. Amadi v. The State (1993) 8 NWLR (Pt.314) 644, Alor v. State (1997) 4 NWLR (Pt.501) 511; (1998) 1011 LRCN 125.
In the instant case the murder of the deceased was not said to be carried out directly by the Appellant. Section 7 of the Criminal Code of Rivers State deployed to indicate that the Appellant offered assistance to policeman who pulled the trigger that killed the deceased talks of aiding and abetting. Abetment has been defined to mean: an act of encouraging, inciting or aiding another. The verb variant “abet” means to encourage, incite or set another on to commit a crime. An abettor is an instigator, or setter on; one who promotes or procures a crime to be committed. Abetment is easier to prove than conspiracy because it entails or involves more overt actions. See Kaza v. The State (2008) 7 NWLR (Pt.1085) 125.
An encouragement here means an act of making someone to feel brave or confident enough to do something by giving active approval in support of the crime. Incitement also has the element of encouragement. By incitement, the person is provoked by a strong passion or feeling to commit an offence. An instigation, the act of instigating, means something happening by the action or conduct of a person, who is the starter. By the act of instigation, the co-accused is propelled or gingered to commit an offence.
It is the rule and indeed a golden rule of our adjudicatory jurisprudence that no trial Court has a right to draw conclusions of fact outside the available evidence. Such a conclusion will be regarded as perverse. It is always within the province of a trial Court to believe or disbelieve the witnesses it had the privilege of seeing and hearing, and whose demeanour it watched. But the gist of it all is that such belief or disbelief must be in consonance, with the general drift of the evidence and the probabilities which on the totality of that evidence, it is natural to expect. See Oputa JSC in State v. Collins Ojo Aibangbee (supra) at page 609.
My Lords, the offence for which the Appellant has been convicted and sentenced by the trial Court is a very serious one. To say otherwise is an understatement. It is a capital offence and it is an offence that involves lives. Lives involved here are primarily those of the deceased victim and consequentially the Appellant before this Court. Necessity is therefore laid upon the Court to ensure that the issues involved are carefully assessed as required so that justice is duly served in the matter. And justice must be for the dead and the living. Any mishandling of a case of this nature has the capacity to put the community at perils.
In every case, where it is alleged that death has resulted from the act of a person, a link between the death and the act must be established and proved beyond reasonable doubt. In the course of events, the cause of death must just be proved. Where the cause of death is ascertained, the nexus between the cause of death and the act or omission of the accused alleged to have caused it must be established. These are factual questions to be answered by the consideration of the evidence. In our adversarial system of criminal justice, the prosecution must prove its case beyond reasonable doubt with vital and relevant evidence it can produce.
In the process, it must also produce vital witnesses to testify for the prosecution. Before a trial Court comes to the conclusion that an offence had been committed by an accused person, the Court must look for the ingredients of the offence and ascertain critically that the acts of the accused complained of come within the confines of the particulars of the offence charged. See the cases of Ochiba v. The State (2011) 17 NWLR (Pt.1277) 663; Akpa v. State (2007) 2 NWLR (Pt.1019) 500; Uwagboe v. State (2007) 6 NWLR (Pt.1031) 606; Amadi v. The State (1993) 8 NWLR (Pt.314) page 644; Fatoyinbo v. A.G. Western Nigeria (1966) WRNLR page 4, (1966) 1 SCNLR 101; Okeke v. The State (1995) 4 NWLR (1995) 4 NWLR (Pt.392) page 676; Akinyemi v. The State (199) 6 NWLR (Pt.607) page 449.
A vital evidence is such evidence that goes to the root of the ingredients or elements of an offence of which an accused person is charged.
In the instant case, the cause of death is certain. It is incontestable from the evidence of the Pathologist (PW3) and all the witnesses including the Appellant DW1 that the deceased died of bullet wound and that the bullet was fired from the gun of the 2nd Accused before the trial Court. The nexus between the Appellant and the death of the deceased is from the finding of the trial Court perching on the fact that the Appellant here laid a report to the Policemen at the check point and later conveyed the policemen to meet the deceased and his friends at the place where the deceased was shot at by the policeman who was the 2nd accused in the charge. The allegation was that the report of the Appellant that he was robbed by the deceased was false. It was never suggested that the Appellant had anything physical to do with the shooting of the deceased. There is no evidence to suggest that the mission of the Appellant and the policemen on that day was to kill the deceased. In fact, the uncontroverted evidence of the defence is that the Inspector in charge of the policemen at the check point ordered the policemen sent with the Appellant to go and “bring the Boys.” It was not to go and kill the Boys. The act of 2nd Accused who shot and killed the deceased was therefore a negation of the purpose for which they came to the scene.
It is settled from the foregoing that there is no evidence to sustain the conviction of this Appellant for the offence of murder.
I therefore allow this appeal and I set aside the conviction and sentence of the Appellant.
The Appellant consequently, is hereby discharged and acquitted.
MOHAMMED LADAN TSAMIYA, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, ADAH J.C.A. I am in total agreement with his reasoning and conclusion. The appeal is meritorious and same is hereby allowed by me and the conviction and sentence of the appellant are both set aside. The appellant consequently discharged and acquitted.
EJEMBI EKO, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, S. J. ADAH, JCA. I have also read the Record of Appeal and all the briefs exchanged. The summary of the facts of this case as adroitly done by my learned brother is acceptable to me. I hereby adopt it.
It is quite clear to me that the basis of the conviction of the 1st Accused/Appellant is the finding of facts at pages 126 – 127 of the Record. That is:
From the evidence on record, it is quite obvious that the story of armed robbery and cultism that culminated into the stealing of a Nokia handset and the sum of N1,500.00 from the 1st accused while wielding a gun was a deliberate falsehood cooked up by the 1st accused in his bid to make good is threat to deal with the deceased and the other three. The 1st accused person allowed his crave for vengeance to overshadow his sense of reasoning. I believe the evidence of the prosecution witnesses to the effect that there was a disagreement as to the fare charged by the 1st accused person which culminated into a free flow of exchange of vulgar abuses by the parties. I believe that the said story of the deceased brandishing a gun was cooked up by the 1st accused and orchestrated by the 2nd accused person when they discovered the enormity of the callous, cowardly, uncalculated, and unlawful act of snuffing life out of the deceased through reckless use of gun.
These findings are, in my firm view, very perverse. The Appellant testified as the Dw.1 at pages 77 – 81 of the Record. His extra-judicial statement is part qt the proofs of Evidence of pages 9 – 12 thereof. They were not discredited or contradicted by the testimonies of the Pw.1 and Pw.4 who were present and were eye-witnesses of the scene when the Appellant claimed that he was slapped, that a gun was drawn and pointed at his head, and that the gang of four, including the deceased and Pw.1 and Pw.4 snatched his N1,500.00 and that they told him that they were cultists. These facts damnify even the pw.1 and pw.4. Yet none of them made any effort to contradict the Appellant on them. The Appellant was not cross-examined nor discredited on these proven assertions by the prosecution. These facts remain unscathed.
The law is settled that facts not challenged or disputed are taken as a established and they need not further proof. The prosecution at the trial by not taking any steps to contradict and/or discredit the Appellant on these facts should be taken to have admitted these facts. At the expense of repetition, facts admitted or which are deemed admitted need no further proof. They are taken as established. Admitted facts are invariably the best evidence. See DOKUBO-ASARI v. F.R.N. (2007) 5-6 SC 150; (2007) 12 N.W.L.R. (Pt.1048) 320; OLOFU v. ITODO (2010) 18 N.W.L.R. (Pt.1215) 545 SC. On these authorities and many others, the law enjoins the learned trial judge to act on these undisputed facts coming from the Appellant. A finding of fact, as done at pages 126 – 127 of Record concerning the Appellant, and which formed the basis of conviction for murder, in total disregard of uncontradicted or unchallenged admitted facts in the proceedings is no doubt perverse.
In ATOLAGBE v. SHORUN (1985) N.W.L.R. (PT.2) 360, which now is the locus classicus for the definition of the word perverse the Supreme Court, per Oputa JSC stated-
Perverse simply means persistent in error, different from what is reasonable or required, against the weight of evidence. A decision may be perverse where the trial judge took into account matters not to be taken into account or where the judge shuts his eyes to the obvious.
The ground rule is that on appeal court will not substitute its own finding of fact for that of the trial court except on well laid down grounds that the finding is either perverse or against law or rule of procedure. See OTEKI v. A.G. BENDEL STATE (1986) 2 N.W.L.R. (Pt.24) 648; (1986) 4 SC 222. Having found that the findings of fact made at pages 126 – 127 of the Record, as the learned trial judge did, are perverse and unreasonable I hold the firm view that the conviction and sentence of the Appellant cannot, in law, be sustained.
The presence of the Appellant at the scene was not to kill any human being. He was there was a bona fide complainant or a reporter of a crime being himself a victim of robbery. He conveyed the mobile policemen in his vehicle merely to assist them to effect an arrest. There is no evidence that he instigated or aided the exuberance of the policeman who shot the deceased. It is, therefore tenuous and unreasonable to hold that he aided the alleged murder merely because he reported a crime to police officers and conveyed the police officers in his vehicle in order to effect arrest of the four persons whom he had alleged robbed him at gun point and who had audaciously announced to him that they were “cultists”.
For these and the more detailed reasons contained in the judgment just delivered by my learned brother, S.J. ADAH, JCA I allow the appeal. The said judgment, including all consequential orders therein are hereby adopted by me.
Appearances
A. Adedipe with Akinola AkinyanjuFor Appellant
AND
W. boms with A. Aghedo (Miss)For Respondent
