INNOCENT OKEBATA v. THE STATE (2013)

INNOCENT OKEBATA v. THE STATE

(2013)LCN/6270(CA)

In The Court of Appeal of Nigeria

On Friday, the 7th day of June, 2013

CA/OW/25/2011

RATIO

INGREDIENTS TO BE PROVEN TO ESTABLISH THE OFFENCE OF MURDER

It is well settled that to convict a person charged with murder under the criminal code, the prosecution must prove beyond reasonable doubt the following points:
(a) That the deceased died.
(b) That the death of the deceased was caused by the accused person.
(c) That the act or omission of the accused person was intentional with knowledge that death or grievous body harm was its probable consequence. See the following cases:
– OGUNDIYAN V. THE STATE (1991) 3 NWLR (Pt. 181) 519
– AKPAN V. THE STATE (1991) 3 NWLR (Pt. 182) 646
– OKPUTUOBIOBIODE & ORS V. THE STATE (1970) All NLR 36.PER PHILOMENA MBUA EKPE, J.C.A.

BURDEN OF PROOF: PROOF OF ALIBI

IMPLICATIONS OF INCONSISTENCIES IN THE STATEMENT OF A WITNESS TO THE POLICE AND HIS EVIDENCE IN COURT

It is trite that minor differences between the statement of a witness to the police and his evidence in Court are unimportant, the inconsistency complained of must be of substance on a fact in issue. See Gabriel vs. State (1989) 5 NWLR (PT 122) 4753 at 469; Daniels vs. State (1991) 2 NWLR (PT 212) 715 at 728 and Ogoala vs. State (1991) 2 NWLR (PT 175) 509 at 526.PER UWANI MUSA ABBA AJI,(PJ) J.C.A

DUTY OF COURT: EVALUATION OF EVIDENCE

It is trite that all Courts of law are duty bound to give critical examination to evidence adduced before them and ensure that the innocent are not punished or the guilty set free. Courts should act on evidence and not on hunches, rumour or speculation so as to ensure that justice in its purest form is administered in the Courts to all and sundry. See Onah vs. State (1985) 3 NWLR (PT 12) 236. PER UWANI MUSA ABBA AJI,(PJ) J.C.A

EVIDENCE: EVIDENCE OF A DYING DECLARATION

The law is trite that evidence of a dying declaration is a special specie of evidence. Where the Court must rely on the account given by an eye witness who heard a dying declaration made by the deceased, strict proof is required of the dying declaration in the exact wards used by the deceased. Therefore, if the words used in the dying declaration are unclear, unprecise and not free from ambiguity, such a manifest contradiction would militate against its application. See Hausa vs. State (1994) 6 NWLR (PT.350) 281; Akpan vs. State (1994) 8 NWLR (PT 361) 226; Okokor vs. State (1967) NMLR 189; Ogba vs. State (1990) 3 NWLR (PT 139) 505.

JUSTICES

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

JOHN I. OKORO Justice of The Court of Appeal of Nigeria

PHILOMENA M. EKPE Justice of The Court of Appeal of Nigeria

Between

INNOCENT OKEBATA Appellant(s)

AND

THE STATE Respondent(s)

UWANI MUSA ABBA AJI,(PJ) J.C.A: (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Imo State, Owerri, presided over by Hon. Justice A.O.H. Ukachukwu delivered on the 21st day of July, 2009 in charge No. HOW/19C/2005 wherein the Appellant was convicted and sentenced to death by hanging.
The Appellant was charged with the offence of murder of one Sunday Onuoha contrary to Section 319(1) of the Criminal Code Laws of Eastern Nigeria, 1963, as applicable to Imo State of Nigeria. The Appellant pleaded not guilty to the charge.
The facts as can be deduced from the evidence of the prosecution’s witnesses are that, the deceased. Sunday Onuoha, left his house around 7pm on 17th July, 2003 after informing his wife,Justina Onuoha (PW.1) that his kinsman,Solomon Okebata sent for him in his house. At about 8pm, Justina Onuoha heard a distress call from the deceased calling on her that the Appellant Innocent Okebata, Anyiam Nwadike and Ekweaba Nwadike had killed him. Justina Onuoha ran to the scene in company of her daughter Mary Onuoha (PW2) carrying a lantern.
On getting to the scene, they saw the deceased rolling on the ground still shouting that Umuokparaezere have killed him mentioning the names of the Appellant, Anyiam Nwadike and Ekweaba Nwadike as his assailants.
Justina Onuoha (PW1) and her daughter (PW2) raised alarm which attracted many people to the scene. The matter was reported to Solomon Okebata whom the deceased went to visit before he met his death and (DW 2) Felix Amadi, the village chairman.
The deceased gave up the ghost before the arrival of his kinsmen to the scene and a big stick used in killing him was seen lying beside his corpse.
On getting to the scene, PW1 and PW2 heard the footsteps of people running inside the bush. PW1, on her way to inform their relations on what had happened, noticed a shadow hiding beside a mango tree close to the scene of the incident and with the aid of the lantern she was holding saw the Appellant and wanted to grab him but he run inside the bush but not before she had called out his name.
The village chairman came to the house of the deceased later after the incident in company of the Appellant, and PW1 on sighting him confronted him with the death of the deceased and he left and thereafter, ran away from the village. The others mentioned by the deceased as people that attacked him also ran away from the village. The Appellant was later arrested and charged with the murder of the deceased.
The Appellant on the other hand denies killing the deceased who he described as his brother as testified by PW1, and PW2 and also denied knowing who or what killed the deceased. That on the date of the incident,17th July, 2003 at about 7-8pm he was in his house. He returned with his wife late from the farm and was not feeling fine, he took his bath and drugs and went to bed, while his wife was peeling cassava with other women.
To establish its case against the Appellant, the prosecution called four (4) witnesses and tendered some Exhibits. The Appellant testified in his own defence and called one witness who testified as DW2.
After the close of the case of the parties learned Counsel addressed the court. In a considered judgment delivered on the 21st day of July, 2009, the learned trial judge convicted and sentenced the Appellant to death by hanging.
Aggrieved by the said decision, the Appellant has appealed to this court vide a Notice of Appeal dated upon six (6) and filed on the 19th day of October, 2009 Grounds of Appeal.
On the 8th October, 2012, the Appellant filed additional four (4) grounds of appeal. The Appellant’s Amended Notice and Grounds of Appeal are hereunder reproduced without their particulars as follows:-
GROUNDS OF APPEAL
1. ERROR IN LAW
The learned trial judge erred in law when he held that the evidence of PW1 and PW2 point, in the main, to the deceased’s dying declaration when the distress call alleged by the said witnesses to have proceeded from the deceased (Sunday Onuoha) does not qualify as admissible for a dying declaration (as forming res gestae).
2. ERROR IN LAW
The learned trial judge erred in law when he held that the defence of alibi did not avail the appellant despite his defence of alibi with its particulars set up by the appellant in “EXHIBIT D” at the earliest opportunity and in his testimony in Court.
3. ERROR IN LAW
The learned trial judge erred in law when he failed to accord the appellant fair hearing by having to rely on the extraneous evidence of PW2 (Miss Mary Onuoha) to convict and sentence the appellant to death.
4. ERROR IN LAW
The learned trial judge erred in law when he held that the prosecution has proved the charge when the evidence of the prosecution in proof of the charge was riddled with material and fatal contradictions so much that it is unsafe to convict on it.
5. ERROR OF MISDIRECTION
The learned trial judge misdirected himself in law when he ignored the circumstantial evidence (the Doctrine of last seen) linking one, Solomon Okebata with being the last man to see and be with the deceased before his death and went on to convict and sentence the appellant to death.
6. ERROR IN LAW
The decision of the Learned Trial Judge was unwarranted, unreasonable and cannot be supported, having to the evidence led at the trial.
7. ERROR IN LAW
The learned trial judge erred in law when he held:
“The evidence of the P.W. 1 and P.W. 2 point in the main to a dying declaration. Both witnesses testified that they were attracted to the scene by distress call on the P.W.1 that Umuokparaezere and directly the accused and two others as the assassins. I do not consider material the fact of the arrangement in the mention of the names as appeared in Exhibit A and B. It is in my view material that the evidence is that the deceased used Umuokparaezere’s and names of the assassins in a distress alarm there may not be any systematic order or arrangement of the names of the murderers.”
B. ERROR IN LAW
The learned trial Judge erred in law in convicting the Appellant upon the testimonies of PW1 and PW2 which were inconsistent with each other and their previous statements in material respects.
9. ERROR IN LAW
The Learned trial Judge erred in law when upon an examination for the evidence led by the defence, he held:
“In all I disbelieve the evidence of the accused and reject that of the D.W.2. I hold that the defence of alibi do not avail him.”
10. ERROR IN LAW
The learned trial Judge erred in law in upholding the hazy and contradictory evidence of the crime scene and the identification of the Appellant thereat by the prosecution witnesses.
In compliance with the rules and practice of this Court,parties filed and exchanged briefs of argument.
In the Appellant’s brief of argument settled by Sonny O. Wogu,Esq. the following two issues were distilled for determination to wit:
i. Whether the Respondent proved the charge of murder against the Appellant beyond reasonable doubt. (Distilled from Grounds 1, 3, 4, 5, 7, 8 and 10).
2. Whether the defence of alibi raised by the Appellant could not avail him given the facts and circumstances of the case before the trial Court. (Distilled from Grounds 2 and 9).
The Respondent’s brief of argument was settled by I. I. Amadi (Mrs.) Chief State Counsel, Ministry of Justice, Owerri, Imo State. Therein, the Respondent also distilled two issues for determination as follows:
1. Whether the prosecution proved the offence of murder beyond reasonable doubt against the Appellant.
2. Whether the defence of alibi avails the Appellant.
At the hearing of the appeal on the 16th April, 2013,Learned Counsel for the Appellant, Sonny O. Wogu, Esq. adopted and relied on the Appellant’s brief of argument dated and filed 8th/10/2012 and the Appellant’s reply brief of argument dated and filed the 16th/April, 2013 and urged the Court to dismiss the appeal and to set aside the conviction and sentence of the Appellant.
I.I, Amadi (Mrs.) for the Respondent adopted and relied on the Respondent’s brief of argument dated 7th/3/2013 and filed on the 14th/3/2013 but deemed properly filed on the 16th/4/2013 and urged the Court to dismiss the appeal and affirm the conviction and sentence of the Appellant.
I have considered the two issues, each nominated by the Appellant and the Respondent and it is my view that the issues are identical and will adopt the issues as nominated by the Appellant in the determination of the appeal.
Issue One:
Whether the Respondent proved the charge of murder against the Appellant beyond reasonable doubt.
Arguing the issue, learned counsel for the Appellant, Sonny O. Wogu, Esq. submitted that the Respondent did not by any means prove the charge of murder against the Appellant beyond reasonable doubt. He argued that for the Respondent to succeed in proof of the offence of murder, there must be proof beyond reasonable doubt of the following ingredients of the offence to wit: –
(i) The death of the deceased; and
(ii) The act or omission of the accused which caused death; and
(iii) That the act or omission of the accused stated in (ii) above was intentional with knowledge that death or grievous bodily harm was its probable consequences.
Reliance was placed on the following cases; Uguru vs. State (2002) 9 NWLR (PT 771) 90 @ 106; Gira vs. State (1996) 4 NWLR (Pt 443) 357; Nwaeze vs. State (1996) 2 NWLR (Pt.428) 1: and Ogba vs. State (1992) 2 NWLR (Pt 222) 164. Learned counsel therefore argued that to prove the offence of murder beyond reasonable doubt, the Respondent had the onus of establishing that the act or omission of the Appellant caused the death of the deceased and that the said act was intentional. Learned counsel highlighted the evidence adduced by the Respondent as follows: –
a. There was no eye witness to the circumstances leading to the death of the deceased. None of the prosecution witnesses witnessed the Appellant attack or contribute in any way to the death of the deceased.
b. PW1 and PW2 only witnessed the deceased rolling and struggling on the ground.
c. PW2 (who accompanied PW1 to answer the deceased’s distress call) admitted in the cause of cross-examination, “I do not know how he was killed. I was not there. I did not tell the police at Nwaorieubu that the accused hit my father with a stick”. Page 43 of the Record.
d. PW1 and PW2 were tainted witnesses. They revealed under cross examination that PW1 had a problem with the wife of the Appellant as a result of their farming on the land allegedly belonging to their husband and father i.e, the deceased.
e. PW3 merely tendered a medical report of an autopsy which did not implicate the Appellant in any way.
f. PW4 stood in for the actual Investigating Police Officer and admitted that he only knew the handwriting of the actual Investigating Police Officer and that he knew nothing about the case.
g. Material ,contradictions and inconsistencies riddle the Respondent’s case.
Learned counsel then submitted that the Appellant and his witness DW2 gave credible and unshaken evidence on oath that the Appellant was not at the scene of the alleged crime. That he was in his own residence in the company of some women including his late wife and one Regina Amadi at the time the deceased was allegedly murdered. That the Appellant was called from his residence on that fateful day by DW2 in the company of Julius Nwokocha. Mr. Wogu, Esq then submitted that from the available evidence before the trial court, there was no eye witness to the circumstances leading to the death of the deceased as PW1 and PW2 merely testified that they saw the deceased struggling on the ground before he eventually died as they never saw any one attack him.
Learned counsel further submitted that PW2 testified under cross examination that, “I do not know how he was killed. I was not there”. (Page 43 of the record). He argued that there was no evidence before the trial court upon which to found that the death of the deceased was; (i) the act or omission of the accused and (ii) that the act was intentional with knowledge that death or grievous bodily harm was its probable consequence.
Learned Counsel went on to argue that the Learned trial Judge relied on the purported dying declaration of the deceased and the tainted evidence of PW1 and PW2 and inconsistent and/or contradictory testimonies of the witnesses of the Respondent as well as speculations and conjectures as the basis of the said conviction. He referred to page 87 of the records paragraph 8 lines 4 to 8 and page 88 paragraph 1 lines 1 to 4 thereof to submit that the law is settled that evidence of dying declaration is a special specie of evidence and where the Court must rely on the account given by an eyewitness who heard a dying declaration made by the deceased, strict proof is required of the dying declaration in the exact words used by the deceased. He submitted that if the words used in the dying declaration are unclear, unprecise and not free from ambiguity, such a manifest contradiction would militate against its application. He relied on the cases of Hausa vs. State (1994) 6 NWLR (PT 340) 281; and Akpan Ikono vs. State [1973] NSCC 352. He thus submitted that PW1 and PW2 gave varying accounts of the declaration of the deceased particularly in the names of his assailants and urged the Court to hold that the said declaration ought not to have weighed with the learned trial judge.
Mr. Wogu, Esq. further submitted that the law is that a trial judge must make specific finding of fact that at the time the deceased made the dying declaration he believed that he was in danger of approaching death. Reliance was also placed on the cases of Akpan vs. State (1994) 8 NWLR (PT 361) 226; and Okokor vs. State (1967) NWLR 189, to submit that there was no such finding of fact in the judgment of the learned trial judge and that the conclusion that the deceased’s statement is a dying declaration runs contrary to the law and ought not to connect the Appellant to the offence as no one saw the Appellant attack the deceased. He also cited REX vs. Bang Weyeku, WACA IX-XI 195.
It is also submitted by Mr. Wogu, Esq. of learned counsel for the Appellant that the Learned Trial Judge also relied on the evidence of tainted witnesses in that both PW1 and PW2 admitted their family and the family of the deceased had land dispute. That PW1 had a land dispute with the wife of the Appellant as a result of their farming on the land allegedly belonging to her husband i.e. the deceased. On who is a tainted witness, learned counsel referred to the following cases; Ishola vs. The State (1978) NSCC 499 at 509; Okoro vs. State (1998) 14 NWLR (PT.584) 181; Ifejirika vs. State (1999) 3 NWLR (PT.593) 59 at 77 and Agbanyi vs. State (1995) 1 NWLR (PT.369) 1. He also submitted that the evidence of such a witness should be treated with considerable caution and should be examined with a tooth comb as the Court should be very wary in convicting on the evidence of such witnesses without corroboration, relying on the case of Agbanyi vs. State (1995) 1 NWLR (PT 369) 1 at 20 – 21. He also argued that the learned trial judge did not give any consideration to the animosity between the Appellant and PW1 and PW2 and that such doubt should be resolve in favour of the Appellant.
The learned counsel further submitted that there were material inconsistencies and contradictions in the testimonies of PW1 and PW2 and highlighted them as hereunder reproduced.
(a) That in her statement to the police Exhibit ‘A’, PW1 did not say anything about seeing the Appellant at the scene of crime or attempting to grab him. That in her oral testimony in Court, PW1 stated. I tried to grab him. That she also stated at page 31 line 5 of the record of appeal, “after my failed attempt to arrest the accused at the scene, I saw him again that night.”
(b) That in both Exhibit ‘A’ and her testimony in Court, PW1 never said that any bodily accompanied her to the scene in response to her husband’s distress call, PW2 claimed that she accompanied PW1 to the scene of the alleged crime.
(c) That in both her statement to the police Exhibit “B” and her oral testimony in Court, PW2 never mentioned seeing the Appellant at the scene of the alleged crime or that her mother PW1 tried to grab him.
(d) That there were material inconsistencies as to when and where PW1 saw the Appellant on the night of the alleged incident. That PW1 testified (at page 28 of the record of appeal) that “when I came out I saw my husband lying on the spot where I saw the accused.” It is submitted that the testimony of PW2 in Court contradicted this piece of evidence when she stated, “later our people sounded the village gong. People gathered. My mother while going to a relation with the lantern saw the accused standing by a mango tree. My mother held him but he pushed her and ran away.” (See page 40 lines 15 – 17 of the record of appeal). Learned Counsel submitted that the Appellant was not seen at the alleged scene of crime but much later when PW1 was going to a relation.
(e) It is also stated that PW1 stated in Exhibit ‘A’ that the deceased mentioned names of some people while dying. The first name on the list was Solomon Okebata (not charged in Court). That PW1 stated in examination in chief that, “The others shouted by my husband ran into the bush. I only saw the accused because of his attempt to hide by the mango.” (page 28 line 3-5 of this records of appeal).
(f) That PW1 also stated under cross examination that, “I did not tell the police that my husband shouted that Solomon also killed him. I also told them that Solomon came to invite him. (Page 31 lines 20 – 21 of the record of appeal).
(g) That in her evidence in chief, PW1 stated: “I went to Solomon and told him that they, including Solomon had killed my husband” (page 27 lines 19 to 28 line 1 of the record). That in her evidence in chief, PW2 stated, “I (i.e. PW2) then went to Solomon’s house to inform him that the person he sent for has been killed. He followed me to the scene where he saw my father lying dead.” He gave me N300.00 to invite the police at Ukwuorji.”
Learned Counsel submitted that the whole essence of the testimony of PW2 was to exculpate Solomon Okebata unlike the testimony of PW1 which clearly implicated Sololomon Okebata. He also submitted that the position of the law is that where witnesses for a party give inconsistent and/or contradictory testimony especially on material facts, their evidence on the point must be regarded as unreliable and rejected as such. He placed reliance on the cases of Onubogu vs. State (1974) ALL NLR 561 and Oluma vs. Onyuna (1996) 4 NWLR (PT 443) 449 at 457 that the learned trial judge ought in the circumstances to regard the testimonies of PW1 and PW2 as unreliable.
Learned Counsel submitted also that the learned trial judge resorted to speculations, suspicion and hunches to convict the Appellant contrary to the position of the Law.
The following cases were relied upon; Aiguoreghian vs. State (2004) 3 NWLR (PT 860) 367; Tijjani vs. COP (1994) 3 NWLR (PT 335) 692; and Onah vs. State (1985) 3 NWLR (PT 12) 236 at 244. He referred to the judgment of the Lower Court at page 88 paragraph 4, lines 6 to 10 of the record of appeal to submit that all that the learned trial judge had at his disposal were hunches suspicion and conjectures and not hard evidence and submitted that there was no legally admissible evidence before the trial Court to establish two essential elements of the offence of murder. He submitted relying on the case of Alabi vs. State (1993) 7 NWLR (PT 307) 511, that if there is failure to establish one element of an offence then there is failure to prove the case beyond reasonable doubt. Similarly, where there is failure to link the death of a deceased with the act or omission of an accused person, then no prima case was made against the Appellant and the Court was therefore wrong to convict him. The Court was urged to resolve this issue in favour of the Appellant and to hold that the Respondent did not prove the charge of murder against the Appellant beyond reasonable doubt.
In her response, I. I. Amadi, Esq. for the Respondent submitted that the offence of murder was proved against the Appellant beyond reasonable doubt. She submitted that in case of murder, it is the duty of the prosecution to prove the following ingredients namely: (a) that the deceased died, (b) that the death of the deceased was caused by the accused person and (c) that the act or omission of the accused person was intentional with knowledge that death or grievous body harm was its probable consequence. The following cases were relied upon; Ogwa Nweke Onah vs. State (1985) 3 NWLR (PT 12) 236); Ubani vs. State (2004) FWLR (PT 19) 1533 at 1546: Aigbengbe vs. State (1998) 1 ACLR 168 at 206; and Section 316 of the criminal code, Cap 30, Vol. II Laws of Eastern Nigeria, 1963 applicable in Imo State was referred to.
Learned Counsel thus submitted that the Respondent proved successfully all the above ingredients of murder. That the Respondent proved that the deceased Sunday Onuoha died. She referred to the testimony of PW1, Mrs. Justina Onuoha, wife of the deceased wherein she testified thus, “I am married to Sunday Onuoha. He is late. He was killed.” The evidence of PW2, PW3 and “Exhibit C” which is the report of the autopsy examination carried out on the deceased by PW3. It is also submitted that the evidence of DW 1 and DW 2 are in agreement that the deceased Sunday Onuoha is dead.
On whether the death of the deceased was caused by the Appellant, Learned Counsel submitted that the Respondent established that it was the act of the Appellant that caused the death of the deceased Sunday Onuoha. That the deceased died as a result of violent attack. He referred to the evidence of PW3, Dr. Osuji Jonathan Nnawuihe who carried out an autopsy examination on the deceased who testified as to the nature of the injuries sustained by the deceased, that the injures cannot be self inflicted and that the injuries were inflicted from behind with a blunt object and that a big stick used to attack the deceased was seen lying beside the body of the deceased.
Learned Respondent’s Counsel also submitted that they establish that the Appellant was among those who killed the deceased. She referred to the evidence of PW1 when she testified that, “following the distress call by my husband. I ran to the scene and there I saw the accused. As I was coming, I carried a lantern. I saw the accused with help of the lamp. I saw the accused as he hid himself. I tried to grab him I could not hold him because of my stroke affected hand.” (Page 27 lives 15-19 of the records). That PW1 testified further that the deceased shouted the names of Innocent Okebata (Accused), Anyiam Nwadike and Ekweaba Nwadike as those who killed him. Learned Counsel also stated that the evidence of PW2 Mary Onuoha corroborated the evidence of PW1 as to the fact that deceased before dying mentioned the names of his assailants as the Appellant, Anyiam Nwadike and Ekweaba Nwadike. That PW2 also testified that her mother PW1 actually saw the Appellant hiding by a mango tree close to the scene of the incident. Learned Counsel also stated that both PW1 and PW2 testified that when the Appellant came to their house, shortly after the incident in company of DW 2, Felix Amadi, PW1 accused the Appellant of having murdered the deceased and asked him to leave her house and that DW 2 corroborated this.
Mrs Amadi therefore argued that the declaration of the deceased to PW1 and PW2 to the effect that Ikechi ( the Appellant), Anyiam Nwadike and Ekweaba Nwadike have killed him, passes the test of a dying declaration as to the cause of death of the deceased and is relevant and admissible. She referred to the case of Okoro vs. State (2007) ALL FWLR (PT 361) 1794 at 1808. Learned counsel thus submitted that the above pieces of evidence and the dying declaration of the deceased and the fact that PW1 saw the Appellant at the crime scene fixed him at the scene of crime and point to the irresistible conclusion that the Appellant is among the people who murdered the deceased.
The Court was urged to so hold, more so when the these pieces of evidence were neither controverted nor discredited by the defence. She referred to Oforlete vs. The State (2000) 3 NSCQR 245.
Mrs. Amadi, Esq. for the Respondent also submitted that the Respondent was able to prove that the act or omission of the Appellant was intentional with knowledge that death or grievous bodily harm was the probable consequence. She argued that a man intends the natural consequence of his actions, relying on The State vs. Abdulmumini Garba (1980) 1 NCR 358. She submitted that the evidence of PW3 together with “Exhibit C” shows that the deceased died as a result of traumatic pulmonary hemorrhage secondary to blunt injury on the back of the chest. Learned Counsel argued that the act of hitting the deceased on the back side of his chest with a big stick shows that the Appellant and his cohort intended to cause the death of the deceased as death was the natural consequence of that action and that the act of the Appellant was deliberate and calculated to kill the deceased. That PW3 testified that the attack was from the back and not frontally. The case of Garba vs. The State (2000) FWLR (PT 24) 1443 at 1460 was referred to, to submit that if from the intentional act of injury committed, the probability of death resulting in high, the finding should be that accused intended to cause death or injury sufficient in the ordinary course of nature to cause death. It is her view that in the instant case, the probability of death resulting from the act of Appellant and his cohorts i.e. hitting the deceased with a big stick at the back chest was high. She referred to Amafo vs. State (2000) FWLR (PT 91); and Garba vs. State (Supra) to submit that where a person delivered a violent below with a stick or club on a vulnerable part of the body (as in this case the back of the chest) must be deemed to have intended to cause such bodily injury as he knew that death would be the probable consequence of his action. Learned Counsel thus submitted that the Respondent was able to establish all the ingredients of murder against the Appellant and therefore proved the offence of murder against the Appellant beyond reasonable doubt. The Court was urged to resolve this issue in favour of the Respondent.
Learned Counsel further submitted that the learned counsel for the Appellant made heavy weather of the alleged contradictions in the evidence of the prosecution witnesses particularly PW1 and PW2 and submitted that before any conflicts or contradictions or even discrepancies in the evidence of witnesses for the prosecution can be fatal to the case of the prosecution, the conflicts or contradictions must be substantial or fundamental to the main issue in question before the trial Court. She referred to the cases of Afolabi vs. State (2010) ALL FWLR (PT.538) 812 at 837 and Aigbadion vs. State (2000) 4 SC to submit that the alleged contradictions raised by the Appellant’s Counsel do not exist and where they do exist, they are not enough to impugn the credibility of the prosecution’s witnesses and the Court was urged to so hold.
On the submission that PW1 and PW2 are tainted witnesses and their evidence should not be relied on, she submitted that the argument is misconceived. It is her view that the evidence of PW1 and PW2 are cogent and compelling showing that it was the Appellant and his cohorts that murdered the deceased. She also submitted that the alleged problem that existed between PW1 and the wife of the Appellant does not make them tainted witnesses. Reliance was placed on the case of Ochemaje vs. State (2003) ALL FWLR (PT 435) 1664 at 1686- 1687. The Court was urged to discountenance the submission.
On the submission of Mr. Wogu Esq. of learned counsel for the Appellant that the statement of the deceased to PW1 and PW2 to the effect that it was the Appellant and others he mentioned that killed him, does not qualify as a dying declaration and the trial Court was wrong to have convicted the Appellant based on same, Mrs. Amadi Esq. of learned counsel for the Respondent submitted that there is nothing in Section 40(1) of the Evidence Act, 2011 stipulating that there must be a formal declaration before it is applicable. That what is actually required is mere statement. That for a statement to be qualified as a dying declaration under this section, the following conditions are required:
a. That the declaration itself which may be written or verbal must be of relevant facts.
b. The declarant must have died before evidence of the declaration is required to be given.
c. The declaration must relate to the cause of the death of the declarant or as to any of the circumstances of the transaction which resulted in his death and the cause of the declarant’s death must be in question at the trial.
d. The declaration is relevant only in trials for murder or for manslaughter of the declarant.
e. The declarant must have believed himself to be in danger of approaching death.
It is the view of Learned Counsel that from the evidence laid before the trial Court, all the above conditions were met. That the decease declaration was in relation to the cause of his death and the people responsible for his death and that the trial Court was right in admitting same as a dying declaration. That the fact that the statement does not qualify as a dying declaration because there was nothing to show that the deceased while making same believed himself to be in danger of imminent death is misconceived because the deceased died almost immediately after making the statement. This, she submitted shows that the deceased knew that he was going to die and did in fact say that the Appellant and his cohorts have killed him. The Court was urged to so hold.
Also, on the argument of learned counsel for the Appellant that there was no direct eye witness account of the incident leading to the death of the deceased upon which the trial court convicted the Appellant, learned counsel submitted that a criminal case can be proved beyond reasonable doubt either by direct or circumstantial evidence and cited in support the cases of Okorogbo vs. State (1992) 1 NWLR (PT 222) 244 at 254; and Ahmed vs. State (2003) 3 ACLR 145 at 160-161. It is submitted that though there was no direct eye witness account of how the Appellant inflicted the injury which caused the death of the deceased, that the Respondent establish through circumstantial evidence in proving that it was the Appellant and his cohorts who inflicted the injury which killed the deceased, and that the trial court was right to have convicted the Appellant based on the circumstantial evidence adduced by the prosecution witnesses and the Court was urged to resolve the issue in favour of the Respondent.
In his reply brief, learned counsel for the Appellant Wogu, Esq. submitted that the Respondent’s submission that the evidence of the prosecution witnesses were neither controverted nor discredited by the defence is to say the least incorrect and misleading of the straight forward facts as born out by the record of appeal. He referred to the evidence of PW1 and PW2 undercross-examination that PW1 had problem with the Appellant’s wife as a result of their farming on the land allegedly belonging to the deceased while PW2 also testified that she does not know who killed the deceased as she was not there and that she did not tell the police that it was the Appellant that hit her father with a stick. He also stated that the Appellant stated on oath that he was roped into this case because PW1 had a quarrel with his late wife and the case was decided against PW1 by the women of the village, It is his view that address of counsel cannot be a substitute for evidence and referred to the case of Neka B.B.B Mfg Co. Ltd vs. ACB Ltd (2004) 2 NWLR (PT 858) 251 at 543.
I have dispassionately albeit critically considered the submissions of Mr. Wogu, Esq. for the Appellant and Mrs. Amadi, Esq. for the Respondent on this issue and the legal authorities cited in support of their submissions.
It is a cardinal requirement of our criminal justice system that the prosecution must prove its case beyond reasonable doubt. This means that every ingredient of the offence must be established to that standard of proof so as to leave no reasonable doubt of the guilt of an accused. See Muka vs. State (1976) 9 – 10 SC 305; Anekwe vs. State (1976) 8 – 10 5C 255: Aiguoreghian vs. State (2004) 3 NWLR (PT 860) 367 at 407 – 408. To ground a conviction of murder, the prosecution must establish beyond reasonable doubt the following ingredients of the offence, namely:
(a) The death of the deceased;
(b) The act or omission of the accused which caused the death; and
(c) That the act or omission of the accused which caused the death was intentional with knowledge that death or grievous bodily harm was its probable consequence.
The burden which never shifts on the prosecution to prove not only that the action of accused could have caused the death of the deceased but that it certainly did.
From the evidence of the prosecution witnesses including the defence, and Exhibit C, the medical report of the death of the deceased, there was overwhelming evidence that the deceased, Sunday Onuoha died on the 17th day of July, 2003. See Uguru vs. State (2002) 9 NWLR (PT 771) 90 at 106; Gira vs. State (1996) 4 NWLR (PT 443) 375; Nwaeze vs. State (1996) 2 NWLR (PT 428) 1; Ogba vs. State (1992) 2 NWLR (PT 222) 164. Okoro vs. State (1998) 14 NWLR (PT 584) 181. In the instant case, the death of the deceased has been established by the prosecution beyond reasonable doubt.
Learned Counsel for the Appellant argued that there was no eye witness to the circumstances leading to the death of the deceased and none of the prosecution witnesses witnessed the Appellant attack or contribute in any way to the death of the deceased as PW1 and PW2 only witnessed the deceased rolling and struggling on the ground.
In her testimony before the Court, PW1, Justice Onuoha, wife of the deceased states as follows:
“…I remember 17th July, 2003. On that day my husband returned from where he went. On his return, one Solomon Okebata sent for him. That was about 7pm. After his discussion in the house of Solomon, he was coming back to the house. The next thing I heard was a shout from him calling on the Justina to come that they have killed him. He shouted the names of Innocent Okebata (Accused), Anyiam Nwadike and Ekweaba Nwadike as those who had kill him.
Following the distress call by my husband, I ran to the scene and there I saw the accused. As I was coming, I carried a lantern. I saw the accused with the help of the lamp. I saw the accused as he hid himself. I tried to grab him but he escaped and ran away. I could not hold him because of my stroke affected hand….”
PW2 Mary Onuoha, the daughter of the deceased testified as follows:
“I remember 17th July, 2003…. On that day, I came back from work…. My father came back from where he had gone; Solomon Okebata sent for him to come. My mother tried to dissuaded him from going saying that it was night and dark. My father ignored her and left to Solomon house. As he was returning from Solomon’s house we heard him shouting “Justina Justina Umuokwaraeze have killed me” when we heard the alarm my mother left for the scene with a lantern. I accompanied her. This incident was about 7-8pm.
When we got the scene we found my father on the ground. My mother bent down and held him asking to know what happened. My father shouted Ikechi, Anyiam and Ekweaba have killed him.” Ikechi is the accused …”
Based on the testimonies of PW1 and PW2 as reproduced above, Appellants’ Counsel argued that there was no eye witness account of how the deceased died and PW2 testified further that she did not know how her father was killed as she was not there.
It is trite that cause of death can be proved by direct or circumstantial evidence. The direct evidence required to prove the cause of death in murder charge must be such as would connect the deceased person with the act of the accused. The circumstantial evidence that will meet the requirement of onus of proof in criminal cases is the evidence that fixes the accused to the crime with sufficient cogency and which excludes the possibility that someone else had committed the crime. See Nweze vs. State (1996) 2 NWLR (PT 428) 1 at 11. This type of evidence may include the evidence of the medical practitioner who examined or performed post-mortem examination on the deceased and certifies that the injuries inflicted on the deceased caused his death.
In the instant case, PW3, Dr. Osuji Jonathan Nnawuihe who carried out an autopsy examination on the deceased testified to the effect that “surface examination of the dead showed an elaborate contused injuries at the posterior chest wall (i.e. back of the chest). Closer examination following the dissection of the skull revealed no abnormalities. But that of the abdomen toraxic cavities revealed haemotorax (accumulation of blood within the torax) with bilateral severe haemorrhage and bleeding within the middle and lower globes of the lungs. The above findings were consistent with death from traumatic plumunary haemorrhage secondary to blunt injury on the back of the chest.” See also Exhibit ‘C’. PW3 went further to state that the injuries cannot be self inflicted. The injuries could be inflicted from behind not frontally.
DW 2 testified that a big stick allegedly used to hit the deceased was lying on the ground at the scene.
It is not in dispute that neither PW1 nor PW2 actually saw who dealt the heavy blow that caused the death of the deceased almost instantly.
PW1 and PW2 only witnessed the deceased rolling and struggling on the ground. In her testimony as reproduced above, PW1 testified that she heard a shout from the deceased calling her to come that they have killed him and called the names of Innocent Okebata (Appellant) Anyiam Nwadike and Ekweaba Nwadike as those who killed him. PW2 also in her evidence stated that they heard the deceased shouting Justina, That Umuokwaraeze have killed me. He shouted that Ikechi, Anyiam and Ekweaba have killed him. That Ikechi is the accused.
Now, the question is, is such evidence of declaration by PW1 and PW2 capable of being acted upon as a dying declaration? The Learned trial Judge accepted the declaration made by the deceased that the Appellant, Anyiam Nwadike and Ekweaba Nwadike as narrated by PW1 and as stated also PW2 that Umuokwaraeze have killed me as a dying declaration and found the Appellant guilty of the murder of the deceased in the absence of direct evidence linking the Appellant with the murder of the deceased.
The law is trite that evidence of a dying declaration is a special specie of evidence. Where the Court must rely on the account given by an eye witness who heard a dying declaration made by the deceased, strict proof is required of the dying declaration in the exact wards used by the deceased. Therefore, if the words used in the dying declaration are unclear, unprecise and not free from ambiguity, such a manifest contradiction would militate against its application. See Hausa vs. State (1994) 6 NWLR (PT.350) 281; Akpan vs. State (1994) 8 NWLR (PT 361) 226; Okokor vs. State (1967) NMLR 189; Ogba vs. State (1990) 3 NWLR (PT 139) 505.

It is trite that before a dying declaration is admitted by a Court under Section 40 of the Evidence Act 2011, there must be positive evidence that the deceased was in danger of approaching death or in fear of death. That is, while the deceased need not invariably say that he was going to die from the wounds, the law expects him to believe that he is in danger of approaching death. There should therefore be a specific finding on the part of the trial judge that at the time of the deceased person’s declaration, he was in danger of approaching death, although he may have hopes of recovery. In otherwords, by the provisions of Section 40 of the Evidence Act, no dying declaration is admissible in the absence of proof that the deceased believed himself to be in danger of approaching death when the made it. See Okokor vs. State (1967) NMLR 189; Ikono vs. State (1973) 5 SC 231; Hausa vs. State (1994) 6 NWLR (PT 350) 281.
In Hausa vs. State (Supra), it was held that where the Court must rely on the account given by an eye witness who heard the dying declaration made by the deceased, strict proof is required of the dying declaration in the exact words by the deceased. Thus if the words used in the dying declaration are unclear, unprecise and not free from ambiguity, such a manifest contradiction would militate against its application. In the instant case, it is common ground that the words used by the deceased on being shot as related by PW2 were.
“Hausa has shot me; Hausa has shot me.” In the words of PW3, they were, Hausa you have shot me. Hausa you have shot me.” The case of the prosecution was thus not proved by the dying declaration.
Similarly in the instant case, the dying declaration relied upon by Lower Court related by PW1 were, ‘The next thing I heard was a shout from him calling on me Justina to come that they have killed him. He shouted the names of Innocent Okebata (Accused) Anyiam Nwadike and Ekweaba Nwadike as those who killed him. PW2 testified as follows: “As he was returning from Solomon’s house he heard him shouting; Justina, Justina Umuokwaraezere have killed me.” She also said, my father shouted Ikechi (Appellant) Anyiam and Ekweaba have killed him. Applying the principle of dying declaration as enunciated in the case of Hausa vs. State (supra), and also the fact that there was no finding in the judgment of the learned trial judge that at the time the deceased made this dying declaration, he believed that he was in danger of approaching death, the case of the prosecution was clearly not proved by dying declaration. See Akpan vs. State (supra) and Okokor vs. State (supra) and Ikono vs. State (1973) NSCC 352.
Closely related to this is the argument that PW1 and PW2 are tainted witnesses. Counsel for the Appellant argued that both PW1 and PW2 admitted that their family and the family of the Appellant had land disputes. PW t had a dispute with the wife of the Appellant as a result of their farming on the land allegedly belonging to the deceased. PW2 also stated that before the incident the Appellant had a land dispute with her father which her father won.
The question is, who is a tainted witness? A tainted witness is a witness who might have his own purpose to serve by giving evidence. These also include persons with accepted enemity over a land dispute between them and the accused person. Let me venture to add here that the fact that PW1 and PW2 are wife and daughter of the deceased does not ipso facto make them tainted witnesses. However, in the instant case, there is the evidence of land dispute between the families and this would have made the judge wary of their evidence and take extra caution to warn himself before he accepted their evidence. See Okoro vs. State (1998) 14 NWLR (PT 584) 181; Ishola vs. The State (1978) NSCC 499 at 509; Ifejirika vs. State (1999) 3 NWLR (PT 593) 59 at 77 and Agbanvi vs. State (1995) 1 NWLR (PT 369) 1.
However, the learned trial judge did not give any consideration to the existing land dispute between the wife of the Appellant and PW1 and between the deceased and the Appellant which the deceased had won. The learned trial judge ought to have considered and made a finding of fact on the existing grudge between them and on which the learned trial judge would have been every cautions and slow in accepting and relying completely as he did on the evidence of PW1 and PW2 to convict the Appellant. In the case of Mbenu vs. The State (1988) 3 NWLR (PT 84) 615 at 626 – 627, the Supreme Court Per Nnamani, JSC (of blessed memory) said,
“This court has always held that the evidence of such a witness should be treated with considerable caution and should be examine with a tooth comb. Indeed Trial Courts have been advised to be very wary in convicting on the evidence of such witnesses without some corroboration….”
Although the requirement that a trial judge should in such circumstances warm himself as one would in the case of accomplices, is one dictated by prudence not by Law. The learned trial judge ought to have considered and made a finding of fact that there is an existing grudge against them in which he would have been cautious and slow in accepting the entirety of the evidence of PW1 and PW2 as he did and convicting the Appellant. I am therefore of the firm view that this is certainly a case in which the doubt should have been resolve in favour of the Appellant. See Okonji vs. The State (1987) 1 NWLR (PT 52) 659.
Learned Counsel for the Appellant also argued that there are material contradictions and inconsistencies in the evidence proffered by the Respondent. The said inconsistencies and contradictions as highlighted by the Appellant in his brief of argument are also highlighted in this judgment and need not be reproduced here. However, I wish to state that the contradictions between the testimonies of PW1 and PW2 with their extra judicial statements to the police admitted in evidence as Exhibits A and B are of no moment. Before any contradiction can be established between the evidence of a witness and the statement made previously by the witness, the statement must be brought to the attention of the witness in accordance with the provisions of Section 232 of the Evidence Act, 2011. In the present case, both PW1 and PW2 were never confronted with their extra judicial statements so as to be cross examine with the view to discrediting the witnesses pursuant to Section 232 of the Evidence Act 2011. See Kwaghshir vs. State (1995) 3 NWLR (PT.386) 651. It follows therefore that the Appellant cannot now use Exhibit A and B to contradict the evidence of PW1 and PW2.
However, it is trite that if the prosecution is to succeed, then its case as presented must be consistent. If there is inconsistency in the prosecution’s case such as to cast doubt on the guilt of the accused person, the accused is entitled to be given the benefit of doubt and he should be discharged and acquitted. See Onubogu vs. State (1974) 9 5C 1; Kalu vs. State (1988) 4 NWLR (PT 90) 503, and Gira vs. State (1996) 4 NWLR (PT 443) 375. It is not every discrepancy between what a witnesses says and what another says, or between what a witness says at one time and what he says at another that is sufficient to destroy the credibility of a witness altogether. However, where there are such contradictions and inconsistencies in the evidence before a criminal court such as to cast reasonable doubt upon the guilt of the accused person/ such accused person should be given the benefit of the doubt and not be convicted on the evidence of such unreliable evidence. See Onuchukwu vs. State (1998) 4 NWLR (PT 547) 576 at 590.
I have considered the arguments and contentions of both counsels. I pause to ask whether there are real material contradictions and inconsistencies to have rendered the prosecution’s case so discredited and so unreliable that no reasonable tribunal can convict upon it. I have considered the evidence of PW1 and PW2. PW1 testified further that following the distress call by her husband, she ran to the scene and there she saw the accused. That she saw the accused with the help of the lantern she was carrying. That she saw the accused as he hid himself behind a mango tree and she tried to grab him but he escaped and ran away. She also said she went to Solomon and told him that they, including Solomon have killed her husband. That when she came back the accused was hiding by mango tree. That when she came out, she saw her husband lying on the spot where she saw the accused. That she saw the accused because of his attempt to hide by the mango.
Also PW2 testified further that when we heard that alarm my mother left for the scene with a lantern. That she accompanied her. That when they got to the scene they found her father on the ground and her mother bent down and held her father asking to know what happened. My father shouted Ikechi, Anyiam and Ekweaba have killed him. She then went to report to their relations about the incident. Later, the people sounded the village gong and people gathered. That her mother while going to relation with a lantern saw the accused standing by a mango tree. That her mother held him but he pushed her out and ran away.
Now the question is, at what point in time did the PW1 and PW2 saw the accused person? Was it immediately on getting to the deceased at the scene or on her way back from Solomon as testified by PW1 or after the village gong was sounded and was going to a relation that she saw the accused as testified by PW2? Also who first between PW1 and PW2 that reported to Solomon as both claimed they did. This is a serious contradiction. Where there is contradiction or inconsistencies in the prosecution’s case such as to cast doubt on the guilt of the accused, the accused should be given the benefit of doubt and he should be discharged and acquitted. See Nwaeze vs. State (1996) 2 NWLR 9 (PT. 428) 1; Onubogu vs. State (1974) 9 SC 1: Nwabueze vs. State (1988) 3 NWLR (PT 80) 16 and Kalu vs. State 1988) 4 NWLR (PT 90) 503). Therefore to establish that an accused killed the deceased, the prosecution must adduce evidence linking the accused with the death of the deceased by showing either a positive act or a negative omission of the accused causing injury to the deceased which in turn resulted in the deceased’s death.
In the instant case, there is no nexus between the death of the deceased with the act of the Appellant. There is no evidence that the Appellant inflicted the injury on the deceased that caused his death. None could even be inferred from the testimonies of PW1 and PW2. There was also no nexus with the stick found at the scene of crime with the Appellant.
It is trite that all Courts of law are duty bound to give critical examination to evidence adduced before them and ensure that the innocent are not punished or the guilty set free. Courts should act on evidence and not on hunches, rumour or speculation so as to ensure that justice in its purest form is administered in the Courts to all and sundry. See Onah vs. State (1985) 3 NWLR (PT 12) 236. The finding by the learned trial judge at page 88 of the record of appeal are clearly based on speculations and conjectures. I agree with the learned counsel for the Appellant that there was no legally admissible evidence before the trial court to establish two essential elements of the offence of murder that is that it is the act of the Appellant that caused the death of the deceased and that the injury inflicted was done by the Appellant with the intension of causing death. It is trite that where there is failure to establish one element of an offence, then there is failure to prove the case beyond reasonable doubt. See Alabi vs. State (1993) 7 NWLR (PT 307) at 511. The Respondent failed to establish that the death of deceased was caused by the Appellant’s act or omission. This issue is therefore resolved in favour of the Appellant.
Issue 2
Whether the Defence of Alibi raised by the Appellant could not avail him given the facts and circumstances of the case before the trial Court.
Mr. Wogu, Esq. for the Appellant arguing this issue submitted that given the facts and circumstances of the case before the trial court, the defence of alibi raised by the Appellant could have availed him and entitled him to an acquittal.
He submitted that where an accused has at the earliest opportunity adduced evidence of alibi, described where he was on the day of the occurrence of the crime, the duty falls on the prosecution to strictly investigate and prove otherwise, and the following cases were cited; Adele vs. State (1995) 2 NWLR (PT.377) 269 at 290; Aiguoreghian vs. State (2004) 3 NWLR (PT.860) 367 at 420; and Onuchukwu vs. State (1998) 4 NWLR (PT.547) 576 at 591. Counsel submitted that as soon the Appellant was arrested he made a statement to the police Exhibit D wherein he gave detailed account of where he was and those he was with on the date and time when the deceased was allegedly murdered, that he was with some women, including one Regina Amadi, and that the said alibi was not investigated, and the Investigation Police Officer was not called by the Respondent to give evidence of the outcome of any such investigation and that in the circumstance, the Appellant is entitled to discharge and acquittal.
Learned Counsel also argued that there was formidable evidence before the trial Court on the issue of alibi and in spite of the absence of the Investigation Police Officer, disbelieved the evidence of the Appellant and submitted that the conclusion of the learned trial judge runs contrary to the position of the law as evidence of alibi should not be disregarded unless there is a stronger evidence against it and relied on the cases of Yanor vs. State (1965) NMLR 337 at 341 to 342; and Adele vs. State (Supra) at page 290. He submitted that the Appellant on a preponderance of the evidence discharged the evidential burden of proof of the defence of alibi raised by him and that the Respondent did not succeed in demolishing that defence as was the case in Njovens & Ors vs. State (1973) NNLR 76. He also relied on the case of Adedeji vs. State (1971) ALL NLR 77 at 80.
Learned Counsel also submitted that minor differences between the statement of a witness to the police and his evidence in Court are unimportant, the inconsistency complained of must be one of substance on a fact in issue. Reliance was placed on the cases of Gabrial vs. State (1989) 5 NWLR (PT 122) 457 at 469; Daniel vs. State (1991) 8 NWLR (PT 212) 715 at 727. Ogoala vs. State (1991) 2 NWLR (PT 175) 509 at 526. Counsel submitted that the fact in issue or essential fact was whether the Appellant was indeed in his residence at the time the deceased was allegedly murdered. That whether or not he was peeling cassava has no bearing on the fact in issue which is his location at the material time. It is thus, submitted that the learned trial judge’s venture into what exactly the Appellant was doing at that time was immaterial, particularly when DW 2 corroborated his alibi. Learned Counsel thus urged the Court to hold that given the facts and circumstances of the case before the trial Court, the defence of alibi raised by the Appellant could have availed him and to resolve the issue in favour of the Appellant.
In her response, learned counsel for the Respondent, I. I. Amadi (Mrs.) submitted that the Appellant failed to sustain the defence of alibi in his favour at the lower court. She stated that it was the testimony of the Appellant at the Court below that at the material time in question, he was in his bedroom lying down after taking some drugs because he was indisposed. That he also testified that his wife was peeling cassava with other women. Learned Counsel referred to the statement of the Appellant to the police Exhibit “D” at page 51, lines 15 – 17 of the records to submit that the testimony of the Appellant at the Lower Court contradicts his extra judicial statement to the police on his where-about on the date and time of the incident. It is her view that conflicting statements are not relied upon by the Courts, and referred to the cases of Onubogu vs. The State (1974) 9 SC or (1974) ALL NLR (Reprint) 561. The State vs. Sadu (2001) FWLR (PT.67) 1034 at 1040; Gufwat vs. State (1994) 2 NWLR (PT.327) 163; and Kwagshir vs. State (1994) 2 NWLR (PT 328) 592 at 615. Learned Counsel submitted that where an accused person gave a testimony in Court different from what he stated in his extra judicial statement, the Court is bound to regard it as unreliable his testimony in Court and his extra judicial statement as not constituting evidence upon which the trial Court could act and argued that the trial Court was right to have disregarded the alibi of the Appellant based on the inconsistency in his oral testimony in Court and Exhibit “D”, his extra judicial statement to the police.
Learned Counsel further submitted that the Appellant in answer to a question during cross examination stated that within the period he was allegedly sleeping no body inclusive of his wife came into his room, and that this answer destroyed the alibi of the Appellant because the people mentioned will not be in a position to know whether he was actually in the house or not at the material time and that the Lower Court was right to have rejected the evidence of DW 2 Felix Amadi which sought to corroborate the alibi set up by the Appellant as lacking in merit. The Court was urged to so hold.
I. I. Amadi (Mrs.) for the Respondent also submitted that the Appellant was seen at the scene of crime by PW1 and that the Law is settled that where the presence of the accused is fixed at the scene of crime, the defence of alibi raised by the accused is demolished. Reliance was placed on the cases of Onyegbu vs. State (1998) 1 ACLR 386 at 396; Adekunle vs. State (2003) 1 ACLR 560 at 579; Muhammed vs. State (2011) ALL FWLR (PT 580) 1276 at 1290; and Afolalu vs. State and Afolalu vs. State (2010) ALL FWLR (PT 538) 812 at 838. It is thus submitted that the police was not bound to investigate the alibi raised by the Appellant. She also submitted that the defence of alibi of the Appellant must, from the evidence of the prosecution witnesses, fails in the light of overwhelming, credible and positive recognition and identification of the Appellant at the scene of crime by PW1. The Court was urged to resolve the issue in favour of the Respondent.
In his reply to the Respondent’s submission that where an accused person gave a testimony in Court different from what he stated in his extra judicial statement, the Court is bound to regard as unreliable his testimony in Court and his extra judicial statement as not constituting evidence upon which the trial Court could act, Mr. Wogu, Esq. for the Appellant submitted there is no inconsistency between the testimony of the Appellant and his extra judicial statement and that not even in cross-examination was the testimony of the Appellant impugned in anyway. He submitted that by Section 232 of the Evidence Act 2011, where a previous statement in writing in intended to contradict a witness, his attention must, be called to those parts of the writing which are to be used for the purpose of contradicting him and that it is on record that no part of the Appellant’s extra judicial statement was highlighted for this purpose or used by the prosecution to contradict the Appellant in the course of cross-examination.
Learned Counsel also stated that it is the law that once an accused has put forward his alibi, it is not for him to satisfy the Court on it, but for the prosecution to disprove it. That the accused does not assume that responsibility of establishing the alibi. He referred to Adedeji vs. The State (1971) 1 ALL NLR 75; He also referred to Haruna and Anor vs. Police (1971) 1 ALL NLR 1; and also Omogodo vs. State (1981) NSCC 119 at 128 to further submit that the fact that an accused person has told lies has never been accepted as proof of his guilt. The Court was urged to resolve the issue in favour of the Appellant.
In the instant case/ the Appellant in his statement to the police
Exhibit “D” stated that on the day the deceased died he was in his house peeling cassava tubers with the help of some women such as Regina Amadi at about 1830 hrs. That he did not see when the deceased, went to the house of Solomon. He equally testified in Court that, “I remember 17th July, 2003 at about 7-8pm, I was in my house, I had returned from the farm with my wife, we came back late from the farm. I was not feeling well so when I came back, I took my bath, drug and went to bed. lrly wife and other women were peeling the cassava.” He mentioned the other women as Regina Amadi and Franklin Nwokacha. The alibi raised by the Appellant was not investigated and was never the case of the Respondent that it investigated the said plea as required by law. The Investigating Police Officer was not called by the Respondent to give evidence of the outcome of any such investigation.
Alibi simply means elsewhere. Where an accused person pleaded alibi, it means that the accused was elsewhere other than the scene of the crime when the crime was committed. Once an accused puts up a defence of alibi, it is imperative that the defence must be investigated. If an accused raises a defence of alibi the onus is not on him to prove where he was at the time of the incident and or call evidence to support his defence of alibi. Once that defence is set up, it is for the police to investigate it properly because failure to do so could raise reasonable doubt in the mind of the trial Court and lead to quashing the conviction. See Onuchukwu vs. State (1977) 4 SC 1, Onafowokan vs. State (1987) 3 NWLR (PT 61) 538.

It settled that no burden is placed on an accused person to prove his alibi once he has given the particulars of his whereabouts early, which if considered with the case of the prosecution creates a reasonable doubt in the mind of the judge so as to entitle the accused person to an acquitted. The Supreme Court in Onuchukwu vs. State (Supra) at page 591, per Belgore. JSC (as he then was) restated the settled position of the law thus:
“The law on the issue of alibi is now clear. Once an alibi is unambiguously set up whereby the accused person states clearly where he was at the time of the commission of the crime in question, with persons who were with him at that place, or were aware of his presence there, well out the locus criminis, the alibi must be investigated” Eze vs. State (1976) 1 SC 125. To dismiss the alibi properly set up in this case with a wave of hand as “unreliable and I do not believe it”, the police investigator abandoned a monumental duty and this renders the alibi uncontradicted. In such a situation the accused person’s story must be believed and he will be entitled to discharge and acquitted.
Thus, once alibi is raised, the prosecution must investigate it to ascertain its veracity or otherwise. Failure to so investigate renders any conviction unsatisfactory as the case would not have been proved beyond reasonable doubt. Adedeji vs. State (1971) 1 ALL NCR 75; Nwosu vs. State 91986) 4 NWLR (PT.35) 438.
In the instant case, the Appellant at the earliest opportunity denied having any part to play in the crime and raised the alibi as to his whereabouts. Thus, the Police Investigator dismissed it by waive of hand as they never made it part of their investigation. It is the function of the Court to believe or disbelieve any evidence not the investigator. The position of the law is that no burden is placed on an accused person to prove his alibi once he was given the particulars of his whereabouts early. Where an alibi is set up as in this case the primary onus of establishing the guilt of the accused person is on the prosecution. It is only the evidential or secondary burden is on the Appellant to adduce some evidence of where he was at the material time.
As said earlier, the Appellant at the earliest opportunity gave the police reasonable information as to where he was and the persons with whom he was with at the time of the commission of the crime and this information was not investigated to confirm its veracity or otherwise. The police investigator left much to be desired. See Okosi vs. State (1989) 1 NWLR (PT 100) 642; Gachi vs. State (1965) NMLR 333.
The finding of the learned trial judge at page 88 paragraph 4 line 1 to 5 and page 89 paragraph 3 lines 1 to 2 of the record of appeal that;
“Before this Court, the accused claimed that on his return from the farm he took some drugs and went to bed while some women were peeling the cassava. In “Exhibit D” he stated that he was also peeling the cassava. The DW 2 emphasized that when he called on the accused his eyes were heavy with slumber. The DW 2 did not mention or observe any signs of indisposition on the part of the accused.
In all I disbelieve the evidence of the accused and reject that of the DW 2. I hold that the defence of alibi do not avail him.”
With respect to the learned trial judge, this finding is erroneous as it is contrary to the position of the law.
A plea of alibi is demolished only if the prosecution adduces sufficient evidence to fix the person at the scene of crime at the material time. In the instant case, there is no evidence reliable to fix the Appellant at the scene of crime. The evidence of PW1 and PW2 that they saw the Appellant at the scene of crime was contradictory. It thus cannot be said that the prosecution established the presence of the Appellant at the scene of crime. See Njovens vs. State (1973) 5 SC 17.
If DW 2 went to the house of the Appellant to wake him up around 9pm, after the incident, could he be the same person that PW1 said she saw hiding behind a mango tree when she answered the distress call from the decease? Also, if PW1 tried to grab him and he run away, could he have followed DW 2 to the house of PW1 immediately after the incident? What of the footsteps she heard running into the bush? These are questions that should agitate the mind of the learned trial judge. Perhaps if the Investigating Police Officer investigated this aspect of alibi, the truth would have been known. The police did not interview the wife of the Appellant and one Regina Amadi who were in the house peeling cassava with the Appellant before he took his drugs and went to bed to confirm or deny the assertion of the Appellant whether he actually went out at the material or he was in his room sleeping.
It is trite that minor differences between the statement of a witness to the police and his evidence in Court are unimportant, the inconsistency complained of must be of substance on a fact in issue. See Gabriel vs. State (1989) 5 NWLR (PT 122) 4753 at 469; Daniels vs. State (1991) 2 NWLR (PT 212) 715 at 728 and Ogoala vs. State (1991) 2 NWLR (PT 175) 509 at 526.

It is a cardinal principle of justice that conviction could only follow where the charge against an accused person has been prove beyond reasonable doubt. Throughout the web of criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the guilt of the accused person. Once there is reasonable doubt created by the evidence given, the accused is entitled to an acquittal. Accordingly, in the instant case, the doubt which manifested itself in the conflicting evidence of the prosecution witnesses must be resolved in favour of the Appellant.
Where a trial judge fails to adverts his mind to the evidence on record, the Court of Appeal is entitled to examine the evidence and make its own assessment provided that such exercise does not call for making decision on the witness’s credibility. In the instant case, it is pertinent for the Court of Appeal to re-evaluate the evidence of PW1 and PW2 in view of the conflicts in their evidence. I therefore hold that the serious conflicts particularly in the evidence of PW1 and PW2 and the failure of the prosecution to investigate the alibi, put forward by the Appellant must be resolved in favour of the Appellant. The courts have always held that where there is ambiguity, it ought to be resolved in favour of the accused person. See Valentine Adie vs. The State (1980) INLR 323; Adio vs. State (1979) 12 NSCC 51. This issue is also resolved in favour of the Appellant.
Having resolved the two issues in favour of the Appellant, the appeal succeeds as it has merit. It is hereby allowed. The judgment of the lower court delivered on the 21st day of July, 2009 convicting and sentencing the Appellant to death by hanging is hereby set aside. The Appellant is accordingly hereby discharged and acquitted.

JOHN INYANG OKORO, J.C.A.: My learned brother, UWANI MUSA ABBA AJI, JCA obliged me in advance a copy of the judgment she has just delivered and I agree with her that there is merit in this appeal and same ought to be allowed. I must say that the quality of evidence led by the prosecution at the court below is so weak and cannot sustain a charge of murder. More importantly, the failure of the prosecution to investigate the defence of alibi set up by the appellant weakens the more the case against the appellant. In KAMORU ALIMI ADIO vs. THB STATE (1986) 3 NWLR (Pt.31) 714, the Supreme Court held that when the defence of alibi is promptly and properly put up, failure on the part of the prosecution to investigate it may cast some doubt on the probability of the case for the prosecution. See also FATOYINBO vs. ATT. GEN. WESTERN NIGERIA (1966) WNLR 4; ESANGBEDO vs. STATE (1989) NWLR (Pt.113) 57; OBAKPOLOR vs. STATE (1991) I NWLR (Pt.165) 113; NWABUEZE vs. THE STATE (1988) 4 NWLR (Pt.86) 16.
It is my view that the failure of the prosecution to investigate the defence of alibi put up by the appellant, coupled with the weak evidence provided by PW1 and PW2 has done grave damage to the prosecution’s case. The doubt cast on the evidence of the prosecution, undoubtedly, has to be resolved in favour of the appellant. It is on this note that I agree that this appeal has merit. It is also allowed by me. The appellant is therefore discharged and acquitted.

PHILOMENA MBUA EKPE, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother UWANI MUSA ABBA AJl, JCA. I wish to add a few comments mainly by way of emphasis.
The Appellant was charged with the offence of murder of one Sunday Onuoha contrary to S.319(1) of the Criminal Code, Laws of Eastern Nigeria, 1963 as applicable to Imo State of Nigeria. The Appellant pleaded not guilty to the charge. The two issues raised and argued by the parties bordered on the following points:
1. Proof beyond reasonable doubt by prosecution.
2. The defence of alibi
It is well settled that to convict a person charged with murder under the criminal code, the prosecution must prove beyond reasonable doubt the following points:
(a) That the deceased died.
(b) That the death of the deceased was caused by the accused person.
(c) That the act or omission of the accused person was intentional with knowledge that death or grievous body harm was its probable consequence. See the following cases:
– OGUNDIYAN V. THE STATE (1991) 3 NWLR (Pt. 181) 519
– AKPAN V. THE STATE (1991) 3 NWLR (Pt. 182) 646
– OKPUTUOBIOBIODE & ORS V. THE STATE (1970) All NLR 36.
Also see OMINI V. THE STATE (1999) 12 NWLR (Pt. 630). On the issue of defence of alibi the law is that the defence of alibi when raised is to show that the Appellant was not at the scene of crime when it was committed. Where such a defence is raised by the defence and sufficient particulars provided, the prosecution had a duty to investigate it. See AKPAN V. THE STATE (1991) 3 NWLR (Pt. 182) 646.
My learned brother has dealt with the two issues of the great length and I adopt his reasoning and conclusions. I also agree that where there is ambiguity, it should be resolved in favour of the accused person This appeal therefore succeeds and is hereby allowed, The judgment of the lower court delivered on the 21st day of July 2009 convicting and sentencing the Appellant to death is hereby set aside.
The Appellant is accordingly discharged and acquitted.

Appearances

Sonny O. Wogu, Esq. with J. U. Emeka Chidozie (Mrs.)For Appellant

AND

I. I. Anradi (Mrs.) C. S. C., MOJ, Owerri,For Respondent