UCHE ODIAKA v. THE STATE
(2013)LCN/6488(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 5th day of November, 2013
CA/B/147/2010
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
UCHE ODIAKA Appellant(s)
AND
THE STATE Respondent(s)
RATIO
THE ONUS OF PROOF IN CRIMINAL TRIALS
In criminal trials, the onus of proof of an essential ingredient of the offence does not shift at any point from the prosecution. See Abdullahi v. The State (2008) 17 NWLR Pt. 1115 Pg. 203.
The general state of the law as stated by the Supreme Court is that where the cause of death is obvious, medical evidence ceases to be a practical necessity particularly in the case where the deceased died immediately from the voluntary act of the Appellant. See Ogbu v. The State (2007) 5 NWLR Pt. 1028 Pg. 635. In BEN V THE STATE (2006)16 NWLR PT 1006 PG 582, the Appellant was charged with murder and his conviction was upheld by the Supreme Court because there was uncontroverted evidence that he struck the deceased on the head with a big stick thereafter the deceased fell down and never regained consciousness until he died a few hours later. Those circumstances are different from this case where the deceased reported to his father, who in turn took him to the palace and they were on the way to the police station when P.W. 1 left the deceased whom he later found dead with a gun and a cutlass left by his side. PER OGUNWUMIJ, J.C.A.
WHETHER OR NOT WHERE A TRIAL JUDGE MISPLACES THE ONUS OF PROOF, THE JUDGEMENT MUST BE REVERSED
There is no doubt that where the trial judge misplaces the onus of proof, the judgment must be reversed. See Gilsod Ass. Ltd. v. Algon (2011), Akinkunmi v. Sodiq (1997) 8 NWLR (516) 277 at 291; Iheanacho v. Chigere (2004) 7 SC (11) 49 at 64. It is not for the accused person to suggest let alone prove an alternative cause of death. See EBONG V THE STATE (2012) ALL FWLR PT 633 PG 1945 AT 1968-1969. PER OGUNWUMIJ, J.C.A.
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Honourable Justice I.E Okogwu, Judge of the Delta State High Court, sitting at ISSELE-UKU, delivered on the 30/10/2009 wherein the Appellant was found guilty and convicted for the offence of murder.
The Appellant Uche Odiaka was arraigned before the trial court upon Information containing two counts to wit:
STATEMENT OF OFFENCE: COUNT I
Conspiracy to commit Murder punishable under Section 324 of the Criminal Code Cap 48 Vol. 11, Laws of The Defunct Bendel State of Nigeria 1976 as applicable to Delta State.
PARTICULARS OF OFFENCE
Uche Odiaka and others now at large on or about the 27th day of August, 2006 at Ezi village Issele-Uku Judicial Division conspired to commit Murder.
STATEMENT OF OFFENCE: COUNT II
Murder punishable under section 319(1) of the Criminal Code Cap 48 Vol. 11, Laws of the Defunct Bendel State of Nigeria 1976 as applicable to Delta State.
PARTICULARS OF OFFENCE
Uche Odiaka and others now at large on or about the 27th day of August, 2006 at Ezi village Issele-Uku Judicial Division murdered one Nnamdi Bayem Iwuenor.
The prosecution called 3 witnesses while the defence after the end of the case for the prosecution, made a no case submission, which the trial court over-ruled. The appellant thereafter testified for himself but called no witness. The three witnesses called by the prosecution were the father of the deceased, the palace secretary and a police inspector. The Appellant gave evidence in his own defence on Oath and called no witness.
In a considered Judgment the learned trial Judge found that the prosecution did not prove conspiracy but had established the case of Murder (count 11) against the Appellant beyond reasonable doubt and found the Appellant guilty of that charge and convicted him accordingly. The appellant not satisfied with the decision has appealed to this Court.
The Appellant filed a Notice of Appeal on the 20th day of January with three grounds of Appeal. The learned Counsel for the Appellant in the brief settled by Sir C.D.S Omon-Irabor which was filed on 18/10/2010 deemed filed on 24/4/2013 formulated three issues for determination. The issues read as follows:
1) Whether the Trial Judge was not in error in convicting the Appellant without ascertaining the actual cause of death and that the doubt raised as to the actual cause of death of the deceased would have been resolved in favour of the Appellant.
2) Whether the Trial Judge was not in error when he refused to consider the evidence of P.W.1 and the subsequent address of the State Counsel in establishing the actual cause of death as injury sustained from gunshot rather than the machete cut.
3) Whether the trial court was not supposed to look at the police report which forms part of the proof of evidence in the Court’s file before arriving at the final decision to convict the accused person.
The Respondent’s Counsel in the brief settled by Y.A Onwochei (Mrs) Senior State Counsel filed on 25/7/2012 deemed filed on 24/4/2013 formulated two issues for determination. The two issues read as follows:
1) Whether the learned Trial Judge was right when he convicted the Appellant based on the evidence before him at the trial of the case.
2) Whether the absence of the evidence of a medical officer in this case was fatal to the case of the Respondent.
I have recouched the issues for determination to better emphasize the complaints contained in the Notice of Appeal as follows:
1. Whether the prosecution proved that the Appellant caused the death of the deceased.
2. Whether the police report and the proof of evidence should have been considered by the Trial Court before the appellant was convicted.
3. Whether the learned trial judge was right in convicting the appellant as charged for the offence of murder.
ISSUE ONE
The learned Counsel for the Appellant contended that there was no evidence before the Court that the act of the accused, which was the injury sustained in the leg through a machete cut was the cause of death, rather the evidence of P.W.1 and his statement to the police, the police report and findings, point to the fact that the deceased died of a gunshot wound. He argued that the Trial Judge misdirected himself when He held against the evidence available to him that the deceased died of injury sustained from the machete cut in the cause of the struggle between the deceased and the accused. The learned Counsel to the Appellant maintained that since there was no medical report or a medical expert testimony as to the actual cause of death, the doubt created by the failure of the prosecution to adduce evidence as to the actual cause of death should be resolved in favour of the accused. He cited PATRICK OFORETE VS THE STATE (2009) 8 ACLR PAGE 369 at 373 RATIO 3 AND 4: FALAYI VS REX (2009) 8 ACLR PAGE 490 @ 493 RATIO 4.
The Learned Counsel for the Appellant concluded by arguing that there was doubt as to the cause of death of the deceased, since the prosecution did not lead evidence as to the actual cause of death and the evidence as to the cause of death adduced by the prosecution was not believed by the trial judge, the learned trial judge erred in law to find against available evidence and to have speculated and convicted the accused on his personal conjecture as to what caused the death of the deceased. He cited SULE AMADI V THE STATE (2003) ACLR PG 145 AT 152, ONAH V THE STATE (1988)1 ACLR PG 642 AT 644.
On this issue the Respondent’s Counsel submitted that the absence of the evidence of a medical officer is not fatal to the case of the prosecution, as it was not disputed that the victim was dead.
It was the contention of the Learned Counsel for the Respondent that there was no evidence before the Court where the prosecution had claimed that the deceased had bullet wounds on any part of his body. He further submitted that where there are other evidence as in this case, upon which the cause of death can be inferred, it is not vital to have resort to medical report, if the court can in the absence of a medical report properly infer the cause of death from the evidence and the circumstances of the case. He cited UYO VS AG BENDEL STATE (1986) 1 NWLR PT 17 PG 418. He further cited OGBA VS STATE (1992)8 NWLR PT 259 PG 255 at 269 PARAS D-E. He also cited AMUZA VS STATE (1986) 3 NWLR PT 30 PG 536, ADEKUNLE V THE STATE (2006) ALL FWLR PT 322 PG 1452 AT 1466.
The learned Counsel for the Respondent argued that there was no credible evidence that the deceased had gunshot wounds or that he was shot, and that the learned trial Judge did not find basis for accepting the argument of the Appellant that the deceased died from gunshot wounds. Therefore it cannot be a valid basis for contending that the Court speculated in coming to a conclusion. He also submitted that the facts as proved by the prosecution as to the cause of death can sufficiently be inferred to be the wound from the machete cut, it is immaterial that no medical officer was called by the prosecution. He cited ADETOLA V THE STATE (1992) 4 NWLR PT 235 PG 267 AT 275.
In the Appellant’s reply brief, counsel submitted that the issue, having regards to the circumstances of this case is not in relation to the absence of medical report or evidence but the absence of any evidence to confirm what caused the death of the deceased. The learned counsel further argued that there was serious doubt whether it was the first attack or subsequent attack that caused the death of the deceased, as the evidence of the medical doctor or a medical report after autopsy would have confirmed whether the deceased died as a result of excessive bleeding from the first attack or whether it was as a result of a gunshot wound. He cited STATE V OKPALA (2012) 3NWLR (PT 1287)388, TEGWNOR V STATE (2008) ALL FWLR (PT 424) PG.1484
At page 43 of the records of proceedings, the learned trial Judge while delivering the Judgment held thus:
“There is no doubt that the deceased died as a result of that injury. Evidence before the Court showed that he died shortly after he got injured and before he could get to the hospital. I agree with the submission of the State Counsel that it is not a sine qua non that there must be a Doctor’s evidence to prove the cause of death or the fact of death where there is sufficient evidence to show same. I am satisfied from all the circumstances in this case first that the accused deliberately cut the deceased with a machete and that he (deceased) died from the wounds. All the witnesses saw the machete cut on the deceased. Nobody saw any gunshot wounds. Therefore (sic) is no other probable cause of death of the deceased”
Let us look at the circumstances of this case to find out if the facts are as cut and dried as the learned trial Judge found them to be.
In his lordship’s summation of the evidence at page 37 of the records, his lordship stated thus as follows in relation to the evidence given by PW1, the father of the deceased:
“As the deceased could not walk P.W.1 left him waiting by the road side while he went to get a taxi. But by the time he came back he said he found the deceased dead and a cutlass and a gun were by his 2 sides. He said unknown persons had shot him dead while he was away.”
The learned trial judge had conceded that there was no eye witness evidence of exactly how the deceased was killed and he derived his conclusions of the cause of the deceased death from circumstantial evidence. The evidence of P.W.1 the father of the deceased was that the general believe was that the deceased had been shot dead by unknown persons. Even the prosecuting state counsel during address at Pg. 33 of the record, insisted that the Appellant be convicted on count 1 of the charge of conspiracy because he had come with others at large to shoot the deceased. The learned trial Judge while reviewing evidence in the judgment acknowledged this at page 39 of the record of appeal and stated as follows:
“She referred to the case of IKEMSON VS THE STATE (1989) 3 N.W.L.R PT. 110 @ PAGE 462 RATIO 24. Relating these principles to the case under consideration, she noted that the evidence of P.W1. showed there was a fight between the accused and the deceased, during which the accused had machete cuts and that he was subsequently killed by some boys whom P.W.1 could not identify. That from those circumstances the Court could infer that the accused conspired with some boys now at large to kill the deceased.”
The evidence by P.W.1 and P.W.3 is that the deceased when found dead was taken to a hospital called Adolo Clinic in Issele-Uku (page 20 of the record). There is no doubt that there is always the requirement as provided in the various State Laws that a Coroner’s report be obtained in any case of violent, sudden and unexplained deaths. I cannot agree with the learned trial Judge that there was conclusive proof of how the deceased met his end. The whole incident as told by P.W.1 (who was not an eye witness) does not lead conclusively to the conclusion that the deceased died as a result of the injuries he received by machete cuts from the appellant even if we conclude that the Appellant inflicted the injuries on the deceased with the purpose of causing death or grievous bodily harm.
There is no doubt that the prosecution was obliged to prove in this case:
a) That the deceased died
b) That his death resulted from the act or omission of the accused now appellant
c) That the act of the accused now appellant was intentional with knowledge that grievous bodily harm was a probable cause.
In criminal trials, the onus of proof of an essential ingredient of the offence does not shift at any point from the prosecution. See Abdullahi v. The State (2008) 17 NWLR Pt. 1115 Pg. 203.
The general state of the law as stated by the Supreme Court is that where the cause of death is obvious, medical evidence ceases to be a practical necessity particularly in the case where the deceased died immediately from the voluntary act of the Appellant. See Ogbu v. The State (2007) 5 NWLR Pt. 1028 Pg. 635. In BEN V THE STATE (2006)16 NWLR PT 1006 PG 582, the Appellant was charged with murder and his conviction was upheld by the Supreme Court because there was uncontroverted evidence that he struck the deceased on the head with a big stick thereafter the deceased fell down and never regained consciousness until he died a few hours later. Those circumstances are different from this case where the deceased reported to his father, who in turn took him to the palace and they were on the way to the police station when P.W. 1 left the deceased whom he later found dead with a gun and a cutlass left by his side.
How can the learned trial Judge arrive at the conclusion that a medical report of the cause of death was un-necessary in view of the evidence given by P.W.1 that the deceased was shot dead by unknown persons while he was away? Just as the Judge could not speculate on whether the deceased was shot, evidence to that effect not having been led, his lordship cannot refuse to believe that the father of the deceased who saw the dead body of his son and who believed his son died of a gunshot wound had no basis for that conclusion.
Also I agree with the learned Counsel for the Appellant that in the circumstances of this case, there was doubt as to the actual cause of death of the deceased. Any doubt must be resolved in favour of the accused. See Kalu v. Nigerian Army (2010) 4 NWLR Pg. 433 at 440-441. Also as the prosecution did not lead evidence by medical report or expert medical opinion which would be cogent and direct to prove that the deceased died of the machete wounds, and the trial Judge did not believe the father of the deceased that the deceased died by gunshot, the learned trial Judge with the greatest respect erred in law by convicting the Appellant on his speculations as to the cause of death.
Perhaps the error of the learned trial Judge emanated from his lordship’s wrongful shift of burden from the prosecution to the Appellant. At page 42 of the record the learned trial Judge stated in his judgment thus:
“As I said in my ruling at the No Case-Submission stage, the accused has a duty to explain the circumstances under which the deceased sustained the injury/injuries found on him.”
There is no doubt that where the trial judge misplaces the onus of proof, the judgment must be reversed. See Gilsod Ass. Ltd. v. Algon (2011), Akinkunmi v. Sodiq (1997) 8 NWLR (516) 277 at 291; Iheanacho v. Chigere (2004) 7 SC (11) 49 at 64. It is not for the accused person to suggest let alone prove an alternative cause of death. See EBONG V THE STATE (2012) ALL FWLR PT 633 PG 1945 AT 1968-1969.I am of the humble but firm view that having regard to the fact that the prosecution made the case at the trial that the accused macheted the deceased and later came back with others to shoot the deceased, there cannot be certainty as to the cause of death and whether the appellant is solely responsible for the cause of death. This doubt must be resolved in favour of the appellant. In the circumstances, the first issue is resolved in favour of the Appellant.
ISSUES TWO
On this issue, Learned Appellant’s counsel argued that the trial Judge erred in Law for not considering the pieces of evidence recorded in the proof of evidence especially the statement of one Amadi Sebastian who vividly explained how the deceased was shot by some group of persons at the road junction, as he said he could identify the assassins if seen. He never said it was the accused person for he gave account of how the accused person injured the deceased with a cutlass in a fight earlier in the day. He also submitted that the trial Judge erred in law when he refused to look into the police report, particularly the police findings. He cited JOHN AGBO VS THE STATE (2006) 5 LRCNLL P 86 AT 3 R. 11.
In the brief settled by the Respondent’s Counsel, no response was made at all to this issue even though it was vociferously argued by the Appellant. Let me say right off that the proof of evidence is a document served on the defence and to the Court containing the names of witnesses the prosecution want to call and a phrasy of what they intend to say. Every accused in a trial by Information is entitled to the proof of evidence so that he can prepare a defence to the case the prosecution intends to make against him. It does not constitute evidence. The Court before whom it is filed cannot use any of its contents in aid of the prosecution or the defence. It is only evidence on oath given by a witness in open Court that is relevant and admissible in a Criminal trial. Such evidence on Oath may lay a foundation for the admission of relevant documents like extra-judicial statements, confessional statements, doctor’s report, extra judicial witness’ statements etc.
Extra judicial witness’s statements can be found in the proof of evidence and the police case file. It is the duty of any party or Counsel who wants to use the extra judicial statement of a witness to lay foundation through the witness to ensure that the said statement is admitted as an exhibit through the witness. Immediately the defence counsel knew that the Police were unwilling or unable to call the Amadi Sebastian who gave a statement to the Police that he witnessed the shooting of the deceased by unknown gun men, it was the duty of the defence to call the said Amadi Sebastian as a witness for the defence notwithstanding the fact that he had been listed as a prosecution witness. Defence counsel should make a vigorous defence of their clients rather than a lackluster one.
It would have been wrong in law or procedure for the learned trial Judge to use any statement in the case file suo motu. How could the Court have tested the statements for their veracity if the makers were not put on Oath to confirm the statement and be subjected to cross-examination?
It is my humble and firm view that the argument of the learned Appellant Counsel on this issue is completely misconceived. This issue is resolved against the Appellant.
ISSUE THREE
On this issue, learned Appellant’s counsel complained that the evidence of P.W 3, the police officer who was not the investigating police officer in charge of the case should not have been believed by the learned trial Judge. Counsel also complained about the admissibility of Exhibit A and the fact that the learned trial Judge placed too much probative value on the Exhibit given the fact that the Appellant denied making it. Counsel argued that given the questionable previous custody of the denied statement, the learned trial Judge should not have relied on it to convict the Appellant. He reminded us of the fact that the prosecution at the material point the statement was to be produced, could not find it in the file only for it to mysteriously turn up later. He argued that with the antecedent of the disappearance and appearance of the statement and the inability of P.W 3 to identify the handwriting of the recorder correctly, the learned trial Judge was wrong to rely on it to convict the Appellant. He complained that it was wrong for the learned trial Judge to turn himself into a handwriting expert and by his own physical examination of Exhibit A and the Appellant’s handwriting to determine that the statement was written by the Appellant. He also argued that the learned trial Judge was wrong to have held that the minor discrepancy between the evidence of the Appellant and Exhibit A is a material contradiction to make the Appellant unreliable and to disregard same.
The learned Respondent’s Counsel argued that the evidence before the Court and as stated in the judgment of the trial Court at pages 36-38 of the record of Appeal is mainly circumstantial evidence. He submitted that in a charge of murder, murder can be proved by direct or circumstantial evidence. ADEKUNLE VS STATE (2006) ALL FWLR PT 322 PAGE 1452 AT 1466 PARAS A-E, IDIOK VS STATE (2008) ALL FWLR PT 421 PAGE 797 AT 808. The learned Respondent’s Counsel further submitted that the prosecution had discharged the duty placed upon it in a charge of murder to prove that the death of the deceased was caused by the accused. He also referred to the case of ADETOLA VS STATE (1992) 4 NWLR PT 235 PAGE 267 AT 275 PARAS G-H.
He further submitted that although witnesses can lie, circumstances cannot lie. In this case circumstantial evidence affords better proof beyond reasonable doubt. It points to the one and only irresistible conclusion that the accused is the one responsible for the death of the deceased.
He submitted that the trial Judge rightly convicted the Appellant based on circumstantial evidence that the actual cause of death of the deceased was the machete cut on the deceased leg. He stated that the trial Judge evaluated the evidence and ascribed the right probative value to the evidence to come to the finding that the Appellant deliberately cut the deceased with a machete and that the deceased died from those wounds. All the witnesses saw the machete cut on the deceased. Nobody saw any gunshot wounds. He urged that since there was no other probable cause of the death of the deceased, the trial judge was right on the basis of that to find the Appellant guilty of the offence as charged.
There is no doubt that a thorough reading of the records show the lack of proper investigation of this case by the police. The evidence of P.W3 was worthless as it lacked any particulars to aid the Court in arriving at any findings of fact. The learned trial judge then relied on Exhibit A and the evidence of the appellant to convict him.
In the Judgment the learned trial Judge held thus at page 42-43 of the records:
“I have gone through his statement -Exhibit A and his evidence in Court. I note that there is a material contradiction between the two. One thing is however clear that there was a scuffle at the material time between the Accused and the Deceased. However in his statement in Court the accused claimed that unknown to him the deceased had a cutlass tied round his waist and that while he was holding the deceased to prevent him from beating one of the boys, they fell into a pit and the cutlass tied to the deceased waist gave the deceased the wound found on his leg. Whereas in his statement to the police he stated that there was a fight between him and the deceased. That during the fight the deceased cut him with a cutlass but he did not sustain any injury because he had juju on his body. That it was that same cutlass that wounded the deceased during the fight. When cross-examined by the prosecution the accused tried to explain the contradiction. He said that what he said in Exhibit “A” was a mistake. That his evidence in Court is the correct version of what happened. Even it is so, it is not easy to imagine how a cutlass tied round the waist of the deceased can give him (deceased) an injury on his leg. That story is incredible to say the least. On the whole, in view of that contradiction which I hold to be very material I dismiss his evidence as unreliable. The Court is not in a position to pick and choose. The accused is not a witness of truth. The impression he tried to give the Court that what happened to the deceased was an accident is untenable.
It is clear from the above that the learned trial Judge convicted the Appellant because he did not believe the evidence of the Appellant (the only eye witness) with regards to how the deceased received the machete cut on his leg. In the first instance, I cannot find any major contradiction between the extra-judicial statement of the Appellant i.e. Exhibit A and his evidence on oath in Court. I have read Exhibit A. In Exhibit A, the appellant admitted that he was engaged in a fight with the deceased and they struggled with the cutlass after the deceased attacked him for defending Sunday Kido. He said during the course of the struggle, the deceased was wounded by the cutlass on the leg. On oath, he swore that while he was fighting with the deceased, the cutlass in possession of the deceased cut the deceased after they fell into a pit during the fight. Both statements showed that the deceased provoked the fight and he was the one in possession of a cutlass. Instead of looking for the imaginary contradictions in the statement and evidence of the Appellant, the learned trial Judge should have considered the defence open to the Appellant. I am persuaded that the defence of provocation which led to a sudden fight was properly articulated by the Appellant both immediately after the incident and later on oath. The peculiarity of this case is that there is no other eye witness called by either side to rebut the Exhibit A the extra judicial statement of the appellant where he expressly raised the defence of accident. He also raised the defence of accident in his evidence on oath before the Court. In the former he said the cutlass cut the deceased while both of them were dragging it. On oath he said during their fight both of them fell into a ditch and the deceased got his injuries thereby. In the face of no other evidence we have no right to speculate otherwise. An accident is the result of an unwilling act, an event which occurs without the fault of the person alleged to have caused it. Oghor v. The State (1990) 3 NWLR Pt. 139 Pg. 484. Lets even assume we do not want to be credulous, and we have to believe that there was a spontaneous fight which was provoked by the deceased, is the defence of self defence not also open to the appellant? I believe so. Even where the appellant did not specifically or expressly raise the defence of self defence, it must be considered if it is a possible defence which is supported by the record. Shalla v. State (2004) 8 NWLR Pt. 875 Pg. 396. Both Exhibit A and the statement of the appellant on oath make the defence one which is cognizable on the facts available to the court. The appellant from the word go claimed that he was attacked by the deceased with a cutlass. There is no other evidence to the contrary.
In view of my opinion in respect of Issue one, and my view that there are defences open to the appellant, the appellant has to be acquitted of the offence as charged.
Judgment in Suit No. HCI/5c/2007 delivered by the High Court of Delta State is hereby set aside. A verdict of acquittal is entered and the appellant is hereby discharged.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I was privileged to have read, before now, the judgment just delivered by my brother the Hon. Justice Ogunwumiju, JCA. Having equally perused the briefs of argument of the learned counsel to the respective parties vis-Ã -vis the record of appeal, I cannot but concur with the reasoning and conclusion reached in the said judgment to the effect that the instant appeal is meritorious.
Hence, I hereby adopt the said reasoning and conclusion as mine and accordingly allow the appeal, set aside the judgment of the Delta State High Court Issele-Ukwu Judicial Division, delivered on 30/10/09 in charged No. HCI/5C/2007. The conviction and sentence padded upon the appellant are hereby quashed. Consequently, the Appellant is hereby discharged and acquitted.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead judgment prepared by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA. His lordship has painstakingly and incisively too, dealt with the pertinent issues that call for determination in the appeal and I am in complete agreement with the exposition of law, reasoning and conclusions in the lead judgment. I have noting to add to the judgment and also adopt the lucid lead judgment as mine.
Accordingly, I too, find the instant appeal to be meritorious and allow the same. The judgment of the lower court delivered on 30/10/2009 convicting and sentencing the Appellant to death by hanging for the offence of murder, is hereby set aside. In its stead, a verdict of acquittal is entered and the Appellant discharged.
Appearances
Ayo AsalaFor Appellant
AND
Mr. Enenmo O.F., D.D.P.P., Delta State with him Y.E. Onochei SSCFor Respondent
