IYERE OJEABULU & ORS v. THE STATE
(2013)LCN/6652(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of December, 2013
CA/B/317C/2010
RATIO
ESSENCE OF AN OMNIBUS GROUND OF APPEAL
The complaint raised by an omnibus ground of appeal deals essentially with evaluation of evidence and only questions the correctness of the inferences, findings or conclusions reached or arrived at by the court in the light of the totality of evidence adduced before it. See: IGIDI v. IGBA (1999) 70 LRCN 1852; and ISIEKWE v. STATE (1999) 9 NWLR (Pt. 617) 43. Per AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
1. IYERE OJEABULU
2. ABBEY MATTHEW
3. MORIAWO ABBEY Appellant(s)
AND
THE STATE Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the leading Judgment): This appeal is against the judgment delivered on 19/7/2010 by the High Court of Justice, Edo State of Nigeria holden in Benin City (hereafter simply referred to as “the lower court”) presided over by Hon. Justice J. I. Acha (hereafter simply referred to as “the learned trial Judge”). The Appellants were jointly tried before the lower court on a two Count Information for the offence of conspiracy to murder and the substantive offence of murder and the lower court found each of them guilty of the offences and sentenced them as appropriate.
Hearing in the case opened on 10/12/2007 and was concluded on 26/4/2010 and the judgment appealed against delivered on 19/7/2010. The prosecution fielded 7 witnesses in the proof of its case; while each of the Appellants testified in his own behalf.
None of them called any other witness. The Appellants being aggrieved with their convictions and sentences passed by the lower court, each filed separate Notices of Appeal. The sole ground of appeal in each Notice of Appeal is the omnibus ground to wit: “That the verdict or decision is unwarranted, unreasonable and cannot be supported having regard to the evidence adduced”.
In accordance with the current Rules of this Court, the Appellants and the Respondent filed and exchanged Briefs of Argument. Appellants’ Brief of Argument dated is 13/12/2010 and filed on 17/12/2010 but deemed to have been properly filed and served on 28/11/2011. Appellants’ Reply Brief of Argument dated 31/10/2013 was filed on 4/11/2013. Both Briefs of Argument were settled by Emmanuel Oboh Esq. The Brief of Argument of the Respondent dated 20/3/2013 and filed on 10/4/2013 but deemed to have been properly filed and served on 18/10/2013, was settled by Mrs. V. U. Adeleye (Assist. Director of Public Prosecutions (ADPP), Ministry of Justice, Edo State). The appeal was entertained on 20/11/2013 and learned lead counsel for the Appellants – E. I. Oboh adopted and relied on the Briefs of Argument of the Appellants, in urging this Court to allow the appeal; while learned Solicitor-General, Edo State (S.G.) leading three other Law Officers adopted and relied on the Respondent’s Brief of Argument, in urging this Court to dismiss the appeal.
Having regard to the sole ground of appeal in their Notices of Appeal the Appellants, in my considered view rightly formulated a lone Issue for the determination of the appeal. The Issue reads thus: “Whether the trial court improperly appraised and evaluated the evidence before it, thereby improperly convicting the 1st, 2nd and 3rd Appellants for murder”.
The Respondent too formulated a lone Issue for the determination of the appeal. The Issue reads thus: –
“Whether having regard to the totality of the evidence led at the trial and the circumstances of this case, the prosecution could be said to have discharged the burden of proving beyond reasonable doubt, the guilt of the appellants to warrant their conviction and sentence”.
The Issues as formulated by the parties are the same in purport, though the Issue as formulated by the Respondent is better couched. I must however observe that it is basically the correctness of their conviction for the offence of murder that the Appellants are questioning having regard to the Issue which they formulated above. Accordingly, the sole Issue for determination in the appeal is whether the prosecution (i.e. Respondent) established the charges particularly that of murder against each of the Appellants beyond reasonable doubt having regard to the evidence before the court.
Dwelling on the Issue, the Appellants set out the ingredients of the offence of murder and stated that the sequence of enquiry should be (1) whether the deceased had died; (2) whether the accused person caused the death of the deceased; and (3) whether the act of the accused person was intentional with knowledge that death or grievous bodily harm is its probable consequence. The case of Tegwonor v. State (2008) All FWLR (Pt. 424) 184 at 1510 was cited regarding the elements of murder which the prosecution must prove beyond reasonable doubt. The Appellants conceded that the death of the deceased has been proved in the instant case. That what is crucial for consideration is whether there is any criminal link between the death of the deceased Chief Samuel Okhuelegbe, and any or all of the Appellants. In other words, whether it was proved at the trial that the Appellants caused the death of the deceased? It is the stance of the Appellants that the answer is a capital NO.
Stating to the effect that it was clear from the record that the lower court found the evidence of PW3 to have fixed the Appellants at the scene of the crime, they expressed the need for the scrutiny of the record in order to see the role played by the said witness during investigation and trial. The Appellants referred to the police reports in the record and which they said formed part of the case of the prosecution and submitted that the police reports are material evidence which the prosecution was bound to tender at the trial. That the failure to tender the police reports should be construed against the prosecution, vide Section 149 (d) of the Evidence Act. The case of Onubogu v. State (1974) 9 NSCC 358, was also cited in aid of the submission. The Appellants further submitted to the effect that in a murder trial such as the one they faced, the court has a duty to consider (a) all the defences raised by the evidence whether the accused person specifically put up such defences or not, and (b) any defences raised by an accused no matter how stupid or weak it may appear. Therefore that the lower court had a duty to have considered all possible defences arising from the proofs of evidence, regardless of whether the accused capitalized on them or not. That the police reports at pages 4 and 41 – 42 of the records of appeal should not have been ignored by the lower court. That the said reports showed that PW3 was not a witness of truth and it was improper for the lower court to have accorded credibility to his testimony. That the failure of prosecution to tender the reports as Exhibits cannot be a lawful basis for not considering them and the lower court ought to have invoked Section 149 (d) of the Evidence Act and construed the withholding of these pieces of material evidence in favour of the Appellants. The cases Maiyaki v. State (2008) All FWLR (Pt. 419) 500; and Ahmed v. State (1999) 5 SCNJ 223, amongst others were cited in aid.
Arguing that in the event proofs of evidence are irrelevant (without so conceding) since they were not tendered at the trial, the Appellants submitted that the lower court still had a duty to evaluate the evidence of PW3 properly and that it did not do this. In this regard the Appellants referred to the extra-judicial statement of PW3 at pages 47-48 of the record and his evidence at pages 72-73 of the records. The Appellants submitted to the effect that as PW3 admitted in his evidence that he lived at Eko Igene, which is another community from Ebulen, it was perverse of the lower court to have treated the evidence of the witness as a direct and positive proof that the Appellants killed the deceased. Firstly, this is because the said evidence was unbelievable and worthless in the light of the fact that PW3 did not testify that he knew or had any acquaintance with the 2nd and 3rd Appellants previously so as to be able to recognize them among the mob that beat the deceased. Secondly, that the witness testified that he was hiding in a bush about 150 feet away without explaining why he had to hide in a bush so far away or how he was in a vantage position to have seen the mob and to have recognised the Appellants in the midst of the mob from such a hiding place. It is the stance of the Appellants that the perception of a man hiding in a bush 150 feet away must be dim. That such a man was unlikely to see clearly or hear clearly what was happening some 150 feet away in the centre of a mob comprising about 150 youths. That in the absence of such explanation the testimony of PW3 ought to be doubted and rejected as improbable. Thirdly, the Appellants submitted to the effect that the evidence of PW3 that “Among those beating the deceased were 2nd and 3rd appellants”, cannot rightly be appraised as direct and positive proof that the 2nd and 3rd Appellants did anything wrong. That the statement by itself was ambiguous; because it did not prove that the 2nd and 3rd Appellants beat the deceased or matcheted the deceased or touched the deceased. That PW 3 did not state what role the 2nd and 3rd Appellants played. Thus, that it was perverse of the lower court to have found that PW3 gave evidence of the role played by each of the Appellants persons. That the finding of fact in this regard is the more perverse as it is obvious that PW3 contradicted himself severally.
Aside from these, it is also the stance of the Appellants that the evidence of PW3 is in conflict with that of PW2 and PW4 who were at the scene when the mob was alleged to have been beating the deceased as well as the policemen and bike riders. One contradictions in the evidence of PW3 is the fact that in one breath he claimed to be on ground with the youths and the police and was following the mob from behind, and at another time he claimed to have hidden in a bush 150 feet away. The Appellants submitted that the contradiction was material to the prosecution’s case since PW3’s evidence is one of recognition or identification of the Appellants at the crime scene and as members of the mob. The Appellants submitted that that before evidence of recognition or identification of an accused person at a crime scene is accepted as credible, it must pass the test of reasonable doubt. In this regard, that such evidence must be free from contradictions, and it must condescend on particulars of recognition and be made promptly. The case of Abdullahi v. State (2008) All FWLR (Pt. 432) 1047 at 1056 was cited in aid. The Appellants submitted that the evidence of PW3 is worthless and incredible in so far as he purported to have recognized them at the crime scene. That yet he made no statement to the police throughout the course of investigation to show that he recognized or identified them (Appellants). That even in the witness box he could not condescend upon the particulars of their (Appellants) recognition or identification at the crime scene by testifying as to what clothes they wore, or whether they were armed, or whether they were in the centre of the mob or at the periphery. This Court was urged to hold that it was a perverse finding for the lower court to have treated PW3’s evidence as credible and as fixing the Appellants with the commission of the crime. That on this ground alone, the appeal ought to succeed.
Another weak point in the evidence of PW3 according to the Appellants is that it was not corroborated by PW2 or PW4 whose presence at the crime scene is undoubted. That neither PW2 nor PW4 gave evidence suggesting that the 1st Appellant joined the mob to urge them to beat the deceased. Again, that there was no evidence of identification of the 2nd and 3rd Appellants by PW2 or PW4 at the crime scene. That reasonable doubt has been created inasmuch as PW2 and PW4 did not give evidence of identification regarding the 2nd and 3rd Appellants being at the crime scene. That the doubt must equally, be resolved in favour of the Appellants.
The Appellants also submitted that the unresolved contradiction between the evidence of PW2 and PW4 vis-a-vis PW1 as to who took Chief Okhuelegbe (the deceased) to which hospital and from where, was fatal to the instant case. The Appellants stated that the lower court appeared to persist in the errors that fixed the Appellants with the commission of the offence when he held at page 164 of the record to the effect that the prosecution gave account of how the Appellants seized the deceased and took him to the house of 1st Appellant where he was found with several matchet cuts on his body and with broken legs. The Appellants submitted that the finding is completely perverse as it did not emanate from evidence.
It is also the stance of the Appellants that the failure to call one Honourable Anetor left a big gap in the evidence of PWs 1, 2, 3 and 4. That the contradictory stories that have emerged from the evidence adduced by the prosecution only proved that there was no nexus between the Appellants and the death of the deceased. Another perverse finding of the lower court identified by the Appellants relates to the application of the doctrine of last seen. It is the stance of the Appellants that none of PWs 2, 3 or 4 testified that the 1st Appellant was the last person seen with the deceased. That the lower court appeared to have manufactured evidence against the Appellants and this is improper and perverse.
The Appellants claimed that the 2nd Appellant denied the charge preferred against him and also denied being present when the deceased fought with mob. He denied slapping the deceased. He raised an alibi that he was in his house when the mob action took place. He denied telling the police that one Akhere used cutlass on deceased’s leg. He was consistent both in his evidence-in-chief and under cross-examination that he was innocent of the charge. The Appellants submitted that Exhibit P-3 which the lower court relied upon in its judgment did not qualify as a confessional statement upon which the court could convict the 2nd Appellant. That there was no form of evidence from PW2 and PW4, identifying the 2nd Appellant at the crime scene where the deceased was beaten until he fell to the ground. That the alibi raised by the 2nd Appellant was not investigated or controverted by the prosecution. Exhibit P-3 was not recorded as a confessional statement and was not tendered as a confessional statement either. That even if it were, the 2nd Appellant had retracted it by his evidence in court, and the lower court cannot act on it without subjecting it to the test laid down for determining the weight to be attached to a retracted confession by the Supreme Court in Akinmoju v. The State (2000) FWLR (Pt. 11) 1893 at 1913. That in any event, the lower court was not certain on what to do with Exhibit P-3. That in one breath it held it to be irrelevant and in another breath it was held to be a confession. That the situation created a doubt in the case of the prosecution and this ought to have been resolved in favour of the 2nd Appellant.
With reference to the 3rd Appellants, the Appellants submitted that he was 47 years as at 2006 and was not a youth by any definition. That as it was clear from the evidence adduced by the prosecution that it was a mob of youths that attacked the deceased; the lower court ought to have discerned that the 3rd Appellant was thereby excluded from the mob. Particularly, as the only evidence against the 3rd Appellant at page 72 of the record was from the discreditable PW3. This is more so the 3rd Appellant raised a defence of alibi in Exhibit P-4.
Dwelling on whether the act of the Appellants was intentional with knowledge that death or grievous bodily harm is its probable consequence, they (Appellants) submitted that the prosecution did not prove any act on the part of the 1st Appellant which he committed intentionally with knowledge that death or grievous bodily harm was its probable consequence. That the evidence of PWs 2 and 4 did not establish such act. That on a proper evaluation of the evidence of PWs 2 and 4, the 1st Appellant was a victim of the mob attack because he was forcefully taken by the mob and away from the other captives. That the conduct of the mob was against his will. That PW2 and PW4 who were present at the scene did not testify that the 1st Appellant joined the mob. That PW2 was with the deceased up to the time he fell to the ground as a result of mob beating. He neither saw nor heard the 1st Appellant urging the mob on. Thus, the evidence of PW3 that 1st Appellant was with the mob urging them to beat the deceased because of past chieftaincy disputes should be rejected. That from the evidence of PWs 1, 2, 4 and 6, chieftaincy dispute was not the subject of the community work for which the youths had gathered. That the evidence of the 1st Appellant in court testifying to his innocence was not discredited and since the evidence of PW3 was not corroborated in any way, it ought to be rejected and the findings of fact made by the lower court based on the evidence of PW3 be set aside.
As against the 2nd Appellant, the Appellants equally submitted that the prosecution failed to establish any act which he committed intentionally with knowledge that death or grievous bodily harm was its probable consequence. It was repeated that the evidence of PW3 against 2nd Appellant was ambiguous. That the reliance on Exhibit P-3 without any corroborating evidence is unsustainable in law because 2nd Appellant denied the charge raised an alibi and maintained his innocence throughout the trial. That the prosecution has a duty to investigate every alibi raised by the Appellants and disprove the same, without which the alibi must be accepted. That in Exhibit P-4 it was alleged that the 2nd Appellant mentioned one Akhere as attacking the deceased with matchet and cutting his legs. That since the cause of death as disclosed in the evidence of PW5 is from matchets, knives or axe, it was the duty of prosecution to have called the said Akhere to deny the alleged statement of the 2nd Appellant and the case of The State v. Ajie (2000) FWLR (Pt. 16) 2831 at page 2844, was cited in aid.
As against the 3rd Appellants it is also the submission of the Appellants that the prosecution did not prove any act which he committed intentionally with knowledge that death or grievous bodily harm was its probable consequence. That the only evidence against the 3rd Appellant was the one line statement by PW3 in the witness box.
In rounding up the Appellants submitted that the prosecution failed to establish a causal link between the Appellants and the death of the deceased. It has not been shown that the Appellants were members of the mob that fought with or attacked the deceased before his death. This Court was urged to set aside the perverse findings of fact made against the Appellants by the lower court and discharge and acquit the Appellants.
In apparent confirmation of the observation I had earlier made that the Appellants having regard to the Issue they formulated are not questioning the correctness of their respective convictions for the offence of conspiracy, it was only paragraph 3.1 on page 19 of their Brief of Argument they devoted to the matter. In this regard, they simply stated to the effect that it was only PW3 that gave evidence relating to the offence. That PW3 claimed to have overheard two persons discussing that they would attack the deceased. That PW3 never mentioned the Appellants. That as it had already been shown that the testimony of PW3 should not be accorded any credibility; the prosecution in the circumstance cannot be said to have led any evidence of conspiracy against the Appellants and the findings of fact by the lower court regarding the charge must be set aside.
Dwelling on the Issue for determination of the appeal, the Respondent submitted that it successfully proved beyond reasonable doubt as required by Section 135 of the Evidence Act, 2011, the charges of conspiracy to murder and the murder of Chief Samuel Okhuelegbe (deceased) against each of the three Appellants. The case of Onafowokan v. State (1987) SCJN 328; and Afolalu v. State (2010) 6-7 MJSC 187, were cited in aid of what proof beyond reasonable doubt portends.
Dwelling on the offence of conspiracy extensively, the Respondent submitted that the offence was proved against the Appellants beyond reasonable doubt on the evidence before the lower court particularly the evidence of PW3 and that the denial in court by the Appellants is not worthy of belief as it was in violent contradiction with Exhibit P-3.
A litany of cases on conspiracy was cited in the Respondent’s Brief of Argument. It is the stance of the Respondent that the lower court properly evaluated the evidence before it in coming to the conclusion that conspiracy had been proved against the Appellants.
Dwelling on the offence of murder, the Respondent not only set out the ingredients of the offence but submitted that the said offence was proved against the Appellants. It copiously referred to evidence of its witnesses in aid of its stance. A host of relevant cases were also cited.
It is the stance of the Respondent that the defence of alibi does not arise in the instant case since the Appellants had been fixed to the scene of the crime by the prosecution and they have conceded it.
Regarding the 1st Appellant the Respondent submitted that it was clear from the evidence led at the trial that he aided the youths in the murder of the deceased by urging them on. The Respondent submitted that a person who is present at the commission of an offence and who encourages the principal offender to commit the offence is liable for the offence committed by the principal offender by virtue of section 7 of the Criminal Code and cited Nwachukwu v. State (2002) 11 MJSC 43 in aid. That aside from this is the evidence that the deceased was found almost at the point of death in front of the compound of the 1st Appellant.
Dwelling on the submissions of the Appellants relating to the improper evaluation of the evidence of PWs 2 and 3, the Respondent submitted that the lower court clearly reproduced the evidence at the trial and apportioned probative value to the evidence led where necessary.
Dwelling on the various attacks on the evidence of PW3 the Respondent submitted that the attacks were unwarranted. Firstly, because the statements upon which an aspect of the attack was based were not tendered in evidence and that this Court cannot look at them to verify the claim of the Appellants. The Respondent submitted that the only use to which a statement allegedly made by a witness can be put, is to contradict the witness and that this is at the point of cross examination and the decision of this Court in Hausa v. State (1991) CLR 10 was cited in aid. The Respondent also submitted that it has no duty to tender the statements of prosecution witnesses. That it is the duty of the defence to so do if it wishes to put them to use. The Respondents made the observation that through the length and breadth of the records, there is nothing to show that the defence confronted PW3 in the course of cross-examination with a view to tendering the statements to contradict him. On the submission that the lower court had a duty to consider all possible defence disclosed in the proof of evidence in favour of an accused person whether or not the accused raised them, the Respondent submitted that the Appellants were in clear misapprehension about the use of proofs of evidence. That the purpose of the proofs of evidence is to show a prima facie case for the purpose of proving the grounds for the application of the Attorney-General to file an Information against an accused person and the cases of Ikomi v. State (1986) 3 NWLR (Pt. 28) 340; and Abacha v. State (2002) 4 MJSC 1 were cited in aid. Therefore that proofs of evidence is not to be taken as evidence before the court unless any part of it is tendered and admitted in evidence as the need arises.
Dwelling on the admissibility of Exhibit P-3 on the ground that it was not tendered as a confessional statement, the Respondent submitted that such a contention was most absurd. That a confessional statement is not one simply because it is called such at the point of tendering. That it is the content that determines whether or not it is a confessional statement and the decision of this Court in the case of Dele v. State (2011) 1 NWLR (Pt. 1229) 505 was cited in aid. The Respondent submitted that Exhibit P-3 having been admitted without objection, it is enough to ground a conviction as far as the 2nd Appellant is concerned.
Dwelling on the contradiction said to have riddled the prosecution’s case, the Respondent submitted that the contradiction are not borne out of the records of the proceedings at the lower court. That in any case the perceived contradictions relating to the hospital the deceased was taken to and who took him there are immaterial. That the fact remained that the deceased is dead and that the acts of the Appellants led to his death and that the Appellants intended to cause his death or grievous bodily harm. That in any event the so called contradictions are at best minor inconsistencies not material to warrant the resolution of any doubt in favour of the Appellants by this Court as they do not touch on the ingredients of the offences for which the Appellants were tried and convicted and the case of Effia v. State (1999) 8 NWLR (Pt. 613) was cited in aid.
It is the stance of the Respondent that the contention that the lower court did not evaluate the evidence properly is not borne out from the records. That a careful perusal of the judgment would show that the lower court was very meticulous in evaluating the entire evidence before it. That the Appellants have not placed before this Court any justifiable reason to enable it re-evaluate the evidence led at the trial. That the evaluation of evidence, is principally, that of the trial court who saw and heard the witnesses. That it is only where a trial court has erred in evaluating the facts found by it, that an appellate court can re-examine the whole facts and come to an independent decision as the court of trial and the case of Ebenehi v. State (2009) 2-3 MJSC, 138 was cited in aid.
Dwelling on the stance of the Respondent that there was circumstantial evidence against the 1st Appellant in their Reply Brief of Argument, the Appellants submitted that the stance is misconceived and intended to mislead the Court. This is because the lower court held at page 152 of the record that it was relying on the direct evidence of PW3 and rejected the circumstantial evidence in the testimonies of PWs 2, 4, 5, 6 and 7. That as the Respondent did not file a cross-appeal or respondent’s notice it is not open to the it (Respondent) to canvass the argument that there was circumstantial evidence against the Appellant or any one of them.
The Appellants also argued that the Respondent was wrong regarding its submissions on proofs of evidence and what constitutes evidence before the court. Cases considered relevant were cited.
The omnibus ground of appeal in a criminal appeal as the Appellants have predicated the instant appeal on admits or assumes that the evidence evaluated or weighed by the court had been properly admitted. This being the case, the Appellants cannot be heard to complain directly or surreptitiously, regarding the admission in evidence of their extra-judicial statements. The complaint raised by an omnibus ground of appeal deals essentially with evaluation of evidence and only questions the correctness of the inferences, findings or conclusions reached or arrived at by the court in the light of the totality of evidence adduced before it. See: IGIDI v. IGBA (1999) 70 LRCN 1852; and ISIEKWE v. STATE (1999) 9 NWLR (Pt. 617) 43. Indeed the Supreme Court per Oputa, JSC; dwelled on the omnibus ground of appeal in the case of BAKARE v. THE STATE (1987) NSCC 267. Re-produced hereunder is what his lordship said: –
“The first ground of appeal complained that:
1. “The decision of the Court of Appeal is unreasonable having regard to the evidence before the trial court”.
This ground deals with, the facts of the case, the evidence led on both sides, the evaluation of that evidence, the ascription of probative value to such evidence, the credibility of witnesses who testified, the consideration of all credible evidence and the logical conclusion both of fact and of law to be drawn from the totality of the evidence led. All these are matters squarely within the exclusive competence of the trial judge who saw, heard and believed. Understandably, therefore, an appellate Court is naturally very reluctant to reverse on ground 1 above the findings of a trial judge who had the peculiar advantage of seeing the witnesses, of watching their demeanour and of hearing them give evidence. Therefore, again, when the questions involved are purely those of fact an appellate court will not interfere unless the decision of the trial judge is shown to be perverse and not the result of a proper exercise of judicial discretion (to believe or disbelieve witnesses) or that there is no evidence at all to support a particular crucial finding or that the trial court made wrong deductions or drew wrong inferences from admitted or established facts. There is such a myriad of authorities to support the above propositions that it is unnecessary to repeat them here. What is necessary is to look critically at the evidence before the trial Court to see whether the learned trial judge erred in his handling of the facts and whether it is true that his decision “is unreasonable having regard to the evidence before him.”The Appellants herein as earlier stated were tried jointly on a two Count Information. In the first Count they were charged with the offence of conspiracy to murder punishable under Section 324 of the Criminal Code Cap. 48, Vol. 11 Laws of the Bendel State of Nigeria now applicable to Edo State. In the particulars of offence in relation to the first Count the Appellants were alleged to have conspired with others now at large on or about 7/10/2006 at Ebulen village, Uzea to commit a felony to wit: murder. In the second Count they were charged with the offence of murder punishable under Section 319(1) of the Criminal Code (supra). The particulars of offence in relation to the second Count alleged that the Appellants on or about 7/10/2006 at Ebulen village in Uzea murdered one Samuel Okhuelegbe. (See pages 107 – 108 of the record).
The judgment of the lower court spans pages 107 – 170 of the record. The lower court in its judgment highlighted or reviewed the evidence of each of the witnesses that testified in the case pages 108 – 135 of the record. From pages 135 – 147 of the record the lower court also highlighted the submissions of learned counsel to the parties in their respective addresses. In embarking on the evaluation of the evidence adduced before it in relation to the offence of murder, the lower court was glaringly guided by the Supreme Court decision in Uguru v. The State regarding the ingredients or elements of the offence (i.e. murder) that must be proved beyond reasonable doubt, by the prosecution, in order to sustain the offence. The lower court in its judgment glaringly needed not to have embarked on an elaborate consideration of the fact of the death of Samuel Okhuelegbe in the light of the fact that the Appellants conceded the same in their address and also in the light of the evidence of PW5 – the medical doctor the prosecution fielded to furnish evidence as to the cause of death of the deceased. (See pages 150 – 151 of the record).
The lower court dwelled on the other two ingredients of the offence of murder together because of their inter relationship. The ingredients are (i) whether the prosecution proved that the act or omission of the Appellants caused the death of the deceased; and (ii) whether the act or omission was intentional with knowledge that death or grievous bodily harm was its probable consequence. In evaluating the evidence adduced by the prosecution the lower court appreciated the fact that the prosecution tried to rely on both direct and circumstantial evidence in the proof of its case. The lower court clearly appreciated that the evidence of PW1 – the son of the deceased went to no purpose save that it showed that the witness knew that his deceased father and the 1st Appellant had disputes over land and rulership of the area. It is however clear from the judgment that the lower court never based its decision on any fact remotely related to motive on the part of the Appellants or any of them. The lower court also considered the evidence of PW2 relevant to the extent that it established the facts that the witness was assigned to investigate a petition written by the deceased against the 1st Appellant and some other persons; that PW2 went with PW4 and the deceased to arrest the 1st Appellant and some other persons; that it was while the 1st Appellant was being taken to Uromi that the youths of the community attacked them, beating them up, and rescued and took away the 1st Appellant; that the witness later returned and met the deceased in front of the house of the 1st Appellant lying on his back and facing the sun with matchet cuts on his body and his legs broken; and that the deceased died in the presence of the witness. Dwelling on the evidence of PW3, at pages 153 – the lower court stated as follows:-
“The testimony of the 3rd witness for the prosecution, Okoromi Igene, appears to me to be the evidence that fixed the 3 (Three) Accused persons directly to the death of the deceased. He, unlike P.W.2, P.W.4, P.W.5 and P.W.6 and P.W.7 stated in evidence that he is part of the community and knows the people accused inclusive very well. P.W.3 gave evidence of how the youths blocked the road and the role played by each Accused person. He stated that while 1st Accused was urging the attackers of the deceased to continue, 2nd and 3rd accused were seen by him hitting deceased.
P.W.3 was positive in his evidence of the role played by each Accused person. The defence Counsel in his address urged on the Court to reject the evidence of P.W.3 on the ground that he is a tainted witness being a relation of the deceased.
The defence Counsel alleged that P.W.3 has an interest to serve. His assertion is based on the fact that P.W.3 is a relation of the deceased. However, defence Counsel in the course of cross-examination of P.W.3 did not do more than asking him that he is a relation of deceased and that he is not happy that the deceased is dead. With due deference to defence counsel, the mere fact that a witness is a relation of a deceased does not make his testimony unreliable for the court to reject. The important enquiring (sic) is whether the witness or his testimony is credible.
I have carefully examined Part 9 of the Evidence Act and I was unable to find any suggestion therein that a person is not a competent witness for reason of his relationship with deceased. What is the position of the authorities on this point? In the case of Mbenu v. State Supra referred to by defence Counsel Nnamani, J.S.C. stated at page 626 of the report thus:-
“……………………………….”
In the instant case, there is no evidence before me as to the purpose P.W.3 is out to serve other than an attempt by defence Counsel to show that he is a relation of deceased. In the case of Orisakwe v. State (2004) 12 NWLR 258, Uwais CJN had this to say on the point at page 291 of the report thus:-
“……………………………….”
The status of the evidence of a blood relation in a murder trial was finally settled by the apex court in the case of Nkebisi & Anor v. State
“……………………………….”In the instant case, I watched P.W.3 in the witness box, defence Counsel was unable to shake him during cross-examination and in the circumstance of this case, the evidence of P.W.2 and P.W.4 in whose custody deceased was forcefully taken away, I believe and I accept the evidence of P.W. 3 as credible and I shall act upon it.”
It is the evidence of PW3 which the lower court not only declared as credible but also that it will act upon that the Appellants have variously attacked as has been highlighted in the review of their submissions.
The Appellants in the bid to discredit the evidence of PW3 have cast all sorts of aspersion or accusations on the lower court and the prosecution but never saw themselves as having not done anything wrong in the conduct of their case.
It would appear that the Appellants do not appreciate the fact that just as the court has the duty to adjudicate in a matter upon the evidence before it in the instant case, and for the prosecution to place before the lower court evidence in the proof of its case, they (Appellants) too own themselves the duty of placing before the court evidence that should make the court not to act on the evidence adduced by the prosecution or the evidence of any particular witness called by the prosecution. In other words, the court being the arbiter in the matter brought against an accused person (such as the Appellants) is not by law permitted to hijack, take over or champion the case of the parties and must not be seen to be conducting the defence of an accused person for him for whatever reason; just as the court must not be seen to be championing the case of the prosecution more than the prosecution in order to convict. Every player in the citadel of justice as epitomized by the courts particularly the superior courts of record in this country have specific roles to play in the dispensation of justice (be it criminal or civil) as put in place by the law or by practice, and such practice where unwritten must not run foil of the principles of natural justice as recognised in the extant Constitution of the Federal Republic of Nigeria. See generally Section 36(4)(a) and (b) and (5) – (12) of the Constitution.
In this regard, I cannot but also refer to paragraph 382 on page 131 of The Criminal Law and Procedure of the Southern States of Nigeria by T. Akinola Aguda where the learned jurist stated thus:-
“Disclosure to defence
Where a witness has given evidence for the prosecution, counsel should be prepared, on request, to allow the defence to see any previous statements made by the witness with a view to cross-examination on them: R. v. Adebanjo (1935) 2 WACA. 315, 327, following R. v. Clarke (1930) 22 Cr. App. R. 58. Where the prosecution have taken a statement from a person who can give material evidence but decides not to call him as a witness they are under a duty to make that person available as witness for the defence, but they are not under the further duty of supplying the defence with a copy of the statement which they have taken…”Before the lower court, it was the original case file that the Appellants requested for and the lower court did not see the relevance for this. (See page 156 of the record). The Appellants have not called into their aid any law applicable within the territorial jurisdiction of the venue of their trial that provides for their entitlement to the original case file. It is not the case of the Appellants that pages 3 – 62 of the record were not available to them at the trial. Indeed, it is the content of some of the pages in question (i.e. police reports) that the Appellants are now relying on, in arguing that PW3 was elsewhere at the time of the occurrence of the events in respect of which he testified. The position now being maintained by the Appellants in their Brief of Argument in attacking the evidence of PW3, in my considered view shows that they know very well that perhaps the only thing that can rob the eye witness account of PW3 of credibility; is to introduce some doubt regarding his whereabouts at the time of the occurrence of the events he claimed to have witnessed; as well as when the conversation he claimed to have heard took place. This they clearly failed to do having regard to the evidence before the lower court. The police reports now relied upon by the Appellants having not been placed before the lower court by the Appellants for any purpose could not have been expected to weigh on the mind of the lower court in its evaluation of the evidence of PW3. Also the smattering effort to build on the fact that PW3 stated that he was in the bush go to naught as PW3 ought to have been thoroughly cross-examined to show the impossibility of his being able to see what he testified about clearly from the bush in which he claimed to have hidden.
It is my considered view that all that Appellants are now trying to do having regard to the various fronts on which they are attacking the evidence of PW3 is furnishing evidence which was available at trial but not placed before the lower court to now challenge evidence on record. The law clearly does not allow for this.
I have scrutinized the judgment of the lower court painstakingly, and I cannot but say that having accepted the evidence of PW3 as credible, and having also properly invoked Section 8 of the Criminal Code, the said court could not have properly arrived at any other conclusion save that the act of the Appellants caused the death of the deceased and that the act of the Appellants in this regard was intentional with knowledge that death or grievous bodily harm was its probable consequence. Surely, it cannot be successfully argued that a person who instigated/urged a mob armed with matchets and other dangerous weapons to attack a person, by so doing was just out to use such a mob to chastise the person involved.
The position of the law regarding criminal liability as captured in the case of BAKARE v. THE STATE (supra) per Oputa, JSC; is as follows:-
“…. From the particulars of error/misdirection (supporting this ground of appeal) which were further elaborated in the Brief, it is obvious that there is here a thorough misconception of the requirement that the prosecution should prove its case beyond reasonable doubt.
Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability. As Denning, J. (as he then was) observed in Miller v. Minister of Pensions (1947) 2 All. E.R. 373:
‘The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence – of course it is possible but not in the least probable the case is proved beyond reasonable doubt’.
…. Also it has to be noted that there is no burden on the prosecution to prove its case beyond all doubt. No. The burden is to prove its case beyond reasonable doubt with emphasis on reasonable. Not all doubts are reasonable. Reasonable doubt will automatically exclude unreasonable doubt, fanciful doubt, imaginary doubt and speculative doubt – a doubt not borne out by the facts and surrounding circumstances of the case.
Another sense in which the expression “Proof beyond Reasonable Doubt” is used refers to the shifting of the onus of proof as stipulated by Section 137(1) Evidence Act Cap 62 of 1958:-
“137 (1) If the commission of a crime by a party to any proceeding is directly in issue… it must be proved beyond reasonable doubt”.
But if the prosecution proves the commission of a crime beyond reasonable doubt then the burden of proving reasonable doubt is shifted onto the accused – see Section 137(3) of Cap 62 of 1958. What does this subsection mean in relation to the case now on appeal? It means this. At the close of the prosecution case the Court had heard 9 witnesses testified. If the prosecution witnesses were believed and there was nothing urged in defence, no fair minded jury can return any verdict except that of guilty. In other words the prosecution established this case beyond reasonable doubt. The onus then shifted to the defence to adduce evidence capable of creating some reasonable doubt in the mind of the trial Judge. The primary onus of establishing the guilt of the Appellant was still on the prosecution and this does and did not shift. What does shift is the secondary onus or the onus of adducing some evidence which may render the prosecution case improbable and therefore unlikely to be true and thereby create a reasonable doubt – R v. Harry Lazarus Lobell (1957) 41 C.R. App. R. 100 at p.104 per Goddard L.C.J.
…. Evidence that is not accepted cannot possibly create a doubt in the mind of a fair minded jury. If the defence account of the incident is disbelieved then that is the end of the story and there will then be no evidence on which to consider the existence of a reasonable doubt. The Court of Appeal was right in holding that the case was proved beyond reasonable doubt. Ground 2 of the grounds of appeal therefore fails.”The position holds good till today.
The Appellants in my considered view have woefully failed to show that the lower court was wrong in its evaluation of the evidence of any of the witnesses fielded by the prosecution or that there was any material inconsistency in the evidence adduced before it, in relation to any of the ingredients or elements of the offences they were charged with. Similarly, the Appellants have not shown in any manner that the lower court made wrong deductions and/or findings from the evidence before it or that the court wrongly applied the law to the facts established by the credible evidence it acted upon. In the circumstances, there is absolutely no basis upon which this Court can interfere with the judgment of the lower court regarding the Appellants.
In the final analysis, I therefore find the appeal to be lacking in merit. It is hereby dismissed. The convictions of the Appellants for the offences they were charged before the lower court and sentences passed on each of them by the said court in its judgment delivered on 19/7/2010, are affirmed.
MOHAMMAD MUSA SAULAWA, J.C.A.: I concur with the reasoning and conclusion reached in the judgment just delivered by my learned brother, A. O. Lokulo-Sodipe, J.C.A., to the conclusive effect that the instant appeal is lacking in merits. Hence, the appeal is hereby dismissed. Consequently, the conviction and sentences passed thereupon the Appellants by the High Court of Edo State, Benin Judicial Division, on 19/7/2010, are hereby affirmed by me.
TOM SHAIBU YAKUBU, J.C.A.: I read before today, the draft of the judgment prepared and just delivered by my Lord, A. O. LOKULO-SODIPE, J.C.A. I am in total agreement with the lucid reasoning of his Lordship in resolving the sole issue for determination in the appeal against the appellants.
The appeal has no onions as it is devoid of merits. I also dismiss it. The judgment of J. I. Acha, J., on case No. HCU/2c/07 delivered on 17th July, 2010 is accordingly, affirmed by me.
The appellants, each have dates to keep with the hangman!
Appearances
For Appellant
AND
For Respondent
