MATHEW NWALU v. THE STATE (2013)

MATHEW NWALU v. THE STATE

(2013)LCN/6686(CA)

In The Court of Appeal of Nigeria

On Monday, the 23rd day of December, 2013

CA/E/207C/2009

RATIO

WHETHER IT IS PRIMARY DUTY OF THE TRIAL JUDGE TO EVALUATE EVIDENCE

As regards the attitude of appellate court regarding evaluation of evidence, the position of the law is that it is the duty of the trial judge to evaluate the evidence and to make primary findings of fact. This duty, unless it is shown not to have been done according to well laid down principles of law an appeal court cannot interfere with such findings. See Iriri v. Erhubobor (1991) 2 NWLR (Pt. 173) 252, Igago v. The State (1999) 14 NWLR (Pt. 637) 1, (1999) 10 – 12 S.C. 84 and Onuota v. The State (1998) 5 NWLR (Pt. 548). Per ADZIRA GANA MSHELIA, J.C.A.

WORDS AND PHRASES: THE DOCTRINE OF LAST SEEN

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

MATHEW NWALU Appellant(s)

AND

THE STATE Respondent(s)

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): The appellant was charged on one count charge in the High Court of Justice Enugu State, holden at Enugu as follows:-
Statement of offence
Murder -contrary to Section 274(1) of the Criminal Code, Vol.1 Laws of Anambra State of Nigeria 1986, applicable to Enugu State.
Particulars of offence
Mathew Nwalu, on the 8th day of October, 1996 at Ituku along Enugu-Agwu Federal High Way in the Enugu Judicial Division murdered Professor Ferdinand Ukah.

The appellant pleaded not guilty to the charge. The prosecution’s case was that on the 8th day of October 1996,the appellant and the deceased were travelling from Enugu to Mgbowo when they allegedly had a fatal accident which claimed the life of the deceased, Prof. Ferdinand Ukah. According to the prosecution, the alleged accident was stage managed by the appellant and that investigations show that the appellant murdered the deceased and then made it look like an accident. The prosecution called seven witnesses in proof of its case.

The appellant gave sworn evidence in his own defence and called no other witness. Appellant had claimed that the incident that resulted in the death of the deceased was an accident in which the Mercedes car model 250 somersaulted occasioning the death of the deceased.
The learned trial judge after evaluating the evidence and carefully considering the address of counsel, found the appellant guilty of the offence of murder charge and convicted him. At page 166 of the record, the learned trial judge Onovo J. observed and found:
“There is abundant evidence that the accused was the person who was last seen with the deceased alive. They both left Eddy Records Enugu in the same car. The accused drove the car while the deceased sat as a passenger and they journeyed out of town and joined the highway. In less than an hour, the deceased is found with injuries incompatible with an accident. Although no person saw the accused deliver the fatal blow or nay blow at all, on the deceased, the above facts in my opinion, prove the complicity of the accused person in the unlawful killing of the deceased, Prof. Ferdinand Ukah, with the precision of mathematics. See Okaroh Michael v. The State (1990) 1 NWLR (Pt. 34) at p.48. See Safiu Amusa V. The State (1987) 4 S.C. 99 and Lateef Adeniji v. The State (2001) 13 NWLR (Pt. 730) 175.
I therefore find the accused person guilty of murder as charged.”

Aggrieved with decision, appellant then appealed to this court vide his Notice and Grounds of Appeal filed on 14.12.2001 containing one original ground of appeal. The appellant sought and obtained leave of the court and filed additional grounds of appeal. For ease of reference the grounds shorn of particulars are set out hereunder:-
“Ground 1
The learned trial judge erred in law in convicting the accused solely on circumstantial evidence which was neither equivocal, positive nor compelling and consequently could lead irresistibly to a conviction of murder.
Ground 2
The learned trial judge erred in law by his failure to resolve the conflicts and discrepancies in favour of the accused by denying him the benefit of doubt.
Ground 3
The learned trial Judge erred in law in shifting the burden of proof to the accused person to prove his innocence rather than requesting the prosecution to discharge the onus of proof beyond reasonable doubt as imposed by law.
Ground 4
The trial Judge erred in Law when the court before his evaluation of facts or evidence, before him as to whether the incident of 8/10/96 was “accident or unlawful killing” held or concluded ab initio that Prosecution proved its case and thereafter called upon the accused to prove his innocence contrary to S.138 of the Evidence Act 2004.
Ground 5.”
The judgment cannot be supported having regard to the evidence. The facts of this case reveal that this was a case of motor accident in which the accused driving the deceased in his personal car got involved in a road accident in which the deceased, the owner of the saloon car and the only passenger,died. There was no specific act caused by the accused that led to the death of the deceased except that he was the driver of the car when the road accident occurred in which the deceased lost his life.

Briefs of argument were filed and exchanged by parties. At the hearing of the appeal, the court was satisfied that appellant’s counsel Dr. E.E.J. Okereke Esq. was duly served with hearing notice and so the appellant’s brief dated 11/7/11 and filed on 13.7.11 was deemed argued pursuant to order 18 Rule 9(4) of the Court of Appeal Rules, 2011. Mr. Udeichi Esq., also adopted respondent’s brief of argument dated 4.09.12 and filed on 8.10.13 and urged the court to dismiss the appeal.

The appellant in his brief of argument dated 11.07.2011 and filed on 13.07.2011 formulated three issues for the determination of this court. The issues are:-
1. Was the court right to refuse to consider the case as a motor traffic accident instead of a case of murder based on circumstantial evidence?
2. Was it proper for the court to shift the burden of proof to the accused person to prove his innocence rather than requesting the prosecution to discharge the onus of proof beyond reasonable doubt as imposed by law?
3. Whether it was proper in law for the trial court to have concluded that the prosecution proved its case before evaluation of evidence or facts before him as to whether the accident of 8/10/96 was an accident or unlawful killing and thereafter his prior conclusion or holden that the prosecution proved the case to now call upon the accused to prove his innocence.

The respondent’s brief of argument dated 4.09.2012 and filed on 8.10.2013 contained two issues for the determination of this court. The issues are:-
(a) Whether the event that led to the death of Prof. Ferdinand Ukah on the 8th day of October 1996 along Enugu-Port Harcourt Express Way at Ituku/Ozalla was a fatal motor accident.
(b) Whether there was sufficient circumstantial evidence upon which the appellant was convicted by the lower court.

Before I proceed to resolve the issues raised, I wish to place it on record that the appellant’s reply brief dated 23.10.13 and filed on same date was not in the court’s file on the 21.10.13 when the appellants main brief of argument was deemed argued. As observed earlier, appellant’s counsel though served, failed to appear in court or explain his absence though aware of the hearing date. The court was not in a position to know whether appellant intended to file a reply brief or not. Be that as it may, since it is evident that the reply brief was filed within time, I will in the interest of justice and moreso being a criminal matter consider the said brief as part of the brief deemed argued. I do not think respondent will be prejudiced, since there is no right of reply. I have examined the issues formulated by learned counsel.

I will adopt the issues in the appellant’s brief of argument for the treatment of this appeal and will treat them together for convenience as they are all related.
In proffering argument, learned counsel for the appellant submitted that the evidence of the prosecution witnesses including the accused provided sufficient evidence for the court to consider the incident as a traffic offence yet, the court woefully failed to consider this as a possibility. Reference was made to the testimony of PW1. Pw1 also admitted that nobody told him if any one saw the accused use any weapon on the deceased and either did any person at the scene told him that he witnessed the accused person use any object on the deceased. Reference was made to Exhibit A the medical report.

Learned counsel submitted that the trial judge failed to advert his mind to the doubt, uncertainty and ambiguity raised by PW1 in the concluding part of his evidence “but in medicine anything is possible”, which casts doubt and uncertainty on the first arm of his evidence. That the court ought to have resolved the doubt and contradiction as a co-existing circumstance which weakened the case of the prosecution as to negative the issue of murder.

It was contended that PW1’s evidence “but in medicine anything is possible ought to have warned the trial judge as to the uncertainty and doubt in the first arm or opening arm of PW1’s evidence that “there is a lot of discrepancies between the ghastly nature of the injury, and the damage I saw in the Mercedes Benz Car…..” That the evidence of PW2 confirmed Exhibit (J)” the sketching of the accident scene” and gives credence to the accused persons’ defence that he was driving and after some distance he suddenly saw a pot hole on the road and he then applied the car brakes quickly and tried to swerve the pot hole then the front tyre burst and he lost control of the vehicle which summersaulted and rested on the back at central reservation area dividing the two lanes of expressway.

Learned counsel submitted that the court while considering the issue of “accident” or “Unlawful killing” never considered or adverted his mind to Exhibit ‘B’. the Vehicle Inspection Officer’s Report and Exhibit J, the sketch map of accident scene showing two skid marks of the vehicle veering off from the road at the scene of incident or considered the above facts or evidence of Pw2 referring to the incident of 8/10/96 in issue as a motor accident.
Learned counsel further submitted that from the evidence of PW3, the guilt of the accused is based on suspicion. It is trite that suspicion no matter how grave cannot amount to proof that the appellant committed the offence for which he was charged. Reliance was placed on Aigbadion v. The State (2001) 2 ACLR 48 ration 9 at 64. That as far as the testimony of PW4 is concerned, what he witnessed was an accident.
PW6 also stated under cross examination that he took photographs of a motor accident. Counsel further submitted PW7 (IPO) stated in his evidence in chief hat he investigated the case involving accused and on 10/10/96 transferred case of fatal motor accident to State Motor Traffic Division, Enugu Police Station. The contention of the appellant is that PW7 is not a truthful witness and he covered facts favourable to the accused.

Learned counsel submitted that if the trial court had evaluated the evidence before him on the issue of motor accident, the court would have resolved the issue in favour of the accused which evidence are co-existing circumstances and facts to negative the incident of 8/10/96 as that of murder but motor accident. That the appellant raised the defence of motor accident but the court totally ignored it and made no resolution as to whether a motor accident was tenable but chose to treat the case entirely as murder based on circumstantial evidence. Counsel urged the court to discharge and acquit the appellant since prosecution has failed to prove that it was the act of the appellant that caused the death of the deceased.

While arguing issue 2, learned counsel contended that in a murder charge and in all criminal charge, the evidence relied upon to prove the charge may be direct or circumstantial. The bottom line is that whether it is direct or circumstantial, such evidence that is adduced must establish the guilt of the accused person beyond reasonable doubt. Counsel enumerated the essential ingredients which prosecution is required to prove beyond reasonable doubt. Reliance was placed on Okeke v. The State (1992) 2 NWLR (Pt. 590) 246 and Ahmed v. The State (2001) 18 NWLR (Pt. 746) 622.
It was submitted that from the evidence of the prosecution witnesses there was no eye witness who saw or witnessed the accused kill the deceased. That the nexus between the act of the accused and the death of the deceased was not established for the court to secure conviction in the circumstances, the cause of death by the accused must be proved he argued. See Dre Kada v. The State (1991) 11 SCNJ 19.

Learned counsel further contended that where the evidence of either the prosecution or the defence gives rise to reasonable doubt, the accused must be discharged. See Edet Ekpe v. The State (1994) 12 SCNJ 131 and Manshep Mamson v. The State (1993) 6 SCNJ 55. That the basis of the conviction of the accused was based on circumstantial evidence. It is trite law that circumstantial evidence may ground a conviction where it is unequivocal, positive and point irresistibly to the guilt of the accused. Reliance was placed on Oladejo v. The State (1987) 3 NWLR (Pt. 61) 419 and Chime Ijiofor v. The State (2001) 4 SCNJ 86 and Ogba v.The State (1992) 2 NWLR (Pt. 12) 236. It was also argued that the fact that deceased was last seen in company of the accused is not sufficient to conclude that deceased was killed by the accused. Reliance was placed on Okeke v. The State (1992) 2 NWLR (Pt. 590) 246 at 275 paras B-D. That at best the evidence put forward by the prosecution in this case is based on suspicion. That the law is clear, suspicion no matter how grave it may be cannot ground a conviction of accused person. Reliance was placed on Aheel v. The State (2001) 18 NWLR (Pt. 746) 622 at 650 paras A and Onyenankeya v. The State (1964) 1 NMLR 34. That once doubt is created in the mind of the court, the doubt should be resolved in favour of the accused.
The complaint of the appellant under issue 3 is that when the learned trial judge started to evaluate facts or evidence before him as to whether the incident in issue was accident or unlawful killing, came to the conclusion that the prosecution proved its case and thereafter called upon the accused to prove his innocence. Counsel contended that in a criminal trial the onus lies throughout upon the prosecution to establish the guilt of the accused beyond reasonable doubt. That accused never admitted committing the offence charged but has continuously maintained that Prof. Ukah died as a result of the motor accident which deceased and himself were involved in. Learned counsel submitted that it was wrong for the trial court to pick and choose parts of the statement of PW1. Counsel contended that the trial judge failed or ignored to advert his mind to the doubts and uncertainty, equivocation of the second arm of PW1’s reply that “but in medicine anything is possible” which ought to have warned the trial judge as to the uncertainty and doubts regarding the 1st arm of his evidence at page 66 of the record. That the learned trial judge convicted the accused by relying on circumstantial evidence which failed to meet the requirements laid out by law. The evidence put forward by the prosecution in this case is based on suspicion but the law is clear as crystal that no matter how grave suspicion may be, it cannot ground a conviction of the accused person. Reliance was placed on Ahmed v. The State (2001) 18 NWLR and Onyenankeya v. The State (1964) 1 NMLR 14.

Learned counsel argued that where doubt is created in the mind of a court as to the guilt of an accused, the only option left with the court is to resolve the doubt in favour of the accused. He urged the court to resolve the doubt in favour of the accused and discharge and acquit the accused person of the charge, conviction and sentence. Having raised the defence of Motor accident it is the duty of the prosecution to rebut it.
In response, learned counsel for the respondent while arguing issue l, referred to appellant’s statements made to the police and admitted as Exhibits ‘E’, ‘F’, ‘G’, ‘H’. Learned counsel posed a question as to which of the testimonies should the court believe. Learned counsel urged the court to hold that the differences in the evidence of the appellant in court and his extra judicial statements are material contradiction and urged the court to so hold. Reliance placed on Ahmed v. Yakubu (2009) 6 NWLR (Pt. 1138) @, 515; Agbo v. The State (2006) 6 NWLR (Pt.977) 545; Aderemi v. The State (1975) 9 – 11SC 115: Stephen v. The State 1986 5 NWLR (Pt. 46) 798, Oladejo v. The State (1987) 3 NWLR (Pt. 61) 419 and Vongo v. COP (1990) 5 NWLR (Pt. 148) 103 at 121. Counsel also relied on the testimony of PW1 and submitted that the injuries he saw on the head of the deceased could only be inflicted either by an axe, a heavy matchet, a sharp and heavy metal or the edge of a concrete wall. It was submitted that there were a lot of discrepancies between the ghastly nature of the injuries he saw on the head of the deceased and the damage he saw in the Mercedes car and he stood his grounds under cross-examination. Learned counsel also referred to the testimony of PW2 the Deputy Director in the Road Traffic Department of Ministry of Works who examined the accident vehicle after the accident. The summary of PW2’s views was that there was no accident at all let alone a summersault and that the dents on the vehicle were calculated.

Counsel urged the court to believe the evidence of PW1 and PW2 which was to the effect that there was no accident and that the event which led to the death of the deceased was calculated and urged court to so hold.

It was further contended that Engr. Adesanya Michael Adebanjo did not say in his statement that he saw the event that led to the death of deceased. That he only stated what he saw after the event had occurred. That he did not give evidence in court therefore his statement to the police had no evidential value. It was contended that police was entitled to investigate other possible theories arising in the course of investigating a purported motor accident and that if they later found evidence which negated their previous theory of accident and which evidence points to murder, they were at liberty to change their mind, abandon the theory of accident and investigate murder. Counsel urged the court to hold that the events that led to the death of the deceased was not an accident.

While arguing issue 2, respondent’s counsel submitted that the event of 8th October 1996 which claimed the life of Ferdinand Ukah at Ituku/Ozalla along Enugu Port-Harcourt Express Way was not witnessed by any other persons except the appellant. Appellant remain the only person that can give vivid account of what happened. Appellant admitted he sustained no injury.

Learned counsel submitted that circumstantial evidence sufficient to support conviction in a criminal trial especially murder, must be compelling and must lead to the irresistible conclusion that the appellant and no one else is the murderer. That the fact must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. See Ahmed v. State (2003) 3 ACLR, Lori & Anor. V The State (1980) 8 – 11 SC 81 @ 86.

Learned counsel submitted that PWI after performing autopsy on the body of the deceased concluded that the injuries from which the deceased died was externally inflicted and that it was incompatible with accident. Reference was made to Emeka v. State (2001) 14 NWLR (Pt. 734) 666 and Igabele v. State (2006) 5 MJSC 96 @ 109 to show that prosecution relied on circumstantial evidence. That the deceased was the last person to be seen in company of the appellant. That even where the body of deceased could not be found for examination by a medical doctor, the Supreme Court has held that the cause of death could be inferred by circumstantial evidence. See Ayinde v. State (1972) 3 SC 153, Edim v. State (1972) 4 SC 160 and State v. Edobor (1975) 9 – 11 SC 69.

Learned counsel enumerated the circumstantial evidence in the case at hand at page 8 of the respondent’s brief of argument. As to minor discrepancies identified by the appellant, counsel argued that such discrepancies do not touch the justice or substance of the case and urged the court to so hold. See Ehot v. State (1993) 5 SCNJ 65. Counsel finally submitted that the totality of the evidence adduced by the prosecution at the lower court point irresistibly to the fact that Professor Ferdinand Ukah was murdered by the appellant and so urged the court to so hold and uphold the conviction and sentence. Having briefly summarized the submissions of counsel, I will now resolve the issues raised in this appeal.

The first issue to be resolved is whether the trial court was right to refuse to consider the case as a motor traffic accident instead of a case of murder based on circumstantial evidence.
The appellant was arraigned before the trial court and charged of murder.
It is the duty of the prosecution in a charge of murder to establish the following ingredients of the offence:
(a) That the deceased died.
(b) That it was the unlawful act or omission of the accused person which caused the death of the deceased; and
(c) The act or omission of the accused which caused the death of the deceased must have been intentional with knowledge that death or grievous bodily harm was its probable consequence. See Abogede v. State (1996) 5 NWLR (Pt. 448) 270.
The ingredients must be proved by the prosecution beyond reasonable doubt. In Ogba v. The State (1992) 2 NWLR (Pt. 222) 164 at 198 paras C – D this court reiterated the law thus:
“These three conditions must co-exist and where one of them is absent or tainted with doubt the charge is not said to be proved. The onus of proof is on the prosecution throughout and does not shift”. See Obade v. The State (1991) 6 NWLR (Pt. 198) 435 at 456.

I shall now proceed to ascertain how the prosecution has striven to prove the three ingredients of the charge of murder leading to the guilt of the appellant beyond reasonable doubt as to warrant his conviction and sentence to death.
It is settled that the guilt of an accused person can be proved by:
(a) The confessional statement of the accused person,
(b) Circumstantial evidence, or
(c) Evidence of eye- witness of the crime. See Emeka v. State (2001) 14 NWLR (Pt. 734) 668 at 683.
From the facts as revealed in evidence, it is not in dispute that the deceased died. PW1 the Medical Doctor Performed a post mortem/autopsy and repairs on the body identified to him by PW3 as that of Prof. Ferdinand Ukah (the deceased). He performed the autopsy as well as carried out repairs which arose because of the ghastly nature of the wounds on the head of the deceased. See Exhibit A Post Mortem Report. PW4, PW5 and DW1 (accused person) all confirmed the death of the deceased.

What is however, disputed is whether it was the appellant that killed the deceased. It should be noted that one does not always need an eye witness account to convict an accused for murder. In the case at hand, it is not in dispute that there was no direct evidence linking the appellant with the death of the deceased. The present case is based on circumstantial evidence.
The contention of the appellant is that the evidence adduced by the prosecution supports a case of motor accident and not a case of willful killing in which a charge of murder is appropriate. In other words, the issue raised question, in the main, the quantum on sufficiency of circumstantial evidence upon which the learned trial judge based the conviction of the appellant.

The facts relied on by the prosecution run as follows:- On 8th November, 1996 one Prince Clement Ukah who later testified as (PW3) the elder brother of the deceased gave the appellant his vehicle to convey his younger brother (deceased) to Mgbowo their hometown in Agwu Local Government Area of Enugu State. On their way they allegedly had a fatal motor accident which involved the life of the deceased Professor Ferdinand Ukah. PW1 Dr. Jideofor Igbonekwu a registered medical practitioner testified that he performed autopsy on the body of the deceased and stated that the injuries on the body of the deceased were inconsistent with accident injuries and could not have been self inflicted. They could have been caused by a hard heavy, sharp object. PW1 gave a graphic evidence of the state of the corpse as follows:-
“While on duty on 9/10/96, a corpse was referred to me by the police to conduct a post mortem/autopsy and then repairs. The need for repairs arose because of some ghastly wounds on the head and face: the right eye ball, the whole ball, was hanging out. I had to put it back to enable the corpse look like that a normal human being. The body was that of a huge, tall black male individual between the ages of 35 and 45 years. The body was 3, deep long incisonal lacerations of the scalp. They are horizontal and clear edged heated on the local crest. The sound wound was on the vertex. The 3rd one was on the right front to pariento pariento. The 3rd wound on the fronto had fractured the bone of the eye ball thus forcing the eye ball to hang on the temple. It was hanging on the pedicle of the optic nerve. The wound on the vertex and the nuchal crest had factured and fragmented the cranium of the head or the skull bone. There was copious exadation of the brain matter so that about 90% of the brain matter had gone out leaving only about 10% of it still inside the skull. There was a bread superficial bruise from both sides of the temple down to the zaigome but this wound did not shave off the hair. Apart from the above wound on the upper part of the head there was no other bruises on wound in any other part of the body down to the toes. What could have caused the above wounds, in my opinion would be a hard heavy, sharp object or surface or projection. An object that could fit into this description would be an axe, a heavy matchet, a sharp and heavy metal or the edge of a hard concrete wall. The wounds which I saw on the deceased/corpse could not be self inflicted.
See also the medical report admitted as Exhibit ‘A’
PW2 a Deputy Director in the vehicle Inspection Division of Ministry of Works testified as follows:
“The vehicle was inspected on 18/10/96 at police station four corner along Agbani Ozalla road, during inspection the IPO NO. 85014 Sgt Ernest Eze was present. The Inspection revealed that the off side and near side, front and rear doors were dented. The bonnet and the roof were also dented. The front windscreen was broken. The offside door glass was broken. The offside front and rear tyres were punctured. Inspection also revealed that the vehicle was in perfect condition before the accident. The accident was not due to mechanical or electrical defect. As the inspection was on we discovered that there was a pool of blood on the driver’s seat. From the inspection I discovered that there was no usual indication of a sudden accident but if there was any accident most of the damages came after the accident. What I mean by the statement that there was no usual indication of a sudden accident is that the dent rising from a sudden collusion is quite different from a dent arising from calculation. This is because the object to be dented has no option of choosing where to be dented. Most of the dents I observed were more like calculated dents. The vehicle I inspected was Mercedes Benz 230 diesel engine. I did not find evidence of summersault because I personally went to the scene of accident. When I got to the scene I saw the grasses carefully rolled down but the shrubs and trees still standing. If it were a summersault, the place would have looked differently. Moreover, the dents on the roof and other dents were so minor as to have resulted from a summersault. It is not likely that a Mercedes Benz 230 while traveling at 80 KM per hour would summersault even where there is a tyre burst.”
Under cross-examination he stated at page 76 of the record thus:-
“I said that damages and dent on the vehicle are not commensurate with the nature of the accident. The dents were evenly distributed. The dents were of the same dimension and of a minor nature while the accident was of a serious nature.”
PW3 the elder brother of the deceased saw both the deceased and the appellant on 8/10/96 when they embarked on their journey to Mbowo. He saw the deceased sitting in front while the appellant drove the Mercedes Benz 230 diesel. He said he received a phone call that his brother was lying inside his car with his head battered. He went to the scene and took deceased body to the hospital. He identified the corpse to PW1 and other police officers. PW4 stated in his testimony that on 8/10/96, while travelling from Onitsha to his home town, on reaching Ituku, PW5 who was formerly in his employment flagged him down and told him there was an accident. He went to the car and saw the deceased behind the driver’s seat and leaning on the back seat. PW5 stated that on 8/10/96 he was travelling from Onitsha to Mgbowo when at Ituku, their vehicle was flagged down. He disembarked, and saw what happened. He stayed back at the scene but noticed the appellant was behaving abnormally. PW6 a photographer on 8/10/96 accompanied PW3 and policeman to the scene of accident. He took shots at the scene and following day he took photograph of the vehicle and the corpse. PW7 was the police officer who investigated the case involving the accused and also recorded voluntary statements from him which were admitted in evidence as Exhibits E, F, G and H respectively.
The defence was a denial of responsibility for the murder of the deceased. The appellant in his evidence in court at the trial gave account of what happened. Specifically on 8/10/96, he narrated how the accident happened. At pages 115 – 116 of the record, appellant as DW1 testified as follows:-
“On 8/10/96, I went to the house of Prince Clement Ukah who requested me to go to Modotels to pick his brother late Prof. F. Ukah, when I got to Modotels, Prof. F. Ukah told me that we will go to the village of Mgbowo but before that time I would have to wait since he is expecting one of his sister’s daughter…………………..
I drove through Independence Layout to the Enugu – Port Harcourt Express way and headed for Mgbowo. That was around 4p.m. When we got to ltuku, there was a pot hole on the road which I wanted to avoid. I then lost control of the vehicle. The car reversed from the road and later back to the road to the verge dividing the 2 express roads. There was a short tree there. When the car hit it the car tumbled. The tyres were no longer on the ground. Other drivers of vehicles came and assisted me out of the vehicle. It was at this time that other drivers of vehicles came and helped turn the vehicle back on its wheels…………………..”

DW1 maintained under cross-examination that deceased died as a result of a vehicle accident. That he did not kill the deceased or connived with people and killed him.
As earlier stated, prosecution relied on circumstantial evidence in proof of its case against the appellant. It has long been settled that great care must be taken by the court in drawing an inference of guilt of an accused person from circumstantial evidence so as not to fall into serious error. Circumstantial evidence therefore, must be narrowly examined so that a possibility of fabrication to cast suspicion on innocent persons is ruled out. Therefore, for circumstantial evidence to form the basis of conviction, the circumstances must clearly and forcibly suggest that the accused was the person who committed the offence and that no one else could have been the offender. See Udedibia v. State (1970) 11 S.C. 133. Adie v. State (1980) 1 – 2 SC 116, Omgodo v. State (1981) 5 – SC 5 and Orji v. State (2008) 10 NWLR (Pt. 1094) 31.
The law is not only that the circumstantial evidence must be cogent, complete and unequivocal but must equally be compelling and lead to irresistible conclusion that the accused and no one else is the murderer. The evidence must leave no ground for reasonable doubt particularly as any such doubt must, by law be resolved in favour of the accused. In Lori v. State (1980) 8 – 11 SC 81 at PP. 86 – 87, the apex court per Nnamani J.S.C. said:-
“It is conceded that circumstantial evidence is very often the best evidence. It is said to be evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial. R V Taylor and 2 Ors. 21 CR. App R. 20. See also Rex v. Chung Yi Micio 1928 Shotland Re. cited in Wills on circumstantial evidence, Seventh Edition (1936) P.324 per Humphrey J. But the circumstantial evidence sufficient to support a conviction in a criminal trial, especially murder, must be cogent, complete and unequivocal.
It must be compelling and must lead to irresistible conclusion that the prisoner and no one else is the murderer. The facts must be incompatible with innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.”

The two expert witnesses, the medical doctor (PW1) and the VIO Pw2 both testified that the injuries they found on the head of the deceased was inconsistent with the degree of damage they saw in the car and concluded that there was no accident. The learned trial judge at page 164 of the record found as follows:-
“What has the prosecution proved? There is evidence that the deceased was found inside a Mercedez Benz car at Ituku along the Enugu- Port Harcourt expressway with multiple deep and sharp cuts on his head. He was dead before any assistance could be rendered. The injuries he sustained were fatal, breaking the skull bone and the eye socket. According to PW1 the wound were incompatible with an accident taking into consideration his inspection of the vehicle involved in the alleged accident. PW1 agreed that if the head is forcefully based against the metal works of the vehicle an injury of the kind noticed on the body of the deceased could occur. However, there is evidence that the metal works of the vehicle were not exposed. The accused who drove the car for 9 days could not at the trial describe how the interior of the vehicle was. Whether it was padded or not. In his statement to the police on 19/10/96, Ex.G he had admitted that the interior of the vehicle was padded. The prosecution witnesses, PW1, PW2 and PW3 had given snippets of the interior of the vehicle. There is no evidence that the deceased was thrown out of the vehicle that could have resulted in an injury of the nature described by witnesses and seen in Exhibits C –
(20)”.
The learned trial judge believed PW1 as a witness of truth. The evidence of a witness to command and commend belief must therefore accord with the surrounding circumstances of the case as a whole. It is trite that any trial court has the liberty and privilege to believe one side and disbelieve the other. See Adebumola v. State (1988) 1 NWLR (Pt. 73) 613 at 69. As to credibility the trial court that saw the witnesses, heard them and watched their demeanor in the witness box, is in a very peculiar vantage position to believe. That advantage can never be recaptured by an appellate court on matters of credibility. PW1’s testimony remained unchallenged under cross-examination. PW1 maintained that the head injury inflicted on the deceased was caused by a hard sharp object. PW2 also stated under cross-examination that the damages and dent on the vehicle are not commensurate with the nature of the accident. PW2’s testimony remained unchallenged under cross-examination. For PW3 the accident was stage managed by the appellant. That appellant either murdered the deceased or connived with other people to murder the deceased. PW7 stated in Chief that he observed the pot hole which the accused alleged as the cause of application of the break and which resulted in the burst of the tyre was very short and not deep enough to cause any vehicle accident.

Appellant consistently maintained in his defence that the deceased died as a result of motor accident. The learned trial judge observed that appellant made contradictory statements in his extra judicial statements made to the police. The statements were found to be inconsistent and do not make a chain of defence. The trial court therefore rejected the defence of motor accident raised by the appellant.
From the evidence adduced particularly that of PW1 the medical doctor and PW2 the VIO which was accepted by the trial court as cogent and credible, it could be inferred from the circumstances that the head injury inflicted on the deceased which caused his death has no connection with the motor accident claimed by the accused (appellant). The medical report Exhibit ‘A’ prepared by PW1 stated the cause of death as follows:-
“I certify the cause of death in my opinion to be head injury and …………… shock secondary to trauma with a hard and sharp object.”

The question therefore is who killed the deceased? The appellant was last seen in company of the deceased. From the moment the vehicle left Eddy Record Stores at Ogui Road, the accused was with the deceased until the time of his death. PW3 confirmed this fact. That was not disputed by either the prosecution or the accused person. Whatever has happened to the deceased was within the peculiar knowledge of the appellant. In Emeka v, State (2001) 14 NWLR (Pt. 734) 666 at 683 the apex court held that:-
“Where the accused person was last person seen in the deceased’s company and circumstantial evidence is not only overwhelming but leads to no other conclusion, it leaves no room for acquittal.”

The doctrine of last seen means that the law presumes that the person last seen with a deceased bears full responsibility for his death if it turns out that the person last seen with him is dead. It is the duty of the accused person to give an explanation relating to how the deceased met his or her death. In the absence of any explanation, a trial court and even an appellate court will be justified in drawing inference that the accused person killed the deceased. See Emeka v. State (2001) 14 NWLR (Pt. 714) 666: Nwaeze v. State (1996) 2 NWLR (Pt. 428) 1: Adepatu v. State (1998) 9 NWLR (Pt.730) 375: Igabele v. State (2006) 6 NWLR (Pt. 975) 100 at 137 and the State v. Godwin Nwakerendu & 3 Ors. (1973) 3 ECSLR (Pt.11) 757.
In the case at hand, appellant gave explanation as to how the deceased met his death. Appellant claimed that the deceased died as a result of motor accident. In the light of the cogent and credible evidence adduced by PW1 and PW2 the defence of motor accident cannot exonerate the appellant having regard to the facts and circumstances of this case. Appellant has the responsibility to explain to the satisfaction of the court how the deceased met his death. As rightly observed by the learned trial judge, there is no eye witness account as to how the deceased met his death. No witness also testified to the effect that he saw the appellant use any hard heavy object on the deceased or saw him deal any blow on the deceased. No witness equally testified that he saw the vehicles Mercedez Benz car being driven by the accused on 8/10/96 somersaulted and stood on its roof. As earlier stated the case of the prosecution was hinged on circumstantial evidence. Although eye witness or other direct evidence is the ideal in establishing a guilt, there are situations where circumstances can clearly and forcibly suggest that the accused and no one else must have committed the offence with which he is charged. In the instant case, the learned trial judge was justified in drawing inference that the accused (appellant) person killed the deceased and not that he died as a result of motor traffic accident.

Appellant’s counsel had contended that there are discrepancies or material contradictions in the evidence of prosecution witnesses particularly PW1, PW2 and PW7 which created doubt as to the guilt of the appellant. That the contradictions were enough co-existing circumstances which weakened any inference for convicting the appellant for murder. As rightly found by the learned trial judge, the observed contradictions are not material and do not in any way affect the evidence adduced by the prosecution in proof of its case.
In Ehot v. State (1995) 5 SCNJ 65 at 80 the apex court held that minor inaccuracies and discrepancies that do not touch the justice or substance of a case should not be sufficient ground to disturb judgment. Indeed for any conflict or contradiction to be fatal to the prosecution’s case, it must be substantial and fundamental to the main issue. See Ndike v. State (1994) 9 SCNJ 46 at 54; Onabogu v. State (1994) 9 SC at 20 and Okeke v. State (1995) 4 NWLR (Pt.372) 676 at 703. The fact that PW1 stated in evidence that “in medicine anything is possible” is not sufficient to create uncertainty and doubt in PW1’s cogent and credible evidence that there was discrepancies relating to the ghastly nature of the injuries and the damage he saw on the Mercedez Benz car.

The complaint of the appellant that the learned trial judge did not properly evaluate the evidence is unfounded. Appellant was arraigned before the trial court on a charge of murder. The record clearly showed that the learned trial judge in his judgment reviewed the testimonies of the prosecution witnesses as well as the defence. The trial judge then embarked upon assessment and evaluation of the evidence adduced before ascribing probative value to same. As earlier stated the learned trial judge did considered the defence of motor traffic accident raised by the appellant but that the defence was rejected. The fact that the initial police report was a case of motor traffic accident does not preclude the police from charging the accused for murder if the investigation revealed that it was not a case of motor accident. I agree with respondent’s counsel that the police was entitled to investigate other possible theories arising in the course of investigating a purported motor accident and if they later found evidence which negated their previous theory of accident and which evidence points to murder, they were at liberty to change their mind, abandon the theory of accident and investigate the murder.

The complaint of the appellant that the trial court shifted the burden of proof to the accused to prove his innocence rather than requesting the prosecution to discharge the onus of proof beyond reasonable doubt as imposed by law is baseless. As earlier stated in this judgment the doctrine of “last seen” in company alive, requires the appellant to give satisfactory explanation as to how the deceased met his death. See Emeka v. State (supra) and Igabele v. State (supra). As noted earlier the appellant gave explanation but trial court was not satisfied because the circumstances adduced by the prosecution was cogent and compelling and irresistibly point to the guilt of the accused (appellant).In Peter Igho v. State (1978) 3 SC 87 the Supreme Court held at page 90 as follows:
“We can find no other reasonable inference from the circumstances of the case. The facts which were accepted by the learned trial Judge amply supported by the evidence before him, called for an explanation, and beyond the untrue denials of the appellant, none was forthcoming. Though this constitutes circumstantial evidence it is proof beyond reasonable doubt of the guilt of the appellant”.

I hold the view that there was nothing wrong with the approach adopted by the learned trial judge. The law requires the appellant to give satisfactory explanation as to what led to the death of the deceased.
In all criminal trials prosecution is required to prove its case beyond reasonable doubt and not beyond the shadow of doubt. In Bakare v. State (1987) 1 NWLR (Pt. 52) 579 at 587 Oputa J.S.C. had this to say:-
“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 be proved beyond reasonable doubt not beyond the shadow of any doubts 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 admit 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 admits fanciful possibilities to deflect the course of justice. If the evidence is 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.”

The compelling circumstantial evidence adduced is incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.
Having regard to the facts and circumstances of the case and the evidence adduced, the finding of the learned trial judge that prosecution had proved its case beyond reasonable doubt cannot be faulted. The learned trial judge concluded at page 166 – 167 of the record as follows:-
“There is abundant evidence that the accused was the person who was last seen with the deceased alive. They both left Eddy Records Enugu in the same car. The accused drove the car while the deceased sat as a passenger and they journeyed out of town and joined the highway. In less than an hour, the deceased is found with injuries incompatible with an accident. Although no person saw the accused deliver the fatal blow or any blow at all, on the deceased, the above facts in my opinion, prove the complicity of the accused persons in unlawful killing of the deceased, Prof. Ferdinand Ukah, with the precision of mathematics. See Okaroh Michael v. The State (1990) 1 NWLR 34 at 48. See also Safiu Amusa v. The State (1987) 4 SC 99 and Lateef Adeniji v. The State (2001) 13 NWLR Pt. (730) 125. I therefore find the accused guilty as charged”.

In the instant case, I am of the considered view that the learned trial judge properly evaluated the evidence and made findings of fact according to laid down principles of law as such this court has no business to interfere.
In the light of the above discussions, I resolve these three issues against the appellant and all the grounds to which they are married are hereby dismissed.
In the result, I find the appeal unmeritorious and same is dismissed. I affirm the conviction and sentence passed by Onovo J. of the High Court of Justice Enugu State on 23rd day of Novemberr, 2001 , in charge No. E/13c/97.

IGNATIUS IGWE AGUBE, J.C.A.: I have read before hand the draft of the Lead Judgment just rendered by my learned brother A.G. MSHELIA, JCA and I am in total agreement with his reasoning and conclusion that having regard to the facts and circumstances of the case particularly on the doctrine of last seen as enunciated in the authorities cited at page 23 of the Judgment, there is abundance of evidence that the Appellant being the last to be seen with the deceased alive had a lot of explanations to make in order to convince the Court that he did not kill the deceased or conspire with those who killed him, which he failed, refused and/or neglected to do.

There is no doubt also as was rightly held by my Lord, that there was no direct evidence from any witness who saw the Appellant kill the decease (a Professor) for that matter. However, from the circumstantial evidence adduced by the prosecution particularly from the Doctor who performed the autopsy and the Deputy Director in the Vehicle Inspection Unit of the Ministry of Works who both testified to facts showing that the purported accident by the Accused was a mere simulation, the prosecution had established the guilt of the Accused/Appellant beyond reasonable doubt.

On the whole, even if the Appellant is discharged assuming the facts of this case supported his defence, the blood of Professor Ukah must continue to haunt him and his cohorts and confederates till doomsday. He deserves to be hanged on the neck until he is certified dead for the dastardly act of murdering in cold blood a rare brain in a country like ours where the deceased would have contributed to the revitalization of our comatose health Sector.
I agree that the circumstantial evidence against him is so cogent and compelling and incapable of any other hypothesis than that of his guilt. See IGHO V. THE STATE (1978) 3 S.C. 87; BAKARE V. THE STATE (1987) 1 NWLR (PT. 52) 579 at 587 per Oputa, JSC.
Accordingly, I am also in agreement with my learned brother that the Court below properly evaluated the totality of the evidence adduced by both the prosecution and the Defence and rightly came to the inevitable conclusion that the Appellant was guilty as charged. On the authorities of MAIYAKI V. THE STATE (2008) 35 NSCQR 675, OYEBANJI v. LAWANSON (2008) 35 NSCQR 647; OGBU V. WOKOMA (2005) 14 NWLR (PT. 944) 118; there is no basis for our intervention or interference with the findings of facts as done by the learned trial Judge.

In the final result, I also hold that the Appellant’s Appeal lacks merit and is hereby dismissed with the ignominy it deserves. I also affirm the conviction and sentence to death by hanging imposed by Onovo, J. of the High Court of Justice Enugu State in his Judgment delivered on 23rd day of November, 2001 in the charge for which he was standing trial.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned Sister, ADZIRA GANA MSHELIA, JCA. I agree completely with the reasoning and conclusions therein. I also hold that this appeal lacks merit. It is hereby dismissed. I also affirm the conviction and sentence of the appellant by Enugu State High Court in charge No. E/13C/97.

Appearances

Appellant absent (though served)For Appellant

AND

R.E. Udeichi Asst. Legal Officer Ministry of Justice Enugu StateFor Respondent