CYRACUS EZEAMA v. THE STATE (2014)

CYRACUS EZEAMA v. THE STATE

(2014)LCN/7657(CA)

In The Court of Appeal of Nigeria

On Friday, the 7th day of February, 2014

CA/OW/132/2010

RATIO

CRIMINAL LAW: THE OFFENCE OF MURDER; THE INGREDIENT OF THE OFFENCE OF MURDER

It is trite law that for the Prosecution to secure conviction for murder these requisite ingredients must be inextricably present: (a) that the Appellant killed the deceased (b) that the killing was unlawful (c) that the Appellant unlawfully killed the deceased under one or the other of the six circumstances enumerated in Section 316 of the Criminal Code CAP. 30 LFN, 2004. See Onah v. The State (1985) 3 NWLR (PT. 1) 236 at 246 Paras C-D. per. UWANI MUSA ABBA AJI (PJ), J.C.A.

CRIMINAL LAW: THE PLEA OF ALIBI; THE BASIC RULES AND PARTICULARS ON WHICH A VALID PLEA OF ALIBI MUST STAND ON

The Supreme Court has laid down the basic rules and particulars on which a valid plea of alibi must stand on. These include: (a) the specific place/places where he was (b) the people in whose company he was (c) what if any, transpired at the said time and place. See Ebre v. State (2001) 12 NWLR (PT. 728) 617 at 636 Para C-G. In other words, particulars (a) and (b) must be jointly met before the plea stands while the particular (c) is optional. This is in line with the decision of Ba’aba, J.C.A. in Nsofor v. State (2002) 10 NWLR (PT. 775) 274 at 294 – 295 wherein it was held:
“the mere allegation that he was not at the scene is not enough, the accused person must give some explanation of where he was and who, could know of his presence at that other place at the material time of the commission of the offence in question…” (The underlined for emphasis).
It is therefore settled that the requisite particulars for the plea of alibi are where and who. However 3 conditions must be met before the court can consider the plea of alibi. These conditions to be fulfilled by the Appellant are (a) Give particulars of his whereabouts on the date in question (b) Furnish such information capable of investigation by the police (c) Timeously bring the defence to the attention of the police. See Ebre v. State (2001) 12 NWLR (PT. 728) 617 at 635 Paras G – H and Alma v. State (2009) 4 MJSC (PT. 2) 147. per. UWANI MUSA ABBA AJI (PJ), J.C.A.

EVIDENCE: BURDEN OF PROOF; THE BURDEN ON THE PROSECUTION TO PROVE THE GUILT OF THE ACCUSED PERSON

Before Their Lordships

UWANI MUSA ABBA AJIJustice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPEJustice of The Court of Appeal of Nigeria

PETER OLABISI IGEJustice of The Court of Appeal of Nigeria

Between

CYRACUS EZEAMAAppellant(s)

AND

THE STATERespondent(s)

UWANI MUSA ABBA AJI (PJ), J.C.A. (Delivering the Leading Judgment): This is an Appeal against the judgment of the High Court of Imo State sitting in Owerri presided over by Hon. Justice Nonye Okoronkwo, delivered on 8/10/2010 in charge No. HOW/35c/2000 – The State V. (1) Cyracus Ezeama (2) Anthonia Duru; wherein the Appellant was convicted and sentenced to death by hanging for the offence of murder contrary to Section 319 (1) of the Criminal Code Cap. 30 vol. 11, Laws of Eastern Nigeria, 1963, applicable to Imo State.

The brief facts of the case are that on 18/11/1998 between the hours of 4pm to 7pm, a couple; Basil Ezeama and his wife Francisca Ezeama, met their death at Umuduruaro Ubokoro Atta in Njaba Local Government Area of Imo State. The deceased husband, Basil Ezeama was on top of his bicycle with his deceased wife on the passenger seat when he was inflicted machete cuts and died on the spot along Orlu-Umuduruaro Ubokoro Atta road to harvest some farm produce from their farm. The same assailant pursued Francisca Ezeama, who out of horror ran for safety but was unfortunately overtaken and equally macheted to death. One Hyginus Ibenyenwa, while returning from his store to his house at the Afor-Atta market stumbled unto the lifeless body of Basil Ezeama, dead atop his bicycle. He immediately informed the eldest man in their house together with whom they reported the incident to Eze Azuike, their traditional Ruler. Before the break of day, the lifeless body of Francisca Ezeama was also discovered in a farmland. On 19/11/1998, the police visited the murder scene, subsequent upon which they arrested a total of seventeen (17) persons.

The police recovered a bucket stained with blood and a motorcycle from the family house of the Appellant and Anthonia Duru. At the end of their investigation, the police arraigned the Appellant, Cyracus Ezeama and his sister Anthonia Duru on a single charge of murder of Basil Ezeama and Francisca Ezeama on 18/11/1998; who pleaded not guilty to the charge. At the hearing de novo on 21/7/2008, the Prosecution called four (4) witnesses and tendered Exhibits A – F but subsequently recalled PW1 through whom Exhibits G – H were tendered and admitted. The Defence opened on 19/3/2009 with the evidence of the Appellant as DW1 and Anthonia Duru as DW2 (now discharged and acquitted) and tendered Exhibits J – N and closed its case. Written Addresses were adopted on 15/6/2009 and judgment was delivered on 8/10/2009 wherein the lower court convicted and sentenced the Appellant of the offence of murder and discharged the 2nd accused.

Being dissatisfied with his conviction and sentence, the Appellant Appealed to this Hon. Court vide a Notice of Appeal filed with the leave of the court granted on 16/2/2010 containing five (5) Grounds of Appeal reproduced below without their particulars:
GROUNDS OF APPEAL:
1. The learned trial judge erred in law when he held as follows: “All the questions raised above are issues arising from the case which the Defence would expectedly answer or divert or diffuse but they were conveniently left for an inference to be drawn and, the ready inference having regards to all the circumstances above but in particular to the blood stained machete found in his house is that the 1st accused killed Basil Ezeama and his wife Francisca Ezeama.”
2. The learned trial judge erred in law when he convicted the Appellant of the offence of murder and sentenced him to death.
3. The learned trial judge erred in law when he allowed the Prosecution recall PW1 in circumstances not permitted by law and thereafter admitted, relied on and made use of Exhibits B, C, D and H & G tendered through the PW1 to the prejudice of the Appellant.
4. The decision of the trial court is unreasonable and cannot be supported having regard to the evidence before the court.
5. The learned trial judge erred in law when he tried and convicted the Appellant of the offence of murder without giving him his constitutional right to fair hearing/trial in public.

The parties pursuant to the Rules and Practice of this Hon. Court filed and exchanged Briefs of Argument. The Appellant’s Brief settled by O. N. Ichie, Esq., is dated 24/4/2012 and filed on 26/4/2012. The Respondent’s Brief settled by M. C. Ijezie, Esq., Chief State Counsel is dated 24/7/2012 and filed on 15/8/2012. Consequentially, the Appellant filed his Reply Brief dated and filed on 5/12/2012. The Appellant formulated these 4 issues for determination as follows:

1. Whether having regard to the admissible and usable evidence adduced before the trial court, the Prosecution discharged the onus of proof placed upon it by law in this case by proving all the ingredients of murder beyond reasonable doubt against the Appellant. (Grounds 2 & 4).
2. Whether the trial court was right to convict the Appellant of the offence of murder based on suspicion and irrelevant materials as well as “Exhibits”/materials which were not tendered in Court and upon which the Court had entertained doubt and whether Section 149 (d), Evidence Act, CAP. E14 LFN 2004 does not operate against the Prosecution in the light of the facts. (Ground 1).
3. Whether the recall of PW1 – Gregory Ezeama – was, upon the facts, in accordance with any Criminal Procedural Law in force in Imo State and if so, whether the admission of Exhibits G & H and use of same by the trial court in circumstances other than for cross examination as to credit did not occasion a miscarriage of justice. (Ground 3).
4. Whether the proceedings of the court below were in breach of Sections 36(1) to 36(4) – 1999 Constitution of the Federal Republic of Nigeria and therefore null and void. (Ground 5).

The Respondent equally formulated 4 Issues to wit:

1. Whether the circumstantial evidence relied upon by the trial court for convicting the Appellant based on the case of the Prosecution met the requirements of the law.
2. Whether the lower court was right in admitting Exhibits G and H which are evidence of witnesses in the previous proceeding before the matter commenced de novo before him.
3. Whether the alibi put forward as defence by the Appellant could avail him in this case.
4. Whether Written Addresses of counsel is a trial in ‘secret’ and as such in breach of S.36(1) and (4) of the 1999 Constitution of the Federal Republic of Nigeria which provides for the right to fair hearing.

At the hearing of the Appeal on 12/11/2013, learned counsel to the Appellant, O. N. Ichie Esq., adopted and relied on the Appellant’s Brief of Argument and the Reply Brief as his argument canvassed in this Appeal and prayed the Court to allow the Appeal, discharge and acquit the Appellant, while the Respondent’s counsel, C. N. Akowundu, Esq, DPP, Ministry of Justice, Imo State, adopted and relied on his brief and urged the court to dismiss the Appeal and affirm the decision of the learned trial judge.

I will for the purpose of determining this Appeal adopt the Appellant’s Counsel’s Issues as they capture the real complaint of the Appellant in the Appeal. Before I delve into the Appeal proper, let me comment on the Reply Brief filed by the Appellant. The Appellant’s counsel responded and argued on some issues raised in the Respondent’s Brief in his Reply brief dated and filed on 5/12/2012.

The learned counsel to the Appellant has urged this Honourable Court to strike out the Arguments of the Respondent contained on pages 8 – 9 paragraphs 3.12 – 3.17 because they constitute issues outside the Grounds of Appeal when he has not cross-appealed or filed a Respondent’s notice to affirm judgment. He relied on APGA v. Ume (2011) 2-3 MJSC (PT. 1) at 119 – 120 Paras G-H.

He equally argued that since the Respondent’s counsel did not react on the issue of what kind of blood and whose it was on the machete and bucket it should be resolved in favour of the Appellant. He relied on the preceding cases cited.

I will hastily comment that a Reply Brief is not meant for the Appellant to reconstruct, garnish, embellish, re-argue or re-establish his case, neither is it for him to have a second bite at the cherry. The Appellant’s Reply Brief is incompetent and hereby discountenanced. See Raymond D. Ogolo v. Paul D. Fubara (2003) FWLR (PT. 169) 1285 at 1308. The Appellant has also queried the Respondent’s formulation of issue outside Grounds of Appeal in paragraph 1.00 of his Reply Brief. It is equally the law that a Reply Brief is not for quarrelling with formulation of Respondent’s Issue. This requires an Objection. See Vincent Standard Steel Nig. Ltd. v. Government State (2001) FWLR (PT. 66) 697 at 703. Same is discountenanced.

ISSUES 1:
Whether having regard to the admissible and usable evidence adduced before the trial court, the Prosecution discharged the onus of proof placed upon it by law in this case by proving all the ingredients of murder beyond reasonable doubt against the Appellant. (Grounds 2 & 4).

It is the contention of the Appellant’s counsel that to secure conviction for murder, the Prosecution must prove: (a) that the Appellant killed the deceased (b) that the killing was unlawful (c) that the Appellant unlawfully killed the deceased under one or any of the six (6) circumstances in Section 316 of the Criminal Code, CAP 30 LFN, 1963. He cited Onah v. The State (1985) 3 NWLR (PT. 1) 236 at 246 Paras C-D. He also argued that the Appellant had denied involvement in the alleged murder charge through the defence of Alibi as per Exhibits K and L but the police failed to investigate same, thus the identity of the killers of the deceased persons is an unresolved issue which was why he was not charged alone. He submitted on the second ingredient i.e. unlawful killing, that the Prosecution paraded four (4) witnesses but none witnessed the murders. He submitted further that the court having disbelieved and discountenanced the evidence of the only so-called eye-witness (Ugonna Ibenyenwa), the Prosecution’s case ought to have ended since the identity of who killed the deceased was not proved beyond reasonable doubt against the Appellant. He relied on Section 38 of the Evidence Act, LFN 2004. He emphasised that the trial court could not establish from the evidence of PW1 to PW4, who murdered the deceased. He relied on Woolmington v. DPP (1935) AC 462 restated in Ani v. The State (2009) 6 MJSC (PT. 11) 1 at 16 Para B.

The Appellant’s counsel submitted that the trial judge was in grave error to have used and relied on irrelevant and suspicious evidence like the land dispute between the Appellant’s family and the family of the deceased persons, that the Appellant was seen by PW3 in the morning of the incident but he lied about his whereabouts, the Appellant did not participate in the night vigil on the deceased bodies, their house was left open with animals bleating, the bodies of the deceased were found near the family house of the Appellant, a machete smeared with blood and a bucket mixed with water and blood was found in the Appellant’s family house and that the Appellant did not take the police to verify his defence of alibi; to convict the Appellant. He heavily relied on Clark v. The State (2007) ACLR 100 at 117 Paras 5 – 10, Nsofor v. State (2005) AFWLR (PT. 342) 397 at 416 Paras A-B. He strongly submitted that the doubts entertained and raised by the trial court coupled with the surrounding circumstances ought to have been resolved in favour of the Appellant since it is better to set free 9 guilty men, than to convict 1 innocent person. He cited Alma v. State (2009) 4 MJSC (PT. 11) 147 at 171 Paras F – G.

Learned counsel to the Appellant also submitted that the Prosecution did not prove that the Appellant was a party to the murder contrary to Section 7 of the Criminal Code, CAP. 31, LFN, 1963, applicable to Imo State.
He further contended that the Appellant’s defence of alibi was properly raised yet the trial judge glossed over it and convicted the Appellant on weak circumstantial pieces of evidence. He relied on Ebre v. State (2001) 12 NWLR (PT. 728) 617 at 635 Paras G – H, Alma v. State (2009) 4 MJSC (PT. 2) 147, Okosi v. State (1989) NWLR (PT. 100) 642, Yanor v. State (1965) ALL 1 NLR ANR 193, and Ani v. State (2009) 6 MJSC (PT. 11) 1 at 15 Para D. He argued that the reliance on the tainted and sole evidence of PW3 and Exhibit H by the trial judge to dismiss the Appellant’s alibi occasioned a miscarriage of justice. He relied on Abudu v. State (1985) 1 NWLR (PT. 1) 55 at 56 Ratio 5.

It is the further argument of learned counsel to the Appellant that the Prosecution Witnesses fundamentally contradicted themselves on who killed the deceased persons and who witnessed same and that the Court cannot pick and choose who to believe or not. He relied on Onubogu v. State (1974) vol. 9 NSCC 358 at 365 Para 15-20, Minilodge Ltd. v. Ngei (2009) 12 NJSC (M.I) 56 at 76 Paras A – B, and Joshua v. Q (1964) ANLR 1.

Learned counsel to the Appellant went further in his argument that the trial court made use of Exhibits (i.e. the alleged blood stained machete and enamel bucket mixed with blood and water) which he did not see in convicting the Appellant. He quoted and relied on the case of Ekpenu Polo v. Edremoda (2009) 3 MJSC 63 at 87 Paras A – B.
He thus urged this court to resolve this issue in favour of the Appellant.

On the other hand, learned counsel to the Respondent argued that the ingredients of murder the Prosecution is expected to proof beyond reasonable doubt are: (a) that the deceased has died (b) that the death of the deceased was caused by the act of the accused (c) that the act of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence. He cited Nwachukwu v. State (2002) FWLR (PT. 123) 312 at 332 Paras C-D. He argued that the irresistible and un-mistakable circumstantial evidence has pinned down the Appellant as the murderer of the deceased. Besides that the silence and mute maintained by the Appellant over the puzzles of the offence did not do him any good. He relied on Adeniji v. State (2000) 2 NWLR (PT. 645) 354 at 364 Paras C – H, and Section 36(5) of the 1999 Constitution. He emphasized on the sore hatred and dispute between the Appellant’s family and that of the deceased and even their lack of compunction after the murder of the deceased. He said that the circumstantial evidence is very strong against the Appellant’s family especially Exhibit G and submitted that in the midst of these puzzles, the Appellant did not controvert or challenge them, thus they are deemed admitted. He relied on Akpan v. State (2008) All FWLR (PT. 420) 644 at 668 Para F, and Ibe v. State (1997) 1 SCNJ 256. And that where there is no ground of appeal challenging a finding, the finding subsists. He quoted Ekeh v. Amaechi (2010) All FWLR (PT. 512) 1132 at 1155.

He argued also that the loss of the blood stained machete and the blood contaminated water was inconsequential since the trial court had taken judicial notice of it. He quoted Enwereji v. State (2005) All FWLR (PT. 280) 1606 at 1607 on the definition of circumstantial evidence. He contended that the judge is permitted to infer other facts necessary to complete the elements of guilt in the absence of direct evidence. He cited Nasiru v. State (1999) 2 NWLR (PT. 589) 87 at 103 – 104. He relied on Nigeria Airforce v. Ex – S Leader A Obiosa (2008) FWLR (PT. 148) 1224 at 1254 Paras C – E that the Prosecution has proved its case beyond reasonable doubt and that minor discrepancies should not disturb a judgment. He relied on Igabele v. State 25 NSCQR 321 at 337. Consequently, he prayed that this issue be resolved in the Respondent’s favour.

It is in evidence on record that Basil Ezeama and Francisca Ezeama were gruesomely killed sometime on 18/11/1998 at Umuduruaro Ubokoro Atta in Njaba Local Government Area. As to “who” killed the deceased, it is also on record that quite a number of persons were arrested in connection with the murder including one Fidelis Obi, Martina Ezeama and others. Consequently, Anthonia Duru and the Appellant (who was arrested about 2 weeks after the incident) were paraded as the accused persons. Resultantly, the Appellant was convicted and sentenced to death by hanging by the trial High Court.

It is in evidence that the identity of the Appellant as the assailant of the 2 deceased persons is gravely in doubt. The Prosecution witnesses contradicted themselves as to who killed the deceased and who witnessed same. This accords with the reasoning of the trial court in page 138 of the Records wherein it treated the evidence of PW1 and PW2 as incredible and therefore unreliable. See Onubogu v. State (1974) vol. 9 NSCC 358 at 365 paras 15 – 20 and 45 – 50 and page 366 paras 5 – 10. PW2 testified at P.78 Para 2 lines 8 – 9 where she said “on getting to the village, we saw that 1st accused, 2nd accused, Moses, Nwaigbo and Mgbeke had killed our parents.” The only evidence that borders on the identity of the Appellant was the hearsay evidence of PW1 (Gregory Ezeama) that he was told by Oluchi Ezeama that Ugonna Ibenyenwa witnessed the killing of the deceased by the Appellant. This was of course and rightly jettisoned by the trial judge at Para 5 of Page 138 of the records. This Court also cannot admit hearsay evidence! Furthermore, even the Exhibit G relied upon by the Respondent was unrelied upon and discountenanced by the trial judge wherein he held at pages 139 – 140 of the Records inter alia thus:

“…this witness seems to me to have been procured in order to strengthen the case of the Prosecution in a case where the Prosecution is having the problem of direct evidence. To say the least, I do not believe Ugonna Ibenyenwa and cannot rely on his evidence.”

This was in tandem with the court’s decision in Nnunukwe v. State (2003) 14 NWLR (PT. 840) 219 wherein it was held that a court will not rely on the evidence of a witness who testified that he was an eyewitness but who failed to report what he saw to the police until 2 months after the incident.
I therefore cannot see anywhere in the evidence on records of this Appeal where the Appellant has been squarely fixed and identified as the assailant of the deceased persons. It is the law that the identity of the Appellant should not be in doubt. In Olalekan v. State (2001) 18 NWLR (PT. 746) 793 at 823 Paras A – B, the Supreme Court held:
“where in a criminal case the identity of the accused is in doubt and the Prosecution’s case depends solely on the identification of the accused which if weak, caution must be applied in convicting the accused.”

I must reiterate here too that the Appellant having not been charged alone but with his sister, Anthonia Duru, (who was subsequently discharged and acquitted), Fidelia Obi and Martin Ezeama; on a one count charge of murder with similar and interwoven facts is a pointer that the assailant of the deceased persons has not been identified. More so, could the Appellant have been the same and only person who possibly killed the two deceased persons at different spots?

What then does the evidence reveal to us about the identity of the Appellant as the assailant of the deceased persons? PW1 in his evidence testified nowhere that he witnessed the incident nor identified the Appellant at the scene of the crime. He in fact said at Page 77 para 12 that “it was through Oluchi that I know that Ugonna witnessed the incident. I then called the police who came and took him.” This must hastily be dismissed as hearsay. PW2 admitted at para 7 page 79 that “I was not present when my parents were killed…” PW3 also in page 83 para 11 lines 7 – 8 admitted that “I told the police that I was not present when the deceased couple Basil and Francisca was killed.” PW4 was the Medical Doctor who testified on the cause of death at pages 85 – 86 of the records.

The Appellant, in denial of his complicity in the murder of the deceased persons pleaded alibi.

It is the contention of learned counsel to the Respondent in his Issue 3 that the defence of alibi or any other is not available to the Appellant. He argued that the defence is set up timeously and with particulars like: (i) Give particulars of his whereabout on the date in question (ii) Furnish such information capable of investigation by the police (iii) Timeously bring the defence to the attention of the police; but the Appellant failed. He relied on Ochemaje v. The State (2008) 36 NSCQR 826 at 879 – 880. He also maintained that the alibi of the Appellant was demolished by the evidence of PW3 who testified that the Appellant was in Ubokoro Atta on 18/11/1998, the date and place of the murder and the evidence is valid though elicited under cross-examination. He placed reliance on the case of Omotola & Ors v. The State (2009) LRCN.He equally argued that it behoved on the Appellant to introduce or call evidence to support his defence of alibi. He relied on State v. Azeez (2009) 171 LRCN 193 at 197.

Has the Appellant met the conditions and furnished the aforestated particulars to avail him the plea of alibi? The contention of the Respondent on para 5.04 of his brief is not that alibi was not pleaded by the Appellant but that it was not properly set up. Thus, I am called upon to determine whether it was properly set up.

Exhibits K and J containing the Appellant’s statement to the police made on 7/12/1998 and 29/1/1999 respectively and his evidence in court on 19/3/2009 will be our guide. Did the Appellant timeously bring the defence to the attention of the police?

At his arrest in the police station on 7/12/1998, the Appellant made inter alia the following statement to the police:
“I live at Okon in Iket-Ekpeyen village Eket…”
“I was never with the above mentioned persons in my father’s compound on 18/11/98. To be candid, I never came home in the month of November 1998. I came home last in the month of October 1998 and went back to Akwa Ibom State on 24/10/98…” At Akwa Ibom State, I had no room of mine own. I was squatting with one of my friends in his room called Ignatius Okwara of Umutanze Orlu. He works in one Bakery house over there…”

Also in Exhibit J, the Appellant’s statement to the police on 29/1/99 inter alia contains the following:

“…on 18/11/98 I was at Eket, Akwa Ibom State. I was not aware that native doctor Ekereke Onyemasomun came to our house and performed ritual in our compound to appease my late father…”

It is my humble opinion that this defence was timeously raised having been made in the police station when his statement was taken. The next hurdle to cross then is whether the Appellant gave particulars of his whereabout capable of investigation by the police! Aside his two statements to the police aforequoted, his evidence at Page 90-91 corroborate and buttresses these facts thus:

“…on 18/11/98 I was at Okon Eket in Akwa Ibom State. I made a statement to the police…”

The following was equally elicited from the Appellant under Cross-Examination and never impeached by the Prosecution:

“I was at Eket. I told the police that I was at Eket. I told the police, I was living with my friend Ignatius Okpara at Okon Eket”

When confronted that he killed the deceased, he resonately replied:

‘I did not. I was not at home… I was a driver before I left to Akwa Ibom.”

I humbly opine that the “who” and “where” were furnished by the Appellant but the police woefully and negligently failed to investigate! Ignatius Okpara of Umutanze Orlu was living at Okon Eket in Akwa Ibom State and working in a bakery house in Okon Eket, Akwa Ibom State. These particulars and information are capable of being investigated by the police. Has it been investigated that there is no human being in Okon Eket especially in any bakery house bearing the name Ignatius Okpara? Did the police also find out or investigate whether a village called Umutanze Orlu exists and whether Okon Eket is in Akwa Ibom State? Their investigations probably would have been sufficient. It must be stated, however, that it is not part of the accused person’s duty to prove his alibi – Per Nnaemeka-Agu, J.S.C. in Esangbedo v. State (1989) 4 NWLR (PT. 113) 57 at 70. Germane and related to the facts of this Appeal is the dictum of Per Coker JCA in Saka v. State (1980) (1) N.C.R. 309 at 322 at 333 where he declared that “the alibi set up by the Appellant was properly investigated and found to be false. In fact the name and address of the person he gave to the police during the investigation was different from that given at the trial.”

In the instant Appeal, the investigation of the police as to the falsity of the name and address would have held water. Per Obaseki, J.S.C. in Ukunnenyi v. State (1989) 4 NWLR (PT. 114) 131 at 149 aptly captured the inevitable duty of the police to investigate alibi thus:
“when it is raised at the investigation stage, it is the bounden duty of the investigating police officer to investigate it in order to ascertain its truth (i.e. that the suspect was present at a place other than the scene of crime when the crime was committed) or its falsity (that the suspect was not where he said he was when the crime was committed). Failure to investigate deprives the Prosecution of this vital piece of evidence and when the accused introduces evidence of his alibi, there will be nothing to counter the defence which a trial judge can consider as a challenge to that defence. Thus, the failure of the police to investigate not only weakens the case for the Prosecution but also gives force to the alibi to create doubt in the mind of the trial judge the benefit of which must be given to the accused. It is therefore essential that the Prosecution is fully aware of the importance of producing evidence of the investigation of the defence of alibi set up by the suspect before them.”

I must restate here that the case of Omotola & Ors v. State (2009) LLCN cited by the Respondent in his Brief at Para 5.13 giving credence to the evidence of PW2 (that they saw the Appellant in the village of Ubokoro Atta on the date of the murder) is not applicable to the instant Appeal and thus grossly misconstrued. The fact that the Appellant was seen on the date of the incident is not coterminous with fixing him to the scene of the crime. There is therefore, no evidence fixing the Appellant to the scene of the crime though probable that he was seen in the village at the date of the murder.

Furthermore, I have not seen anywhere in the evidence the proof of investigation of the alibi by the police. The law is settled that it is the duty of the police to prove/disprove and investigate alibi. See Okosi v. State (1989) NWLR (PT. 100) 642 and Yanor v. State (1965) 1 ANR 193. It is also not in the powers of a trial judge to exercise belief where investigation was required and neither is it in his powers to investigate alibi.
Based on the foregoing, I have no hesitation in resolving Issue 1 in favour of the Appellant.

ISSUE 2:
Whether the trial court was right to convict the Appellant of the offence of murder based on suspicion and irrelevant materials as well as “Exhibits”/materials which were not tendered in court and upon which the court had entertained doubt and whether Section 149 (d), Evidence Act, CAP. E14 LFN 2004 does not operate against the Prosecution in the light of the facts (Ground 1).

It is the argument of the Appellant’s Counsel that it is the duty of the Prosecution to prove the guilt of the accused and not for the accused to prove his innocence. He quoted the case of Kinnami v. Bauchi Native Authority (1957) NRNLR 42, and that when a court misplaces the burden of proof, miscarriage of justice is occasioned. He relied on Osaluwa v. Isibor (2004) 3 NWLR (PT. 859) 16 at 43 – 44 Paras F – D, PH. MB v. Ejitagha (2000) 11 NWLR (PT. 677) 154 at 160 paras E – D, Onobruchere v. Esegiwe (1986) 1 NWLR (PT. 19) 799 at 805 Paras F – G, R. v. Oledinma (6 WACA) 202 cited in Onyenankeya v. State (1964) 1 NMLR 34 and Ahmed v. State (2003) 3 ACLR 63 Paras 35 – 45 and at 64 Paras 5 – 10.

He submitted that by the contents of Exhibits J and K, the Appellant showed that he was not in Imo State and neither in the locus when the incident of 18/11/98 took place but when he came to the SCID to inquire about his detained mother and sisters, he was also arrested and detained by the IPO. Further on the blood stained machete, he argued that because the police did not know whose blood was on it, they recommended for a forensic blood test but this was never tendered in evidence. He emphasised that this made the court to entertain doubt but the trial court still went ahead to resolve his doubts in favour of the Prosecution and against the Appellant. He maintained also that there was also evidence of a pregnancy ritual wherein a fowl was killed, yet the trial court was concerned with whose blood was on the machete. He summarized that all these doubts ought to have been resolved in favour of the Appellant but the trial court swept it under the carpet. He relied on Onah v. State (supra), Nsofor v. State (supra), Bozin v. State (supra), Onuoha v. State (supra), Jushua v. State (supra), Ahmed v. State (supra), Ani v. State (supra), Onubogu v. State (supra) and Abudu v. State. His contention also is that the trial court was in grave error having failed to apply Section 149 (d) of the Evidence Act, 2004 and the inference to be drawn is that the report if tendered would have been unfavourable to the Prosecution. He cited Ekpemupolo v. Edremoda (supra) and Ani v. State (2009) 6 MJSC (PT.11) 1 at 25. He therefore prayed this Hon. court to resolve issue 2 in favour of the Appellant.

The Respondent’s Counsel’s contention on the other hand is that the irrelevant materials referred to by the Appellant’s Counsel are Exhibits G and H and same were recovered under Section 34(1) of the Evidence Act and Section 294(3) of the Criminal Procedure Act. He submitted that the said Exhibits contain the evidence of witnesses that testified before Hon. Justice Chioma Nwosu before her elevation to the Court of Appeal and that the witnesses were duly cross-examined. He further contended that the said Exhibits were tendered without objection after necessary foundations were laid for their admissibility. He submitted that the respondent did not withhold evidence in respect of the blood-stained machete and the water-mixed with blood contrary to Section 149(d) of the Evidence Act. He maintained that at page 144 lines 14-16 of the records, the police reported that same was gutted by fire in Calabar. He in the same vein argued that the evidence by the police officer on the said Exhibits was not cross-examined, hence unchallenged and admitted. He relied on Igabele v. State (2005) All FWLR (PT. 285) 568 AT 593 Paras D – E. He thus concluded on this issue that what governs admissibility is relevancy. He quoted Torti V. Ukpabi (1984) NSCC 141 at 142.

It is trite that it is the duty of the Prosecution to prove the guilt of the accused person and not for the accused person to prove his innocence. See Kinnami v. Bauchi Native Authority (1957) NRNLR 42. It is on Record especially on page 145 that the trial judge raised a series of questions grounded on suspicion and feebly circumstantial. It is for the Prosecution to prove its case beyond reasonable doubt and until this is done, the accused has no duty to call evidence in rebuttal. See Aigbdion v. The State (2001) 2 ACLR 49 at 61 – 62 Paras 45 – 50. The issues raised or suggested by the trial court in paragraphs 2 and 3 in page 145 of the records are suggestive that the accused should have answered, diffused or disproved!!! I in fact feel compelled to reproduce the irksome issues and suspicious questions put up by the trial court at page 144-145 paragraphs 3, 4-1 of the Records expectantly to be answered by the Appellant instead of the Respondent:

‘Regrettably as the loss of the blood stained machete and the blood contaminated bucket of water maybe, evidence has been led to the effect of their occurrence or existence and the evidence was unchallenged throughout, thus raising another issue of what kind of blood or whose blood was on the blood stained machete and bucket containing water mixed with blood. It must be on the basis of the above that PW3 in cross examination said ‘it was the 1st accused who killed the deceased couple. I told the police that I was not present when the deceased couple were killed’
Evidence has been laid at the strong enmity existing between the closely related families of the 1st accused one Emmanuel died , the family of the 1st accused, accused the deceased Basil of being responsible for the death of their son and brother through juju or poison. It took a village administered and supervised oath by the deceased Basil to clear himself after surviving the oath one year after. Even at that, the animosity did not clear and the deceased Basil had to leave the village with his deceased wife and their very small children to Orlu for safety. It was from Orlu that they came to the village Atta to pick food stuff and were brutally and vengefully assassinated’

All these portend suspicion and circumstantial evidence from the trial Judge. Suspicion however grave cannot take the place of evidence. See Clark v. State (2007) ACLR 100. The Supreme Court stamped on this in Ahmed v. State (2003) 3 ACLR 63 paras 35 – 45 and at 64 paras 5 – 10 when it held that:
“our criminal justice system losses its essential requirement of proof by evidence beyond reasonable doubt if persons accused of crime are convicted on mere suspicion or on mere speculation, however intelligent that may be, notwithstanding the inadequacy of evidence. Whatever the reason for the inadequacy of evidence or absence of essential evidence may be immaterial to the duty of the court not to convict an accused of an offence not proved by evidence.”
The trial court apparently based its finding on suspicion to the effect that it ruminated thus: “why then was he lying that he was at Okon Eket in Akwa Ibom State?” The court in this respect had this to say in Ubochi v. State (1993) 8 NWLR (PT. 314) 697 at 713:
“It has never been the law that the mere fact that a person told lies is by itself sufficient to convict him of an offence unconnected with mendacity nor does the fact that an accused person told lies relieve the Prosecution of its duty of proving the guilt…beyond reasonable doubt.”

The trial court at para 3 of page 145 of the records further said; “All the questions raised above are issues arising from the case which the defence would expectedly answer or divert or diffuse…” I make bold to state that it is the constitutional right of an accused person to remain silent. This was succinctly held Per Nnaemeka – Agu, JSC in Utteh v. State (1992) 2 NWLR (PT. 223) 257 at 274 as follows:
“It is true that an accused person is, under our constitution entitled to remain silent either during investigation or in court. The Prosecution is still bound, as the party on which the onus lies – a very high onus at that – to prove its case beyond reasonable doubt. But if at the trial the Prosecution calls credible evidence which in the evidence remains unrebutted, the court is entitled to accept it.”

It is not in evidence that the blood stained machete was subjected to any forensic laboratory test hence not tendered nor any explanation made as the scientist in person of A. A. Oluwo of Forensic Science Laboratory, Lagos, was not called to testify, which also made the trial court to entertain doubt in paras 2 and 3 of page 144 of the record as follows:

“The snag about the blood stained machete and bucket is that although the police took the items away presumably for forensic analysis, the items were never taken to any forensic laboratory neither were they produced and tendered. Instead, the police investigator in Exhibit H informed the Court that those exhibits and others were gutted in a fire incident at the Zonal Police headquarters in Calabar in 1999.
Regrettably as the loss of the blood stained machete and the blood contaminated bucket of water may be, evidence has been led to the effect of their occurrence or existence and the evidence was unchallenged throughout, thus raising another issue of what kind of blood or whose blood was on the blood stained machete and bucket containing water mixed with blood. It must be on the basis of the above that that PW3 in cross examination said “it was the 1st accused who killed the deceased couple. I told the police that I was not present when the deceased couple were killed.”

Yet the trial court resolved its doubt in favour of the Prosecution. In para 2 lines 11 – 13 of page 145 of the records thus:

‘Who kept the blood stained machete in the house of the 1st accused? Who contaminated the enamel bucket of water with blood in that house?’

Nonetheless, at page 146 of paragraph 2 of the Records, the trial court believed that there was another type of blood: “I do not believe that the 2nd accused was involved in the killing or in any manner implicated in the killing. I find that she came with her husband to her maiden home to perform some traditional religious sacrifice aimed at purifying her in her marital home and left shortly after the ritual.” Note this in Exhibit ‘N’ being the statement of the 2nd accused person that a fowl was killed for that ritual.

It is the law therefore that the blood stain on the machete being the alleged murder weapon and the blood mixed with water in the enamel bucket must match that of the deceased persons and the Appellant’s, otherwise the case against the Appellant must fail. The Supreme Court per Oputa, JSC in Onah v. The State (1985) 3 NWLR (PT. 12) 236 at 246 – 247 vividly expounded on this:
“To link these blood stains found in the compound and the blood stains on the machete with the blood of the deceased and then ultimately, with her murderer, there ought to be evidence to show that those stains (around the compound and on the machete) were human blood stains of the same blood type and grouping as that of the deceased…talking about blood stains, there was evidence that some stains presumably blood were found on a wrapper worn by the Appellant. That wrapper was not sent for analysis and there was therefore no nexus between the blood stains found on the wrapper of the Appellant and human blood let alone the blood of the deceased. This ought to have been established by positive evidence. There is no evidence to show that the “blood stains found on the wrapper worn by the Appellant was not only human blood but also human blood of the deceased that is blood of the same type and grouping as that of the deceased. Again, the machete was not examined for finger prints and so here too there was no nexus between the Appellant and the machete.”

It must be commented upon also that indeed, the trial court made use of or was influenced by exhibits it did not have the opportunity of seeing. See Ekpenupolo V. Edremoda (2009) 3 MJSC 63 at 87 paras A-B. Furthermore, the circumstantial evidence relied upon and canvassed by the Respondent in this Appeal cannot stand for being too weak, resistible and imprecise. This issue is accordingly resolved in favour of the Appellant.

ISSUE 3:
Whether the recall of PW1 – Gregory Ezeama – was, upon the facts, in accordance with any criminal procedural law in force in Imo State and if so whether the admission of Exhibits G & H and use of same by the trial court in circumstances other than for Cross Examination as to credit did not occasion a miscarriage of justice (Ground 3).

It is the argument of the Appellant’s Counsel that the Respondent’s recall of PW1 through whom Exhibits G and H were tendered, was wrong and ought to have been at the instance of the court and not the Prosecution contrary to section 200 of the Evidence Act, LFN, 2004. He contended that Exhibits G and H admitted can only be used to discredit the Prosecution witnesses. He placed reliance on Onwe v. State (1975) NSCC 375 at 381 and Dada v. Bankole (2008) 3 MJSC 1 at 14 – 15 Paras G – H. He prayed that the said Exhibits G and H be expunged from the court’s record having not complied with section 34 of the Evidence Act, LFN, 2004. He relied on Ariku v. Ajiwogbo (1962) 1 ANLR 629 AT 631 – 632, Alade v. Borishade (1960) 5 FSC 169 and Dada v. Bankole (supra). He submitted that their reception and reliance by the trial judge occasioned a miscarriage of justice against the Appellant.

He argued that the non-reaction by the Respondent on the recall of PW1 and the wrongful use of Exhibits G and H should be resolved in favour of the Appellant because they amount to admission. He cited Federal Ministry of Commerce & Tourism v. Eze (2006) AFWLR (PT. 323) 1704 at 1717 Paras E – H, and Nwankwo v. Yar’adua (2010) 3 MJSC (PT. IV) 1 at 28 Paras A – B. He therefore urged this Hon. Court to resolve this issue in the Appellant’s favour.

The Respondent in his Issue 2 argued that Exhibits G and H were recovered under Section 34(1) of the Evidence Act, LFN, 2004 and Section 294(3) of the Criminal Procedure Act, being evidence of witnesses in the aborted previous proceeding. He argued further that the said witnesses therein were cross-examined by the Defence and proper foundation was laid as to the impossibility or expense of their presence, and that the issues and parties are the same.

He therefore asked the court to resolve Issues 2 against the Appellant and dismiss the Appeal.

It is however the law that the Prosecution witness may be recalled where the justice of the case demands. It is not done as a matter of course for the Prosecution to build his case where he has fundamentally failed to do that as in the instant case.

Exhibits G and H are respectively the previous testimonies of one Ugonna Ibenyenwa and Sgt. Anthony Ibeawuchi, Inspector Michael Okpoebo and Sabastine Uzoma; tendered and admitted in the present Appeal. It is on record at pages 87 – 88 that the previous testimonies of the above listed persons in the previous and aborted proceedings were admitted as Exhibits G and H respectively. These persons were not called to give evidence in the instant case leading to this Appeal. It is established and decided in a plethora of our cases that evidence given in previous proceedings are inadmissible as the truth of what it states except for the purpose of cross-examination as to credit. See Dada v. Bankole (2008) All FWLR (PT. 403) 1209 at 1220 paras B – C, Onwe V. State (1975) NSCC 375 at 381, Onu v. Idu (2006) All FWLR (pt. 325) 691 at 708 and Eze v. Ene (2007) All FWLR (PT. 361) 810 at 1816. Though as argued by the Respondent that the said Exhibits were admitted without objection, the law is sacrosanct that inadmissible evidence cannot be admitted by consent or collusion. See Ugwu V. Ararume (2007) All FWLR (Pt.377) 807 at 869 paras D-E SC. It was also held in Babatunde V. P.A.S & T.A Ltd (2007) All FWLR (Pt.372) 1721 at 1751 Para A that both the evidence and verdict in the aborted trial ‘are completely inadmissible on the basis that prima facie they have been discarded or got rid of.’ I hereby un-hesitantly hold Exhibits G and H inadmissible and are accordingly expunged.

I agree on all fours with the submission of the Appellant’s counsel in Issue 3 that the trial court believed the contents of the said Exhibits as the truth of what they contain to the prejudice of the Appellant. Indeed, and undoubtedly, these inadmissible pieces of evidence swayed and impregnated the trial judge to believe the evidence and consequently used it against the Appellant thereby occasioning a miscarriage of justice. A few examples here will suffice on how Exhibits G and H affected and influenced his perception, evaluation and judgment in this case. At page 142 para 3, the trial judge found thus:

“Earlier, the police officers who investigated the case stated that the 1st accused has no address at Eket and that he could not even when requested, take them to Eket to verify his alibi.”

Also, at para 2 line 6 of page 145, the trial judge reasoned and queried on the strength of Exhibit H thus: “why did he not take the police to Okon Eket to verify his alibi….” Further in line 12 – 13 of para 2 in page 145 of the Records, the trial judge inquired and ruminated: “1st accused was said to be in the premises of the Sabbath Mission, what was he doing there? Apposite to the above is the case of Onuoha v. State (1989)2 NWLR (PT. 101) 21 at 37 para H wherein the Apex court held:

“…since the learned trial judge used the evidence of Joel Iheanacho to discredit the alibi of the Appellants it follows that he used the said evidence to strengthen, prop up and fortify the case of the Prosecution against the Appellants.”
I resolve this issue in favour of the Appellant.

ISSUE 4:
Whether the Proceedings of the court below were in breach of Section 36(1) & 36(4) – 1999 Constitution of the Federal Republic of Nigeria and therefore null and void (Ground 5)

It is the contention of the Appellant’s counsel that at the address stage of the Appellant’s trial in the lower court, the trial judge did not allow counsel on both sides to address him in open court on their respective cases but rather adopted their written addresses on 15/5/2009 secretly. It is his submission that addresses of counsel form an important part of the criminal trial and must be held in public in compliance with Section 36(4) of the 1999 Constitution. He further argued that the court below did not act pursuant to any request by a Minister or Commissioner that the addresses would not be in the public interest if disclosed. He cited Section 36(4) of the 1999 Constitution and the Criminal Procedure Law, Cap. 31, LFN, 1963. That none of the laws cited provides for adoption of Addresses as done in the instant case. He relied on Alhaji Aminu Mika’ilu v. The State (2001) 5 WRN 74 at 84 Para 35, that the trial was a nullity which invariably has also ousted the jurisdiction of the trial court. He cited Madukolu v. Nkemdilim (1962) 2 SCNJ 341. He further submitted that such an act of a public body not enabled by Statute is void. He quoted C. C. B. v. A. G. (Anambra State) (1992) 10 SCNJ 137 at 167. He again argued that such rights being of public nature cannot be waived, lost or compromised by an accused person either by consent, collusion or ignorance. He relied on Ariori v. Elemo (1983) 1 SCNLR 1.
It is however the argument of counsel to the Respondent that the Order for written addresses to be filed made on 19/3/2009 after the Defence closed its case did not violate Section 36 of the 1999 Constitution.

He submitted that written addresses are meant to hasten determination of cases since in fact, the Appellant had already spent 10 years, 5 months already at the time the Order was made. He relied on Section 36(1) of the 1999 Federal Republic of Nigeria and submitted that the Section envisages that adjudication should be done within a reasonable time. It is his argument that the Defence having not objected to it and subsequent to the Order filed its Address on 2/4/2009 and adopted same on 15/6/2009, it is late for the Appellant’s counsel to dub the proceeding he entirely participated as ‘secret.’ He argued further that address is a privilege and not a right and can be dispensed with. He relied on MFA v. Irongha (2005) All FWLR (PT. 283) 93 at 114. He submitted that Section 294 (1) of the 1999 Constitution vests a right in the parties to make final addresses. Besides, he cited Offor v. State (1999) 12 NWLR 608, on the purpose for written addresses. He argued that the criteria and attributes of fair hearing as provided in Section 36(4) of the 1999 Constitution has been interpreted in RCC Limited v. Okpegboro (2000) 2 NWLR (PT. 645) 365 at 374 Paras A – C. He finally argued that the provisions of Section 36(4) of the 1999 Constitution is concerned with ‘special circumstances’ where it may not be in the interest of justice for evidence to be publicly disclosed.

I have read the arguments and submissions of both counsel on this issue, and will for reference purpose, reproduce hereunder the constitutional provision germane and relied upon by counsel to the Appellant.

Section 36(4), 1999 Constitution of FRN:
“Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal.
Provided that –
(a) A court or such a tribunal may exclude from its proceedings persons other than the parties thereto or their legal practitioners in the interest of defence, public safety, public order, public morality, the welfare of persons who have not attained the age of eighteen years, the protection of the private lives of the parties or to such extent as it may consider necessary by reason of special circumstances in which publicity would be contrary to the interests of justice.
(b) If in any proceedings before a court or such a tribunal, a Minister of the Government of the Federation or a Commissioner of the government of a State satisfies the court or tribunal that it would not be in the public interest for any matter to be publicly disclosed, the court or tribunal shall make arrangements for evidence relating to that matter to be heard in private and shall take such other action as may be necessary or expedient to prevent the disclosure of the matter.”
It is on Record that the defence closed its case on 19/3/2009. See pages 90 – 92 of the Records. It is crystal obvious that trial and evidence also closed on the said date. It is my considered opinion that Section 36(4) refers to 3 basic things and stages in criminal adjudication: (1) fair trial (2) in public (3) within a reasonable time. It must be noted that it has general applicability and common to all classes of criminal adjudication while the exceptions are encapsulated in provisos (a) and (b). While the general provision may apply and affect the Appellant, his case does not come within the exceptions. The exceptions refer to “uncommon criminal cases and accused persons” such as notorious criminals, political criminals, prisoners of war, juveniles or young persons, and all category of accused persons that their personality or trial may constitute threat to the country’s defence, public safety, public order, morality, etc. The Appellant is a common suspect or accused at the trial court and not an “uncommon criminal,” neither did his personality, trial or his case constitute any of the aforelisted threats to the state or country. Thus, there ought not to be a request for his trial not to be held in public.

Be that as it may, the Section refers to trial wherein evidence is taken. See Section 36(4) (b) which provides inter alia “…the court or tribunal shall make arrangements for evidence relating to that matter to be heard in private and shall take such other action as may be necessary or expedient to prevent the disclosure of the matter.” As earlier stated, trial or evidence in this matter was concluded on 19/3/2009. Addresses therefore, do not constitute evidence however brilliantly done but just meant to assist the court in a speedy determination of a case. See Ogugu v. State (1994) 9 NWLR (PT. 366) 1 at 38.

It is on Record that the Appellant’s counsel did not object to the said procedure and thus cannot be heard now to complain having waived same. See Lamurde L. G. v. Karka & Anor (2012) All FWLR (PT. 628). Failure of the court to consider Addresses or even to take them will not be fatal to the case or cause miscarriage of justice and can be dispensed with. See MFA v. Irongha (2005) All FWLR (PT. 283) 93 at 114. Written Addresses are constitutionally encapsulated in Section 294(1) of the 1999 Constitution (as amended). The adoption or presentation of the Defence counsel’s Address was done in the open court (see p. 122 of the Records) and I have not seen any contrary record that it was presented or adopted in secret or chambers. This accords with “fair hearing in public” pursuant to Section 36(4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

I disagree with the Appellant’s counsel that the proceedings of the court below were in breach of Sections 36(1) and 36(4) of the 1999 Constitution (as amended). This issue is therefore resolved in favour of the Respondent.

I must painfully observe that in this Appeal, the evidence against the Appellant is manifestly weak, shrouded with strong doubts and replete with many loose ends that the benefit ought to have been accorded the Appellant. It is uncontestable that an accused person is always entitled to the benefit of doubt – per Kutigi, JSC in Yongo v. C.O.P (1992) 8 NWLR (pt. 257) 36 at 57. See also Almu v. State (2009) 4 MJSC (PT. 11) 147 at 171 Paras F – G. Unfortunately too, the Appellant has paid his due to the society for about 15 years now.

On the whole, notwithstanding the resolution of Issue 4 against the Appellant, this Appeal is meritorious and it is hereby allowed. The judgment of the lower court convicting and sentencing the Appellant to death by hanging delivered on the 8th day of October, 2010 is hereby set aside. Consequentially, the Appellant is hereby discharged and acquitted.

PHILOMENA MBUA EKPE, J.C.A.: I have had the opportunity of reading in draft, the judgment just delivered by my learned brother UWANI MUSA ABBA AJI (PJ), JCA. I agree entirely with the reasoning and conclusion that in spite of the resolution of issue 4 against the appellant, the Appeal is meritorious and is hereby allowed. I however, wish to add a few comments of my own.

On the issue of alibi, it is however trite that an accused person is not required to prove his alibi rather, the onus is on the Prosecution to disprove the alibi. Consequently, once there is the slightest defence of alibi, the plea must be investigated. Failure of the Prosecution therefore, to investigate the alibi raised is fatal to the case of the Prosecution. See the following cases:
1. Sowemimo v. the State (2004) 11 NWLR (Pt. 885) 515.
2. Aiguoreghian v. State (2004) 2 NWLR (Pt. 860) 367.
3. Nsofor v. State (2002) 10 NWLR (Pt. 775) 274.

In the instant case, even though the defence of alibi was timorously raised, the Appellant has also given particulars of his whereabouts which the police could easily have investigated. The Appellant clearly stated thus under cross examination:
“I was at Eket. I told the police I was at Eket. I told the police I was living with my friend Ignatuis Okpara at Okon Eket…”

The police, to my mind could have easily investigated these salient facts. That the Appellant told the police that he was living with his friend at Eket provided the police with a clear line of investigation. They failed to take the bait and even to locate the village where the Appellant and his friend lived.

However, if the Prosecution had provided stronger and more credible evidence before the Court, the Appellant could have been convicted. This also, the police failed to do and thus the defence of alibi succeeds.

For this, and the fuller reasons proffered by my learned brother, I too agree that the judgment of the lower court convicting and sentencing the Appellant to death by hanging delivered on the 8th day of October 2010 ought to be set aside, and I so hold. Accordingly, the Appellant is hereby discharged and acquitted by me.

PETER OLABISI IGE, J.C.A.: I have read before now the judgment just delivered by my learned Brother UWANI MUSA ABBA AJI, J.C.A (PJ) and I agree with the reasoning and conclusions therein.

I agree with the Learned Counsel to the Appellant that the Learned trial judge fell into grave error in relying on Exhibits “G” and “H” which are statements made by witnesses to the Police in the course of investigation. Those statements are clearly inadmissible in evidence in criminal matters. The facts contained in those statements are not evidence against the Appellant. See ITESHI ONWE VS THE STATE (1975) NSCC 375.

A judgment sending a man to the gallows must be based on credible evidence and where as in this case the Prosecution relied on circumstantial evidence, it must point irresistibly to the guilt of the accused that he, and no other person killed the deceased. Circumstantial evidence must be critically examined so that the innocent is not condemned or convicted. See JOSEPH LORI & ORS VS THE STATE (1980) 8-11 SC 81 at 86 where NNAMANI JSC of blessed memory said:
“It is conceded that circumstantial evidence is often the best evidence. It is said to be evidence of surrounding circumstances which by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say it is circumstantial. R. V. Taylor and 2 Ors 21 Cr. App. R.20. See also Rex vs. Chung Y. Miao (1928) shortland Re. cited in Wills on Circumstantial Evidence, Seventh Edition (1936) p. 324 per Humphreys. But 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 the 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 that that of his guilt. Dealing with nature of circumstantial evidence in a case from the Supreme Court of the former British Guyana, Tepper v. Queen (1952) AC. 480 AT 489 P. C. Lord Normand said:
“Circumstantial evidence may sometimes be conclusive, but it must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another. Joseph commanded the steward of his house.
“put my cup, the silver cup, in the sacks’ mouth of the youngest”, and when the cup was found there, Benjamin’s brethren too hastily assumed that he must have stolen it. It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference” (underlining mine)

I am therefore in full agreement that the Appellant be discharged and acquitted.

Appearances

O. N. Ichie, Esq.For Appellant

AND

C. N. Akowundu, Esq. DPP, Imo StateFor Respondent