MICHAEL ASSAH v. THE STATE (2015)

MICHAEL ASSAH v. THE STATE

(2015)LCN/7967(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 15th day of July, 2015

CA/B/290C/2009

RATIO

CRIMINAL LAW: THE OFFENCE OF MURDER; THE ESSENTIAL INGREDIENTS OF THE OFFENCE OF MURDER
It is settled law that in a trial for the offence of Murder, there are essential ingredients of the offence that the prosecution must prove. They are stated as follows:-
1. That a person had died
2. That the accused person caused the death of the person now deceased
3. That the act of the accused was done with the intention to cause death or grievous bodily harm, or that the accused knew that death or grievous bodily harm was a probable consequence. See Uwagboe v The State (2008) 12 NWLR (Pt.102) 621 SC, Edoho v State (2010) 14 NWLR (Pt.1214) 651 S.C; (2010) LPELR-1015 SC, Igabele v State (2006) 6 NWLR (Pt. 975) 100; (2006) LPELR-144 SC, Omini v State (1999) 12 NWLR (Pt. 630) 168.
It has also been settled that all these ingredients must be present simultaneously and where one is absent or cannot be clearly answered, the charge cannot be said to have been proved. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.

EVIDENCE: CIRCUMSTANTIAL EVIDENCE; WHEN CIRCUMSTANTIAL EVIDENCE CAN BE RELIED UPON TO PROVE THAT THE OFFENCE WAS COMMITTED AND THAT THE ACCUSED COMMITTED IT

Coker JSC stated in Ugwu & Anor v. The State (1972) 1 SC (Reprint) 89, (1972) LPELR-3327(SC) that:
“it is not being said that every shred of evidence does by itself point to the guilt or complicity of the appellant, but the force of circumstantial evidence lies in the unmistakeable aim of the totality of evidence which by an undersigned coincidence points in that direction.” Also Karibi-Whyte, JSC stated categorically in Yongo V C.O.P (1992) NWLR Pt. 257 Pg. 36; (1992) 4 SCNJ 113, (1992) LPELR-3528 (SC) as follows:
“Our law on circumstantial evidence is well settled. The circumstances relied upon should point unequivocally, positively, unmistakably and irresistibly to the fact that the offence was committed and that accused committed it” per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.

EVIDENCE: BURDEN OR ONUS OF PROOF IN CRIMINAL CASES; CIRCUMSTANCES WHERE THE BURDEN OR ONUS OF PROOF RESTS ON THE ACCUSED INSTEAD OF THE PROSECUTION IN A CRIMINAL CASE AND WHEN DOES THE LAST SEEN THEORY COME INTO PLAY

In Jua v. The State (2007) LPELR -8759, this Court held that even though the onus of proof in criminal cases always rests squarely on the prosecution at all times, the last seen theory in the prosecution of murder or culpable homicide case is that where the deceased was last seen with the accused, there is a duty placed on the accused to give an explanation relating to how the deceased met his death. In the absence of any cogent explanation, the Court is justified in drawing the inference that the accused killed the deceased. This principle of evidential burden has been given stamp of higher judicial authority by the apex Court in Adepetu v. The State (1998) 7 SCNJ 83, Adeniji v The State (2001) 5 SCNJ 371. Jua V. The State above was affirmed by the Supreme Court in Jua v. The State (2010) 4 NWLR Pt. 1184 pg. 217; (2010) LPELR – 1637 (SC). The apex Court held categorically that it is because it is not every case of murder that can be proved by eye witness. In fact that is the essence of the jurisprudence of circumstantial evidence. The last seen theory is one of the branches of the jurisprudence of last seen theory in murder or culpable homicide cases. In Madu v. The State (2012) LPELR-7867 (SC), the Supreme Court approved the Indian case of Rajashkhanna v State of A.P. (2006) 10 SCC 172 were the Indian Supreme Court noted as follows:
“The last seen theory, comes into play when the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible”. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

Between

MICHAEL ASSAH Appellant(s)

AND

THE STATE Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice F.O. Ohwo delivered on the 22/7/09 at High Court No.1 Ughelli, Delta State, wherein the Appellant was convicted for the murder of one Christopher Ojeabulu and sentenced to death by hanging. The facts that led to this are as follows:
The Appellant was arraigned before the Court on a one count charge, to wit:
STATEMENT OF OFFENCE
Murder punishable under Section 319(1) of the Criminal Code Cap. 48, Volume II Laws of the defunct Bendel State of Nigeria, 1976.

PARTICULARS OF OFFENCE
Michael Assah (m) on the 18th day of August, 2002 at Ughelli, within the Ughelli Judicial Division, murdered one Christopher Ojeabulu (m).

The Appellant pleaded not guilty to the charge read. To prove its case, the prosecution called three witnesses. P.W.1 Bose Iretegbe is a woman police constable serving in the same division as the Appellant, who was on night duty the night the deceased was murdered, but had gone to the toilet at the material time in question. P.W.2 Joseph Ekomaye is a Police Corporal who served in the same division as the Appellant and to whom the case of sudden and unnatural death was reported to by the Appellant. P.W.3 Patrick Akpomreta is an Assistant Superintendent of Police attached to Ekiti State Police Command at the material time, who received a petition written by one Barrister F.B. Olorogun on behalf of one Joseph Ojeabulu in respect of the killing of his son, the deceased in this matter. He eventually investigated the petition. Appellant gave evidence in his own defence and called no witnesses. At the end of the trial, the Appellant was convicted and sentenced to death.

Dissatisfied with the judgment of the trial Court, the Appellant filed a notice of appeal and an amended notice of appeal on 24/4/13 containing ten grounds against his sentence and conviction. The Appellant’s brief of argument is dated 25/8/2009 and filed on the 7/9/2009. The Respondent’s brief of argument was filed on 9/4/2010, but deemed filed on 17/6/10.

Appellant in his brief settled by Chief A.P.A. Ogefere identified five issues for determination:
1. Was the case of murder established against the appellant beyond reasonable doubt as required by S. 138 of the Evidence Act before the trial Court convicted him for Murder and sentenced him to death by hanging? (Grounds 1, 4 & 7)
2. Was there cogent and convincing evidence in support of the finding that the act of the appellant in firing Ex D, caused the deceased’s death as required by law? (Ground 3 & 5)
3. Whether the evidence of the witnesses are not so materially inconsistent and contradictory as to be unsafe to rely on them to convict and sentence an accused to death in the circumstance of this case? (Ground 8)
4. Was the inability/failure of the prosecution to call material witnesses in the circumstance of this case not amount to suppression of evidence/miscarriage of justice warranting the invocation of the presumption in S.149(d) of the Evidence Act and the setting aside of conviction and sentence (Grounds 2 & 9)
5. Whether the trial judge misdirected itself on facts and law which misdirections occasioned grave miscarriage of justice? (Ground 10).

In the Respondent’s brief settled by Chief Victor E. Otomiewo, two issues were identified for determination:
1. Whether the prosecution proved the charge of murder beyond reasonable doubt.
2. Whether the failure to call as a witness, the wife of the deceased is fatal to the prosecution’s case?

After a careful perusal of the briefs filed by both parties, I have to say that there is only one issue for determination. Most of the Appellant’s issues are repetitive, as issues 1-5 will be satisfied by the same answers. The sole issue for determination is as stated below since all other issues will be addressed in answering one question:

SOLE ISSUE
Whether the prosecution proved the charge of Murder against the Appellant beyond reasonable doubt.

Appellant’s counsel submitted that murder under S.319 of the Criminal Code Cap 48 LBSN 1976 applicable to Delta State was not proved. S.138 of the Evidence Act requires proof of the charge beyond reasonable doubt. Counsel argued that to attain the statutory standard, each and every element must have been proved, successfully passed the filtration of admissibility, and that the benefits of all doubts have been appropriately given to the Appellant and what is left can still withstand the test of proof beyond reasonable doubt.

Counsel argued that the Appellant was not given the benefit of proof beyond reasonable doubt since the evidence on record was not in support of the finding of the trial court that the death of the deceased was the intentional act of the Appellant. Counsel insisted that the alleged weapon of choice, the gun and bullets issued to the Appellant were returned intact as per the Arms Movement Register. Counsel said the fact that P.W.3 did not state that any ammunition was issued to the Appellant, nor could P.W.1 who was on duty at the same station hear any gunshot on the day the act was committed, exonerated the Appellant since there is no evidence of bullet being fired from Exh D. Counsel cited Namsoh v State (1993) 5 N.W.L.R. (Pt.292) 129 at 143.

Counsel argued that there was no evidence that the wound allegedly found on the deceased could have emanated from Exh D, and even if there is expert evidence that the wound is consistent with the type of bullet issued to the Appellant, it is the duty of the prosecution to prove that the Appellant did not return all the bullets issued to him. Counsel posited that it is the duty of the prosecution to prove who shot the deceased, hence, it is the prosecution’s duty to prove that Exh D was intentionally and wrongfully fired by the Appellant and caused the fatal wounds alleged in Ex A and that the Prosecution had failed to do so. Counsel submitted that the onus of proof on the prosecution does not shift, and cited Adekunle v State (1989) 5 N.W.L.R (Pt.124) 505 at 685, State v Emine (1992) 7 N.W.L.R (Pt. 256) 658 at 674, Alabi v State (1993) 13 A LRCN 977 at 993, Adekunle v State (2006) 14 N.W.L.R (Pt. 1000) 717 at 742, Akpa v The State (2008) 6 ACLR 514 at 530.

Counsel said that there is a break in link between the fatal injuries and any action of the Appellant. Counsel cited The State v Uzuagwu & Ors (1972) 2 ESCLR Pt. 2 429 at 434, Onah v State (1985) 12 S.C. 59 at 79-83, Onafowokan v State (2008) 6 ACLR 461 at 471.

Appellant’s counsel complained that the evidence given by the Prosecution witnesses are contradictory on material elements of the offence of Murder charged, so much so that the trial judge had to explain some of the inconsistencies on their behalf.

Counsel said it is the duty of the Prosecution to lead evidence to prove the charge beyond reasonable doubt devoid of contradictions and inconsistencies. He insisted that there were material inconsistencies in the testimonies of the Prosecution witnesses as to the cause of death of the deceased. These inconsistencies were never explained by the prosecution. Counsel cited R V Oledinma (1940) WACA 202, Ogoala v The State (1991) 2 NWLR Pt. 1755 Pg 509 at 525, Asanya v The State (1991) 3 N.W.L.R Pt 180, Pg 422 at 446.

Counsel conceded that although one witness whose evidence is credible and acceptable is sufficient to ground a conviction and the prosecution has the discretion to decide which witnesses to call, however, in this case, the prosecution’s refusal to call the wife of the deceased and the medical doctor who examined the body of the deceased should be held to be adverse to the prosecution’s interest since the matter was initiated by a petition. Counsel cited S.149(d) of the Evidence Act, R v Essien (1938) 4 WACA 112 at 113, R v Enema (1941) 7 WACA 134, R v Kuree (1941) WACA 175 at 177, R v Adenjimah & Anor (1942) 8 WACA 193 at 194. Counsel submitted that the trial Court made material assumptions against the Appellant and that the Court misdirected itself on the law. Counsel cited Chidiak v Laguda (1964) 1 ANLR 169, R v Ogude (1936-7) 13 NLR 178 at 182.

In response, the Respondent’s counsel, Chief Otomiewo who was Attorney-General and Commissioner of Justice Delta State at the time argued, that the prosecution has proved the charge of murder beyond reasonable doubt, and the learned trial judge was therefore right in finding the Appellant guilty as charged.

Respondent’s counsel conceded that though the onus is on the prosecution to prove the offence beyond reasonable doubt, and since the Appellant was charged with the offence of Murder, it is necessary for the prosecution to establish the ingredients of the offence of Murder already set out in this judgment.

Counsel cited Ogba v The State (1992) 2 N.W.L.R (Pt.222) 164 at 198 para g, Gira v The State (2001) 4 N.W.L.R (Pt. 443) 375.

Counsel stated that it is clear that the deceased had died and what is really in question is whether the death of the deceased had resulted from the action of the Appellant and if the answer is in the affirmative, whether the Appellant knew or intended that such act would cause death or grievous bodily harm to the deceased.

Counsel posited that a man who fires a gun at a person whether on his chest or leg is deemed to intend the natural consequences of his action, which is to kill or cause grievous bodily harm. Therefore, the Appellant intended to either kill or cause grievous bodily harm to the deceased. Counsel cited Abogede v The State (1996) 4 SCNJ 223 at 233.

Counsel submitted that the choice of weapon and force used in this case was excessive since the deceased was in handcuffs when the appellant took him out for his statement, and if the deceased had indeed been shot while trying to escape, he would have been shot from behind. Counsel cited Barba v The State (2000) FWLR (Pt. 24) 1448 at 1459.

Counsel further submitted that the evidence of the Appellant on page 98 of the record is an afterthought and the post mortem report (Exh A) tendered through PW2, the Investigating police officer was rightly admitted under Section 42(1) of the Evidence Act. Counsel urged this Court to note that neither the Appellant nor his team of lawyers objected to the admissibility of the document, nor requested that the maker be called as a witness. Counsel submitted that Appellant cannot complain if the trial judge did not call the medical officer who signed the death certificate.

Counsel submitted that this is an instance of extra-judicial killing where the Appellant, a policeman, arrested, acted as judge, jury and hangman against the deceased, which will still be a crime even if the deceased were indeed a thief. Counsel cited Irek v The State (1976) 4 SC 65 at 68, Enakeru v The State (1984) 9 SC 17 at 19. Counsel submitted that the learned trial judge was right in holding that the Prosecution had proved its case beyond reasonable doubt.

Counsel submitted that failure to call the wife of the deceased is not fatal to the prosecution’s case as there is no requirement to call a host of witnesses but merely enough to prove its case. Counsel cited Adaje v The State (1979) 6-9 SC 18 at 28, Okonofua v The State (1986) 6-7 SC 1 at pp 17-19 and Section 179(1) of the Evidence Act, Cap E14, Laws of the Federation, 2004.

Counsel further submitted that the prosecution did not call the wife of the deceased since there is no evidence she was present during the time of the shooting. Exh F was only tendered to show not a petition was written to the police. Counsel cited Ogbodu v The State (1987) 2 NWLR (Pt.54) 20. Counsel argued that the Defence was at liberty to call the wife if her evidence would be useful to its case. Counsel submitted that there are no contradictions in the Prosecution’s case. Counsel cited Durugo v State (1992) 7 NWLR (Pt. 255) 525 at 535, para f. Counsel urged this Court to dismiss the appeal and to affirm the judgment of the trial Court.

Resolution
It is settled law that in a trial for the offence of Murder, there are essential ingredients of the offence that the prosecution must prove. They are stated as follows:-
1. That a person had died
2. That the accused person caused the death of the person now deceased
3. That the act of the accused was done with the intention to cause death or grievous bodily harm, or that the accused knew that death or grievous bodily harm was a probable consequence. See Uwagboe v The State (2008) 12 NWLR (Pt.102) 621 SC, Edoho v State (2010) 14 NWLR (Pt.1214) 651 S.C; (2010) LPELR-1015 SC, Igabele v State (2006) 6 NWLR (Pt. 975) 100; (2006) LPELR-144 SC, Omini v State (1999) 12 NWLR (Pt. 630) 168.
It has also been settled that all these ingredients must be present simultaneously and where one is absent or cannot be clearly answered, the charge cannot be said to have been proved.

On the first element, it is clear that the deceased is dead, there is no contention about this. P.W.2 gave clear evidence that it was the Appellant who identified the corpse of the deceased by name to him. This evidence was not contested during cross examination. In the Appellant’s own evidence before this Court, Appellant had admitted the death of the deceased.

It is in resolving the other elements that there is need for more careful reasoning. At this point I will review the evidence of the witnesses on record.

The first prosecution witness, P.W.1 Bose Iretegbe is a woman constable who was on duty on the day of the incident. She gave evidence that on the day of the incident, the Operation “Fire-for-Fire” team led by Inspector Dennis Isek had gone to the charge room to report a man who was driving a Mitsubishi bus but had refused to stop for search when asked by one Sergeant Brownson, and had dragged the AK 47 Rifle with the said Sergeant. The driver had eventually driven away with the Sergeant from the point of search. The team reported that they entered their patrol vehicle and chased the bus driver until they caught up with him and took him back to the station. P.W.1 said the driver’s name was given as Christopher Ojeabulu. The matter was entered and referred to Crime Section for investigation. The suspect was left at the station while some police officers went to investigate the scene of the crime. P.W.1 said that at about 0400hrs, the suspect noticed that the station was quiet and escaped, pushing her and the Charge Room Officer (C.R.O.) while making a run for it. P.W.1 said the C.R.O informed the Civil Defence Service in the area about the escape and at about 0445hrs, the Civil Defence men sent word that the suspect had been captured and Police Officers from the station went to pick up the suspect. P.W.1 did not hear any gun shot at the station on the day of the incident.

P.W.2 one Joseph Ekonoye is a Police Corporal attached to the “A” Division, Nigeria Police in Warri. He gave evidence to the effect that the Appellant was a police officer and he had known him for a while. P.W.2 said he had been assigned a case of Sudden and Unnatural Death on 18/8/2002 for investigation. During the course of his investigation, the Appellant identified the corpse of the deceased to him by name about 20 feet from the charge room. P.W.2 took the corpse to Ughelli Central Hospital for post mortem on the same day and was issued a post mortem report tendered and marked Exh A. P.W.2 said he also obtained a voluntary statement from the Appellant during the course of his investigation which was marked Exh B. He also got a statement from the C.R.O. P.W.2 was absent when the deceased died.

P.W.3 Patrick Akpomreta is an Assistant Superintendent of Police presently attached to Ekiti State Police Command. He had worked with the Appellant before, when Appellant was attached to the homicide section of the State C.I.D. In 2002, while P.W.3 was Inspector of Police. P.W.3 said he received a petition on behalf of one Joseph Ojeabulu, the father of the deceased in respect of the unlawful killing of the deceased. During his investigation, P.W.3 saw the case files of the deceased’s charge for robbery being investigated by the Appellant and another report on the sudden and unnatural death of the deceased being investigated by P.W.2. P.W.2 and the Appellant were invited to the Police Station and both made voluntary statements at the Police Station. P.W.3 identified the Appellant’s statements marked as Exh C, C1 and C2 which he obtained in the course of his investigation. P.W.3 identified a Beretta Rifle which was issued to the Appellant according to the CTC of the Arms and Ammunitions Movement Register which CTC had been made available to him for perusal. The rifle was tendered and marked Exh D. P.W.3 said he obtained statements from the wife of the deceased and other policemen who were present on the day of the incident and these statements were in the case file. He said there is nothing in the case file to the effect that the deceased and the Patrol team on duty had any argument, and that he didn’t know if the deceased had injuries on his chest and abdomen. He identified the petition that necessitated the investigation and said there were no bullet holes in the bus driven by the deceased on the night in question. P.W.3 admitted he did not believe the deceased escaped from police custody.

The Appellant states that Exh B was what he made as a complaint in case of sudden and unnatural death of the deceased on 18/8/02. The second Exh C was the statement he made after he was formally charged with the murder of the deceased on 29/8/02. He made Exh C1 and C2 on 6/9/02 and 19/9/02 respectively. Finally he gave evidence on oath in his own defence. Thus, the Appellant has five statements on record.

In Exh C made on 29/8/2002, the Appellant said he was attached to the Anti-Crime Section of Ughelli Police Division. Appellant said that on 18/8/2002 at about 0200hrs, he was on duty when a case of attempt to commit robbery was reported by Inspector Dennis Isek in Ughelli Division attached to Operation Fire for Fire against the Deceased. The report was referred to the Appellant for investigation. Appellant left for the scene of the alleged crime. At the scene, a Ford Econovan Bus was recovered and kept at Agbarha Otor police post for safe keeping. The suspect was arrested and three live cartridges, and one wrap of weed suspected to be Indian hemp were found in his possession. Suspect also had a bullet wound on his right hand. Suspect was taken back to the station and identified as Christopher Ojeabulu- the deceased. Appellant said that at the Station, the C.R.O later reported that the suspect had escaped from lawful custody and all efforts made to rearrest him proved abortive. The Patrol team went round and told the Civil Defence guards within Ughelli about the escaped. The wife of the suspect was then invited to the station to inquire about the whereabouts of her husband. Information later came that the suspect had been rearrested by members of Civil defence guard on duty at about 0400hrs. Appellant took the suspect to take his statement, the Appellant attacked him and escaped and he shouted for reinforcement to search for the suspect in the nearby bush. He was shot on the leg, but he died on the way to the hospital. Appellant then initiated a case of Sudden and Unnatural Death (S.U.D) and left with one Inspector John Ijeani, another Anthony Samson and the wife of the suspect now deceased to the house of the deceased.

In the third statement, Exh C1 made on 6/9/2002, Appellant added that the Patrol team went to the house of the suspect where the wife of the deceased told the team the deceased had gone out, and that he was a transporter. He insisted that the search carried out on the premises of the deceased was lawful. Appellant also said he was attacked by the deceased before he absconded, and that when he saw him in the nearby bush, he aimed and fired a gunshot to his leg where the deceased fell and was rushed to the hospital. Appellant said he did not put the deceased in handcuffs because of the bullet wound he sustained from his initial arrest.

In the fourth statement, Exh C2 which was made on 19/9/2002, Appellant added that the wife of the Deceased was arrested but she said she did not know the whereabouts of her husband and was taken to the Police Station. Appellant said it was the next day that he and the Patrol team went to conduct a search on the premises of the deceased and items were recovered and the wife of the deceased opened the door for the team.

In his defence in Court which I consider his fifth statement, Appellant said he knew the deceased named Christopher Ojeabulu who was a dismissed Police Officer whose case had been referred to him for investigation by one Inspector Dennis Isek who handed him over with 3 wraps of weed and 2 live cartridges. Appellant obtained statements from Inspector Isek and one Sergeant Blankson and left for the scene of the crime. On his return, the C.R.O one Inspector Sunday reported that the deceased had sustained bullet wound and was detained behind the counter but had escaped. Appellant went in search of the Deceased with members of the Patrol team on duty, but did not find the Deceased and the matter was reported to nearby Vigilantes in case they saw the deceased. At about 5am, he saw that the Vigilantes had brought the deceased to the station. Appellant was taking down the statement of the deceased when the deceased bolted and the Appellant shouted for help. After a search of the station, they later found him on the ground, unconscious and took him to hospital where he eventually died. Appellant reported the matter as Sudden and Unnatural Death after which a signal was sent to the state headquarters. Two weeks later the file was taken over by the State CID, Asaba based on the petition received from the father and wife of the deceased. The Appellant said he did not fire any gun at the deceased. On cross examination, Appellant admitted that he was in Court when Exh C, C1 and C2 were tendered, that he went through an orderly room trial by the police but was not given the result of the trial. Appellant said he was not aware that he had been dismissed from the Nigeria Police. He agreed that the Deceased was in handcuffs when he took him for questioning (Pg.99 line 25). Appellant denied he was armed on the day in question and stated that the deceased already had a bullet wound in his hand. Appellant said P.W.1 was at the station when he raised alarm but he cannot remember the number of policemen who joined him to search for the deceased, nor the names of any of them.

From the above, it is clear that the Appellant has refuted assertions that he caused the death of the deceased in every way he can. None of the witnesses called by the Prosecution witnessed the incident that led to the death of the deceased.

As I said earlier, there is no contention about the fact of the death of the deceased. The Appellant admitted same during the trial and that finding by the trial Court is hereby upheld.

The next question is whether the death of the deceased was the result of an act of the Appellant. None of the three witnesses called by the prosecution could give a precise account of the incident that led to the death of the deceased. I have to mention, as the learned trial judge observed in his judgment, that the fact that the Appellant was a serving Police Officer and the deceased a dismissed Police Officer, made the trial unique in that the police officers who were the only witnesses called by the prosecution were frugal with details about the entire circumstances of this case. P.W.2 said that he investigated the case of “sudden and unnatural death” of the deceased which occurred near the charge room of the Ughelli Police Station. The Appellant was the one who took P.W.2 to the corpse of the deceased and indentified him by name. The evidence of the Appellant, P.W.2 and P.W.3 tallies on the issue that the Appellant was the one investigating the deceased who was charged with attempt to commit Armed Robbery. The Appellant made several statements. The thread which runs through all the statements is that the Appellant was the last person to see the deceased alive. Exh A is the Doctor’s Report called the Death Report to Coroner. It states that the deceased died of gunshot wounds to the chest and abdomen. Learned Appellant’s counsel contested the report on the basis that the maker did not tender it. Having not challenged that point during trial, and the document being a relevant and admissible one, the Appellant’s counsel cannot complain at this stage.

The Appellant’s argument is also that Exh D issued to the Appellant as per the Arms Movement Register (RP73) item 21 thereof on 17/8/02 with 10 rounds of bullet were both returned intact on 29/8/02. P.W.3 testified about the gun thus on page 91 of the record:-
“A Beretta Rifle No. M38515 which was issued to the Accused was recovered from him. I got to the Rifle though a Certified true copy of the Arms and ammunition movement register. The register showed the Rifle was issued to Accused on 17/8/2002 and returned 20/8/2002. I Certified the Register while the original register was in my position. I can identify the Rifle issued to the Accused at the material time. It is a Beretta Rifle (identifies Rifle) Ammunitions were issued to the Accused when the Rifle was issued.”

Contrary to the claim of the Appellant’s counsel, no questions were asked and no answers proferred on whether or not the number of ammunitions issued were returned intact by the Appellant. Suffice it to say however that the movement register for ammunitions shows that the Appellant returned the bullets intact. That is the evidence in favour of the Appellant.

Learned Appellant’s counsel argued that there is a complete break in the link between the fatal injuries on the deceased and any action of the Appellant. Learned counsel had insisted that any lingering doubt must be resolved in favour of the Appellant. He cited Adekunle V State (1989) 5 N.W.L.R. Pt 124, 505 at 685; State V Emine (1992) 7 N.W.L.R. Pt 256, 658 at 674; Alabi V State (1993) 13 ALRCN 977 at 993, Adekunle V State (2006) 14 N.W.L.R. Pt 1000, 717 at 742, Akpan V the State (2008) 6 ACLR 514 at 530. The ratio in these cases is that the question as to where the onus of proof lies in criminal cases is a constitutional issue by virtue of the constitutional presumption of innocence of the accused until proved guilty in S.33(5) CFRN 1979. In the State v Uzuagwu & Ors (1972) 2 ECSLR Pt. 2. 429 at 434. Onah V State (1985) 12 S.C. 59 at 79-83.

Learned Appellant counsel urged us to find that the Appellant did not shoot the deceased because no one saw him do so and P.W.1 who was at the police station did not hear a gun shot.

The learned trial judge reasoned that since the evidence of P.W.3 was not challenged under cross examination, he was bound to make a finding that as at 18/8/2002 when the deceased was shot and killed at the police station, the Baretta rifle was in possession of the Appellant. I can find no fault with this finding of fact. The Ammunition Movement Register shows that the Baretta Rifle was issued to the Appellant on 17/8/2002, a day before the deceased was killed and returned by the Appellant on 20/8/2002, two days AFTER the deceased died. Once there is no contrary evidence of a fact or if the evidence is not challenged in cross-examination, a Court can act on it. See LSDPC & Anor V. Nig. Land & Sea Foods (1992) NWLR Pt. 243 Pg. 620, (1992) CPEL-1744 (SC).

I also find that he was in possession of the gun during the period in issue. The deceased was killed on 18/8/02 while the Appellant returned the gun two days after. The learned Appellant counsel argued that there is no ballistic report to show that the particular bullet from the rifle issued to the Appellant killed the deceased. He also argued that there is no evidence to show that the Baretta Rifle issued to the Appellant caused the particular bullet wounds on the body of the deceased. Counsel argued that the learned trial judge wrongfully assumed that the Baretta killed the deceased. It is clear at least to me, that the Appellant is grasping at straws to stand. The circumstances of each case would dictate the necessity of the quantum of evidence led by the prosecution to secure the conviction. In spite of the fantasies propounded by learned Appellant counsel, there is no evidence to support the contention that several guns were fired by other policemen on the deceased to warrant an enquiry as to whether or not the particular bullet from his own gun caused the fatal injuries. The defence in my view is a non-starter. As I said earlier, there appears to be no eye-witness to the death of the deceased. We must therefore have recourse to circumstantial evidence to enable this Court make a finding on who caused his death. Afterall it was not a bolt of lightning from heaven which killed him. Coker JSC stated in Ugwu & Anor v. The State (1972) 1 SC (Reprint) 89, (1972) LPELR-3327(SC) that:
“it is not being said that every shred of evidence does by itself point to the guilt or complicity of the appellant, but the force of circumstantial evidence lies in the unmistakeable aim of the totality of evidence which by an undersigned coincidence points in that direction.”

Also Karibi-Whyte, JSC stated categorically in Yongo V C.O.P (1992) NWLR Pt. 257 Pg. 36; (1992) 4 SCNJ 113, (1992) LPELR-3528 (SC) as follows:
“Our law on circumstantial evidence is well settled. The circumstances relied upon should point unequivocally, positively, unmistakably and irresistibly to the fact that the offence was committed and that accused committed it”

During the evidence of the Appellant on oath, he retracted the statements in Exh C1 and C2 claiming that they were dictated to him. The record shows that when they were sought to be tendered, he did not retract them in any manner. Either by claiming that they were not voluntarily made, in which case there would have been a trial within trial to determine its admissibility or a retraction to say it was dictated or he didn’t sign etc to him in which case it would have been noted that even though the retraction did not affect the admissibility of statement, it was made at the earliest opportunity, and the Court would be put on notice as to the weight to attach to it. In Ehot v The State (1993) 5 SCNJ 65 at 76, Belgore JSC held as follows:
“An Accused person confronted in Court by the prosecution that he made a statement voluntarily must make his stand clear. Either that he did not make the statement in which case the Court will rule after submission by both parties or that it was not voluntarily made due to some duress, undue influence, coercion or some promises of temporal nature etc. In the former case, the Court may admit the statement in evidence and will assess its weight in the final decision. In the latter case, the voluntariness must be tried by what is commonly called trial within trial and if found to have been made voluntarily, it is admitted in evidence, if not, it is rejected as evidence.”

During the trial, the Appellant’s counsel suggested to P.W.3 that HE -P.W.3 had dictated Exh C1 and C2 to the Appellant. During his evidence on oath, the Appellant testified that it was the officer in charge of the State CID Asaba who dictated statements to him and ordered him to record them. As the learned trial judge did not believe him, I do not also believe the Appellant that statements were dictated to him by anyone. Be that as it may, I will limit myself to the examination of Exh ‘B’ and ‘C’ which the Appellant himself identified and admitted making on oath before the trial judge. The relevant portion of Exh B reads as follows:
“At the station, I took the suspect (deceased) for statement taking, he escaped for (sic) my hand and all effort made to re-arrest him proved abortive later he was found heading towards the near by bush, he was aimed and shot on the leg he fell and was arrested. He died before reaching the Hospital while the corpse has been deposited at the General Hospital Ughelli waiting for post mortem examination. I came back to the station and a case of S.U.D. was incidented.”

In Exh C, the Appellant stated as follows:
“At about 0400hrs, I took the suspect (deceased) for statement taking, he attacked me and he escaped. I started shouting for re-enforcement the available men to search for escapee in the near by bush, he was seen and pursued in order to re-arrest him. He was shot on the leg, however he died on the way to the General Hospital. A case of S.U.D. was incidented and referred to D.C.B. for investigation. I made my statement to the I.P.O. At about 0735 hrs of 19/8/02, I reported and left with my Insp. Crime John Ijeani and Sgt. Anthony Samson together with the wife of late Christopher Ojeabulu ‘m’ for execution of search warrant in the house and premises of suspect. During searching, six Daning (sic) table chairs, two single chairs, one double chair, three stools, one Daning table and one centre table were recovered to the station and I registered them as an (sic) exhibits….”

The above statements shows that the Appellant was there when the deceased was shot. It is similar to the statement in Exh B except that he added that the deceased attacked him before his bid to escape. The fact remains that only the Appellant appears to have been present when the deceased was killed. From his first four statements ‘B’, ‘C’, ‘C1’ and ‘C2’, he did not mention any other person or police officer who was with him when he was questioning the deceased in the statement room, when he pursued the deceased and when the deceased was shot. He kept on using the phrase “he was shot…” as if a phanthom spirit appeared at the police station to do the dastardly deed. The Appellant’s version strains the credulity of a fool. From the evidence of the Appellant himself, he was the last person to see or be seen with the deceased. He was the one taking his statement just before “he was shot…” and later died before he reached the hospital.

It must be emphasised that in every criminal trial, the onus placed on the prosecution is to prove all the essential elements of the offence against the Appellant beyond reasonable doubt. On the other hand, in some instances, the burden shifts to the accused to raise reasonable doubt in the mind of the Court by adducing evidence of facts peculiarly within his knowledge. For example, by giving prompt evidence of alibi, evidence of insanity, evidence of what happened to the deceased who was last seen with the accused. The burden on the Appellant is to merely raise reasonable doubt in the mind of the Court as to the guilt of the Appellant. He is not required to prove beyond reasonable doubt that he did not kill the deceased, but to give evidence that other credible circumstances might be responsible for the death of the deceased. In this case, the Appellant did not put up a defence at all at the trial Court. No explanation was revealed from his various statements and his evidence on oath from which a Court can ferret out a defence no matter how flimsy.

The Appellant admitted under cross-examination that the deceased was handcuffed while his statement was being taken before he allegedly “bolted.” And “he was shot.” In any event, let us assume that the deceased who was being investigated for attempted armed robbery attempted to run away while in handcuffs, killing an unarmed thief is murder and not manslaughter. See R v Udo Ndo Odet Obot 14 (WACA) 352; Akinsulire Basoyin v. A.G. Western Nigeria (1966) NWLR 287, Inakeru v. The State (1984) 9 SC 17 at 19; Ibikunle v. The State (2007) 1 SCNJ 207.

The learned Appellant’s counsel made heavy weather of what counsel called material contradictions in the evidence of the prosecution witnesses. Counsel insisted that the evidence of P.W.2 contradicted that of P.W.3 and that the contents of the petition Exh F contradicted the evidence of the prosecution witnesses. I have read the evidence of both witnesses. I cannot find any contradiction. The learned trial judge also did not find any contradiction. Two pieces of evidence contradict each other when they are by themselves inconsistent or affirms the opposite of what the other evidence stated. P.W.2 and P.W.3 were not eye witnesses to the shooting of the deceased. Even if as investigators who investigated the shooting and who gave different stories of the part they took in the various stages of investigation of the shooting of the deceased, their evidence cannot be contradictory. It was the duty of the Appellant’s counsel during cross examination to bring out the material inconsistencies in the evidence of the prosecution witnesses. The cross examination in this case was perfunctory. It has been said that the effect of a failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness. I find no merit in that argument.

Learned Appellant counsel argued that the wife of the deceased who wrote Exh F- the petition to the police should have been called as a witness, since the contents show that the deceased was killed by several policemen. He argued that S.149(d) of the Evidence Act should be activated in favour of the Appellant to set aside the conviction. That argument in my humble view is completely misconceived.

Exh F cannot be taken as the truth of its contents since it was tendered merely to prove that a petition was written to protest the killing of the deceased by a firm of solicitors on behalf of his family. The prosecution is not bound to call any particular witness to prove its case. If the defence needed a witness it was the duty of the defence to secure the attendance of such a witness – even a hostile one in order to have the opportunity to cross-examine the witness. I agree that a material witness will settle the matter one way or the other. If the wife of the deceased was a material witness who would shed light on the incident to establish the innocence of the Appellant, then the Appellant should have called her as a witness.

I am of the view that the circumstantial evidence points irresistibly to the guilt of the Appellant who shot the deceased who was unarmed and handcuffed at the time. Since a man is presumed to intend the probable consequence of his actions, the shooting of the deceased in the chest and stomach shows that the Appellant intended the natural consequence of his action which was the death of the deceased.

The hearsay evidence of P.W.1 who was not at the scene is that the deceased struggled with an officer when he was stopped on the highway. This led to a fracas and he was arrested and charged with attempted armed robbery. That was the road to Golgotha for the deceased. Let me quote the learned trial judge on page 132 of the record.
“In Agbo V The State (supra) the Appellant contended that it was during a struggle with the deceased for the possession of his gun that the gun accidentally fired. At pages 857 and 858 of the report, Mukhtar J.S.C. had this to say:
“situations like this whereby policemen rashly bring out their guns (albeit to merely threaten or frighten citizens) is rapidly becoming rampant. They are meant to use the guns to safeguard the lives of the citizenry they are paid to protect but the reverse is the case. A policeman will not hesitate to pull the trigger of his gun at the slightest provocation and would indeed do that with relish and reckless abandon not caring whether the consequence of his act will be fatal… In fact the mere fact that he deemed it necessary to bring out a gun from where ever he had kept it is enough act of recklessness even if no shot was fired… I believe such rash acts must be stopped to prevent innocent human lives from being wasted.”

I have to adopt the well thought out obiter of the learned trial judge on page 133 of the record as mine.
“In the present case before me, the accused from his statements voluntarily made as Exhibits ‘B’ and ‘C’ in this proceedings did not shoot thoughtlessly at the deceased. He took an aim. He shot and killed the deceased. What did he do thereafter? He went to the charge room to make a report of “sudden and unnatural death” and thereafter identified the corpse of the deceased which he had dumped about 20 feet from the charge room. That was not all, he tried to paint the deceased a criminal in his statement to the police thereafter. As a matter of fact Exhibit ‘C’ shows the Accused continued investigating a non existent charge of attempted robbery against the deceased even after he had killed him. I have said nobody was been shown to be the complainant which the deceased attempted to rob. Accused after killing the deceased went to the house of the deceased under the guise of executing a search warrant and packed the personal properties of the deceased to the police station. See Exhibit ‘C’ reproduced earlier in this judgment. The Accused in this case appeared like somebody with satanic propensities. His explanations both in court and his previous statements show he was the one who killed the deceased and no one else.”

I believe that there is no reason to set aside the clear findings and erudite reasoning of the learned trial judge. There is no doubt in my mind that the circumstantial evidence shows clearly that the Appellant took aim and shot the deceased in cold blood. Inhumanity of man to man!!! He has no excuse under the law.

I affirm the conviction of the Appellant in charge No. UHC/5C/2004 and the sentence of execution by hanging.

PHILOMENA MBUA EKPE, J.C.A.: I have had the opportunity of reading in draft the Judgment just delivered by my learned sister H.M. Ogunwumiju, JCA.

My learned sister has painstakingly and admirably dealt with all the salient issues in this appeal. I am in total agreement with her reasoning and conclusion that a case of murder has been established against the appellant beyond reasonable doubt. I too have no reason to set aside the well researched findings of the trial Court. I affirm the conviction and sentence of the Appellant in Charge No. UHC/5C/2004. Appeal dismissed.

HAMMA AKAWU BARKA, J.C.A.: I had the advantage of reading in draft the judgment just read by my brother, HELEN MORONKEJI OGUNWUMIJU, JCA.

Having carefully analysed the submissions in the respective briefs, I am in tandem with the position that the last seen theory places upon the accused person (appellant) the duty to explain the circumstances of the death of the deceased. Where circumstantial evidence points irresistibly and unequivocally to the guilt of the accused, a conviction can safely be anchored on such circumstantial evidence.

I too see no merit in the instant appeal and would order that same be dismissed.

The conviction and sentence of the appellant in charge No. UHC/5C/2004 is consequently affirmed by me.

Appearances

Chief A. P. A. Ogefere with him O. OhonyonFor Appellant

AND

O. F. Enenmo DDPPFor Respondent