UKO IKONO v. THE STATE (2016)

UKO IKONO v. THE STATE

(2016)LCN/8192(CA)

In The Court of Appeal of Nigeria

On Thursday, the 18th day of February, 2016

CA/C/89C/2014

RATIO

EVIDENCE: BURDEN OF PROOF: WHICH OF THE PARTIES HAS THE ONUS OF PROOF IN A CRIMINAL CASE
Onus of proof is on the prosecution and the onus is to be discharged on the allegation being established beyond reasonable doubt. This is a cardinal principle of our criminal justice system on which there is no dissent. This principle is enshrined in our grundnorm as Section 36 (5) of the Constitution of the Federal Republic of Nigeria (as amended) and has been reinforced in numerous judicial pronouncements.
Thus where the prosecution fails to discharge the burden of proof on it under the law or there is any lingering doubt, created in the evidence relied on by the prosecution, such doubt must be resolved in favor of the accused and will consequentially result in his acquittal. See NNOLIM vs STATE (1993) 3 NWLR (PT 283) 569 and JOHN IKHANE VS COMMISSIONER OF POLICE (1927) 6 SC 119 at 122. per. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

EVIDENCE: STANDARD OF PROOF; WHAT CONSTITUTE PROOF BEYOND REASONABLE DOUBT

What constitutes proof beyond reasonable doubt is not a mystery, it is proof that precludes every reasonable hypothesis except that which it tends to support and it is proof, which is wholly consistent with the guilt of the accused and inconsistent with any other rational conclusion. Therefore, in a criminal trial, for evidence to warrant or shore up conviction, it must exclude beyond all reasonable doubt every other conceivable imaginable state of affair other than that of the guilt of the accused as he shall be entitled to acquittal of crime charged if conclusion for conviction is not the only reasonable interpretation of which the facts adduced against him are susceptible. See UBANI vs STATE (2003) 4 NWLR (PT.809) 51 at 64.
It must be pointed out that proof beyond reasonable doubt is not proof beyond any shadow of doubt. The degree of proof that would amount to reasonable doubt need not reach certainty, but it will carry a high degree of probability. Once the ingredients of the particular offence the accused is charged with, are proved, that constitutes proof beyond reasonable doubt and for him to be entitled to the benefit of doubt, the doubt must be a genuine and reasonable one arising from some evidence before the Court.
See NWANKWO vs FRN (2003) 4 NWLR (PT 809) 1 at 35-36. per. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

EVIDENCE: STANDARD OF PROOF; WHAT STANDARD OF PROOF IS REQUIRED TO ESTABLISH THE OFFENCE OF MURDER

To establish the offence of murder against the appellant, it must be proved beyond reasonable doubt that the deceased died, the cause of death of the deceased and that the act or omission of the accused which caused the death of the deceased was unlawful and intentional with knowledge that death or grievous bodily harm was its probable consequence. See CHIEDOZIE ANAEKWE vs THE STATE (2014) 58 NSCQR 452, ABOGEDE VS STATE (1996) 5 NWLR (PT 448) 270 and EMMANUEL EGWUMI vs THE STATE (2013) 53.3 NSCQR 455. per. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. per. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

EVIDENCE: CONTRADICTORY EVIDENCE; WHEN IS A PIECE OF EVIDENCE SAID TO BE CONTRADICTORY

For testimonies to be contradictory they must relate to material points and are said to contradict when one account asserts the opposite of the other and both cannot be said to be simultaneously correct. They must create doubts in the mind of the Court as to the guilt of the accused. Discrepancies however are bound to arise in the truthful accounts of witnesses to the same event as these accord with the normal course of human events. See AWOPEJO VS STATE (2001) 8 NSCQLR 312, NNOLIM vs STATE (1993) 3 NWLR (pt 283) 569 and EMMANUEL EGWUMI VS THE STATE (2013) 53.3 NSCQR 455.
According to Rhodes-Vivour, JSC:
A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not when there is just a minor discrepancy of between them. Two pieces of evidence contradicts one another when they are by themselves in-consistent. A discrepancy may occur when a piece of evidence stops short of or contains a little more than, what the other evidence says or contains some differences in details. See EMMANUEL EGWUMI VS THE STATE (supra) at 463. per. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

EVIDENCE: EXPERT OPINION; WHETHER MEDICAL EVIDENCE IS ESSENTIAL TO PROVE DEATH

According to Uthman Mohammed JSC:
Our Law reports are replete with authorities showing that medical evidence is not always essential to prove death. Where the victim dies in circumstances in which there is abundant evidence of the manner of death, medical evidence can be dispensed with. See AWOPEJO VS STATE (supra) at 320. AYOOLA, JSC similar stated thus:
Where death follows. Injury, inflicted on the deceased and the fact of the injury is relied on without medical evidence as circumstantial evidence of cause of death, the injury suffered must be so well described and be of such a nature, from such description, that the injury itself must speak clearly and unmistakably for itself taken together with the surrounding circumstances to amount to prima facie proof of cause of death. See SULE AHMED (ALIAS EZA) VS THE STATE (supra) at 289. per. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

JUSTICES

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria

JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria

Between

UKO IKONO Appellant(s)

AND

THE STATE Respondent(s)

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is in respect of an appeal against the judgment of the High Court of Akwa Ibom State, Uyo Judicial Division delivered on the 25th November, 2013 by Stephen Okon J.

The appellant was arraigned on a one count charge of murder contrary to Section 326 (1) of the Criminal Code Cap 38, Vol 11 Laws of Akwa Ibom State of Nigeria. The particulars of offence stated as follows:
Uko Ikono and another still at large on the 12th January, 2012 at Ubon Akwa in Obot Local Government within Ikot Ekpene Judicial Division murdered Okon Sam Achukwu (m).

The appellant pleaded not guilty to the charge and at the trial the prosecution called 5 witnesses while the appellant testified from the witness box in his defence. After taking final addresses of counsel, the learned trial judge in a considered judgment found the appellant guilty as charged, convicted and sentenced him accordingly.

Exercising his right of appeal, the appellant filed a Notice of Appeal on the 3rd of February, 2014 containing 4 grounds.

At the hearing of the appeal, Mr. Usen the learned counsel for the respondent

raised a preliminary objection filed on 16th September, 2015 and adopted the arguments contained on pages 1-5 of his respondents brief filed on the same 16th September, 2015 but deemed properly filed and served on the 30th September, 2015 as his arguments on the objection.

Mr. Ojiako, the learned counsel for the appellant opposed the preliminary objection and adopted the arguments contained in the appellant?s reply brief filed on 13th January, 2016 but deemed properly filed and served on the 9th February, 2016 as the appellant’s arguments in opposition to the objection.
It is appropriate therefore that the take off point shall be the preliminary objection.

In the preliminary objection, the respondent seeks the following reliefs:
1. An order striking out Ground 2 of the Grounds of appeal contained in the Notice of Appeal dated 30th January, 2014 together with the particulars of the ground and the issue B distilled from the said Ground 2 for being incompetent.
2. An order striking out Ground 3 of the Grounds of appeal together with issue C distilled therefrom for being incompetent.

?The grounds for the sought reliefs were

stated as follows:
1. The particulars distilled from Ground 2 of the Notice of Appeal are at variance with the said Ground 2, thus making the said Ground 2 incompetent.
2. Issue B distilled from the said Ground 2 therefore becomes incompetent.
3. Issue c distilled from Ground 3 of the Grounds of Appeal is deemed abandoned as no argument is canvassed by the Appellant?s brief in respect thereof.

Arguing the objection Mr. Usen submitted that the particulars of Ground 2 in the Notice of appeal are unrelated to the said ground thereby vitiating the said ground and rendering issue B derived therefrom incompetent. He referred ASOGWA VS THE STATE (2014) 9 NCCC 1 at 87, AJAYI VS TOTAL NIG PLC (2013) 12 SC (PT 3) 90 at 99, NBN LTD VS OPEOLA (1994) 1 NWLR (PT 319) 126, DAN-JUMBO VS DAN-JUMBO (1999) 71 LRCN 2380 at 2391.

He further submitted that arguments were not canvassed on issues B and C while no issue was distilled from Ground 4 thereby rendering them abandoned. He referred to JIBRIN vs BABA (2004) 16 NWLR (PT 899) 243 at 255, AGBO vs STATE (2006) 6 NWLR (PT 977) 545 at 575-576.

He urged the Court to strike out the affected

grounds and issues thereby leaving Ground 1 and issue A formulated therefrom as remaining for determination.

In his response Mr. Ojiako submitted that since the respondent was not challenging the entire grounds of appeal and issues for determination, counsel ought to have proceeded by way of motion. He referred to ODUNUKWE vs OFOMATA (2010) 12 MJSC 1 at 13.

He conceded that grounds of appeal from which issues were not formulated are deemed abandoned and would be ordinarily struck out by the Court even if no objection was taken to them.

In considering this preliminary objection, I must agree with Mr. Ojiako that the respondent/objector ought to have approached the Court in respect thereof via a motion on notice.
This is for the obvious reason that a preliminary objection to an appeal can only be properly so called if it attacks the entire appeal. Where the challenge is to a part or portion thereof, counsel should approach the Court via a motion on notice. See ODUNUKWE vs OFOMATE & ANOR (2010) 12 SCM 117 at 127.

?Notwithstanding this technical defect, the appellant is not contesting the substance of the issues raised as the defects in

the grounds of appeal and the formulated issues for determination are palpably visible. I have accordingly carefully perused the grounds contained in the notice of appeal as well as the appellant?s brief.

Ground 2 and the particulars formulated in respect thereof are at variance and the said ground is accordingly struck out. Issue B formulated thereof is fatally affected thereby and in addition was not supported by any argument in the appellant’s brief. The said issue is equally struck out.

Issue C was formulated from Ground 3 but was not supported by any arguments in the appellant’s brief. It is also deemed abandoned and it is also struck out.

Ground 4 contained in the notice of appeal is related to the lone surviving issue and it is therefore competent.

In the circumstances, the objection substantially succeeds and I shall accordingly proceed to consider the lone surviving issue formulated from grounds 1 and 4, on the merits.
The said issue as formulated by the appellant is;
Was the lower Court right to hold that having regard to the evidence and circumstances of this case, the appellant murdered the deceased Okon Sam

Achukwu on 12th January, 2011.

Arguing this issue, Mr. Ojiako outlined the essential ingredients of the offence of murder and referred to UBANI vs STATE (2004) FWLR (PT.191) 1533 at 1546.
He submitted that there was no direct evidence that the appellant attacked the deceased and that the testimonies of two of the prosecution witnesses, PW1 and PW4 were contradictory and should have been rejected by the learned trial Judge. He referred to UBANI vs STATE (supra).

He further submitted that the learned trial Judge speculated on the cause of death in the absence of medical certificate. He referred to AIGUOREGHIAN VS STATE (2004) ALL FWLR (PT 195) 716 at 734.
He urged the Court to allow the appeal.

For the respondent, Mr. Usen drew attention to the relevant portions of the testimonies of PW1 and PW4 and submitted that they were not contradictory in any manner but were rather direct in implicating the appellant. He referred to EGWUMI VS THE STATE (2013) 220 LRCN (pt 1) 224 at 252.

Learned counsel referred to the conclusion of the judgment of the trial Court and urged the Court to affirm it.

?He submitted that the learned trial Judge

did not rely on hearsay evidence in the absence of medical evidence and that AIGOUREGHIAN VS STATE (supra) is authority that medical certificate is essential where cause of death is doubtful but that the circumstances here were sufficiently clear as to render medical certificate unnecessary. He referred to MAIGARI vs STATE (2013) 12 SCM (PT 3) 628.

He drew attention to Sections 319 and 320 of the Criminal Code Cap 38, vol.2 Laws of Akwa Ibom State and submitted that the appellant was justifiably convicted for the death of the deceased.
He urged the Court to dismiss the appeal.

In his reply brief, Mr. Ojiako reiterated his earlier submission that the testimonies PW1 and PW4 were contradictory and that notwithstanding the submissions of his colleague for the respondent, medical evidence is mandatory once death from inflicted injuries occur after three months of the injuries. He referred to AIGUOREGHIAN vs STATE (supra).

As earlier stated, the appellant was convicted by the trial Court for the offence of murder.
Onus of proof is on the prosecution and the onus is to be discharged on the allegation being established beyond reasonable

doubt. This is a cardinal principle of our criminal justice system on which there is no dissent. This principle is enshrined in our grundnorm as Section 36 (5) of the Constitution of the Federal Republic of Nigeria (as amended) and has been reinforced in numerous judicial pronouncements.
Thus where the prosecution fails to discharge the burden of proof on it under the law or there is any lingering doubt, created in the evidence relied on by the prosecution, such doubt must be resolved in favor of the accused and will consequentially result in his acquittal. See NNOLIM vs STATE (1993) 3 NWLR (PT 283) 569 and JOHN IKHANE VS COMMISSIONER OF POLICE (1927) 6 SC 119 at 122.

the accused as he shall be entitled to acquittal of crime charged if conclusion for conviction is not the only reasonable interpretation of which the facts adduced against him are susceptible. See UBANI vs STATE (2003) 4 NWLR (PT.809) 51 at 64.
It must be pointed out that proof beyond reasonable doubt is not proof beyond any shadow of doubt. The degree of proof that would amount to reasonable doubt need not reach certainty, but it will carry a high degree of probability. Once the ingredients of the particular offence the accused is charged with, are proved, that constitutes proof beyond reasonable doubt and for him to be entitled to the benefit of doubt, the doubt must be a genuine and reasonable one arising from some evidence before the Court.
See NWANKWO vs FRN (2003) 4 NWLR (PT 809) 1 at 35-36.

?To establish the offence of murder against the appellant, it must be proved beyond reasonable doubt that the deceased died, the cause of death of the deceased and that the act or omission of the accused which caused the death of the deceased was unlawful and intentional with knowledge that death or grievous bodily harm was its probable consequence.

See CHIEDOZIE ANAEKWE vs THE STATE (2014) 58 NSCQR 452, ABOGEDE VS STATE (1996) 5 NWLR (PT 448) 270 and EMMANUEL EGWUMI vs THE STATE (2013) 53.3 NSCQR 455.

The evidence of the prosecution witnesses that the deceased here died was not contested. The main contentions here were that the cause of death was not established by medical evidence and that the testimonies of two of the prosecution witnesses PW1 and PW4 on the connection of the appellant with the death of the deceased were contradictory.

Evidence of the cause of death of the deceased and the involvement of the appellant therewith was given by the prosecution witnesses. The testimonies of the 2 witnesses in issue, PW1 and PW4 in this regard shall be highlighted.
PW1 stated as follows on lines 2-16 of page 83 of the record of appeal:
My husband returned from work of Ikot Ineme, in Essien Udim Local Government Area. The accused person and others hit my husband in front of the accused person’s compound. They were 8 persons. Itoro Ikono and others I don’t know their names killed my husband and I shouted. People came out and took my husband to the Village Head?s compound. The

village head directed that my husband be taken to the village square. He was taken there. Some people reported the incident to the police. The police took my husband to the hospital, General Hospital, Ikot Ekpene. The police come from Ikot Ekpene.
In the hospital my husband died. The attack took place in October, 2010. He died January 12, 2011.
I was present at the scene where my husband was beaten. The accused and others beat up my husband, broke his 2 legs and also inflicted machete cut on him.
He was macheted on the ribs.

The testimony of this witness was direct as to what she saw and her testimony was not shaken under cross-examination.

PW4 gave the following account in his evidence in chief on page 91 of the record of appeal as follows:
On 20th October, 2010, I was in my house. Something happened. At about 8p.m. I heard a shout.
I went out as a security man in the village. When I went out, I met someone lying down beside a motor-cycle. I saw the wife of Okon Sam shouting. I saw the accused, his wife, Atim and his son Itoro Uko Ikono at the scene.
I called my co-security men to come. They came. We carried Okon Sam

and his motorcycle to the village Hail.
I sent a message to the village Chairman. George Etok Akpan. The following morning we lodged a report at the Area Commander, Ikot Ekpne.
I met Okon Sam with injuries on his legs. The accused and his son beat up the deceased and broke his legs. They hit him with a spear and inflicted injury on his ribs.

The testimonies of these two witnesses were said to have been contradictory by the appellant’s counsel.

evidence has stated, not when there is just a minor discrepancy of between them. Two pieces of evidence contradicts one another when they are by themselves in-consistent. A discrepancy may occur when a piece of evidence stops short of or contains a little more than, what the other evidence says or contains some differences in details. See EMMANUEL EGWUMI VS THE STATE (supra) at 463.

I do not agree with Mr. Ojiako the learned counsel for the appellant that these testimonies are contradictory and I cannot see the basis for his submission that there was no direct evidence of the involvement of the appellant with the cause of death.

Furthermore, PW5 tendered exhibit B, the autopsy report conducted on the deceased. That document is on page 27 of the record of appeal and contains the following:
Medical Report;
The corpse had comminuted fractures on the lower1/5 of both legs. The fracture (open) were stabilized using sticks. There was equivocal evidence of confusion injury on the forehead; right anterior chest wall and back: altered skin coloration
I certify the cause of death in my opinion to be septicemia from poorly managed bilateral

open fracture of tibia and fibula bones. Fractures may have resulted from high velocity close range heavy object such as axe or digger. Sgd Dr EGUZO K.N.

The content of this autopsy report is consistent with the oral testimonies of PW1 and PW4 on the injuries inflicted on the deceased which resulted in his death.

I am in agreement with Mr. Usen that the finding and conclusion of the learned trial Judge convicting the appellant was based on abundant evidence adduced before him.

The learned trial Judge had the autopsy report exhibit B in evidence before him. Even if this were not so, it would not stop the appellant from being convicted in the face of the abundant evidence of the nature of injuries inflicted on the deceased by the appellant and his cohorts, as duly witnessed directly by PW1.

stated thus:
Where death follows. Injury, inflicted on the deceased and the fact of the injury is relied on without medical evidence as circumstantial evidence of cause of death, the injury suffered must be so well described and be of such a nature, from such description, that the injury itself must speak clearly and unmistakably for itself taken together with the surrounding circumstances to amount to prima facie proof of cause of death. See SULE AHMED (ALIAS EZA) VS THE STATE (supra) at 289.

In totality therefore, I find no merit in this appeal and I accordingly dismiss it.
I hereby affirm the conviction and sentence of the appellant by the learned trial Judge.

ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read, in draft form, a copy of the Judgment just delivered by my learned Brother, J.O.K Oyewole, JCA, in which he dismissed this appeal.

The issues raised by the Preliminary Objection and in this appeal have been comprehensively addressed and I am in agreement with the resolution. I also see no merit in this appeal and hereby dismiss same.

I abide by the orders made in the lead Judgment.

PAUL OBI ELECHI, J.C.A.: I had the singular privilege to have read in draft, the Judgment just delivered by my Learned brother J. O. K. Oyewole, JCA in which he dismissed the appeal.

?The issue raised in the Preliminary Objection in this appeal have been exhaustively addressed by my brother that I do not have anything else to add. I also agree with the level of reasoning and the conclusion arrived at and I agree with him in dismissing the appeal as being unmeritorious.
I abide by the Orders made in the lead Judgment.

Appearances

Mr. C.S. Ojiako, Esq.For Appellant

AND

Mr. U. Usen, Esq. with him, Mr. G. Udom, Esq. and Mr. O. Otu, Esq.For Respondent