REUBEN OKASI v. THE STATE
(2016)LCN/8340(CA)
In The Court of Appeal of Nigeria
On Monday, the 21st day of March, 2016
CA/OW/383C(B)/2013
RATIO
COURT: DUTY OF THE TRIAL COURT: WHETHER IT IS THE PRIMARY DUTY OF TH TRIAL COURT TO EVALUATE ALL MATERIALS AND RELEVANT PIECES OF EVIDENCE
The law is trite that the duty of evaluation of all material and relevant pieces of evidence are the primary responsibility of the trial Court. In other words ascription of probative value or weight to such evidence are the function of the trial Court which saw, heard and watched the demeanour of witnesses while they testified. See: BABALOLA BORISHADE V. FEDERAL REPUBLIC OF NIGERIA (2012) 18 NWLR (PART 1332) 347 at 401 E – H TO 402 A per NWODO, JCA of blessed memory who said thus:
“This issue brings to force the nature of the duty on the trial Court to evaluate evidence in criminal cases. It is trite that the appraisal of oral evidence and the ascription of probative values to such evidence is the primary duty of a trial Court. Once a trial Court has applied the established principles of law in assessment or evaluation of evidence adduced before the Court, an appellate Court would have no viable justification to interfere with the decisions notwithstanding the style adopted in the procedure for the evaluation. See: Martins V. The State (1997) 1 NWLR (Pt. 101) 23.
The rationale in support of the duty placed on the trial Court to assess or evaluate evidence is that they enjoy the privilege of listening and watching the demeanour of witnesses and are better placed to assess their credibility on oath.
COURT: DUTY OF THE APPELLATE COURT AND WHEN THE APPELLATE COURT IS IN THE POSITION TO REVIEW AND RE-EVALUATE EVIDENCE
The duty of the appellate Court is to look at the printed record of the evidence adduced at the trial in support of the charge to ascertain whether the trial Court has made substantive or procedural errors or has failed to make proper findings in line with the evidence adduced before the Court. Therefore where the trial Court has appropriately evaluated the evidence and appraised the facts, it is not the business of an appellate Court to substitute its view for those of the trial Court.
However, where the trial Court fails in its role to evaluate the evidence or properly appraise the facts based on the evidence before the Court the appellate Court is in as good a position to review the evidence and proceed to draw the necessary inferences from the evidence in the printed record, see: Mogaji v. Odofin (1978) 4 SC 91 at 93-94.”
See also STEPHEN HARUNA VS. THE ATTORNEY GENERAL OF THE FEDERATION (2012) 9 NWLR (PART 1306) 419 at 438 E – F where GALADIMA, JSC had this to say:
“There was other issue requiring my emphasis whether there was evaluation by the trial Court. It is instructive to note that evaluation of evidence and ascription of relevant probative value thereto is the primary duty of the trial Court who had the opportunity to see and hear the parties and assessed the witnesses. The trial Judge has the advantage of seeing the witnesses, watching their demeanour and hearing them gives evidence.”
In the same report ADEKEYE, JSC on page A – B said:
“Where the trial Court unquestionably evaluate the evidence and exhaustively appraised the facts. It is not the business of appellate Court to substitute his own views for that of the trial Court. It is only where and when it fails to evaluates such evidence properly or at all that an appellate Court can intervene and re-evaluate such evidence. STATE V. AJIP (2000) 7 SC (Pt. 1) page 24, (2000) 11 NWLR (Pt. 678) 434.” per. PETER OLABISI IGE, J.C.A
CRIMINAL LAW: THE OFFENCE OF MURDER; WHAT CONSTITUTE THE ELEMENT OR INGREDIENT OF MURDER
What constitutes the elements or ingredients of murder have been stated and restated in numerous cases. See: (1) DARE JIMOH VS. THE STATE (2014) 11SCM 216 at 239 A – I to 240 A – B per ARIWOOLA JSC who said:
“As earlier noted, the substantive offence with the appellant was charged is murder. By the Criminal Code Law, an offence of murder is committed when a person unlawfully terminates the life of or kills another under any of the following circumstances, that is to say:
1. If the intends to cause the death of the person killed, or that of some persons;
2. If the offender intends to do the person killed or to some other persons some grievous harm.
3. If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;
4. If the offender intends to do grievous harm to some persons for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant or for the purpose of facilitating the flight of an offender who has committed or attempted to commit such an offence;
5. If death is caused by administering any stupefying or overpowering things for either of the purposes last aforesaid;
6. If death is caused by willfully stopping the breath of any person for either of such purposes;
In the second case above, it is immaterial that the offender did not intend to hurt the particular person who is killed.
In the third case, it is immaterial that the offender did not intend to hurt any person. In the three last cases, it is immaterial that the offender did not intend to cause death or did not know that death was likely to result. per. PETER OLABISI IGE, J.C.A
EVIDENCE: BURDEN OF PROOF; WHICH PARTY HAS THE BURDEN OF PROOF IN A CHARGE OF MURDER
However, the law is trite that in a charge of murder, the burden of prove is squarely on the prosecution, to establish that the deceased died; that the death was cause by the accused; that the accused intended to either kill the victim or cause grievous harm on him. See Francis Durwode vs. The State (2000) 15 NWLR (pt. 691) 467; (2001) FWLR (pt. 36) 950; Basil Akpa vs. The State (2008) 8 SCM 68 at 78; Ahmed vs. State (2001) 18 NWLR (pt.746) 622, (2002) 1 SCM, 33; State vs. Sadu (2001) 15 NWLR (pt. 735) 102; Sabina C. Madu vs. The State (2012) 15 NWLR (pt. 1324) 405; (2012) 6 SCNJ 129; (2012) 50 NSCQR 67; (2012) All FWLR (pt. 641) 1416; (2012) 6 SC (pt. 1) 80.
In other words, in a charge of murder, it is a duty the prosecution is bound to discharge by proving the death of the victim, responsibility of the accused by act or omission, intentional act or omission of the accused with knowledge that it could cause grievous bodily harm or death. It must be established by the prosecution that the said act or omission indeed caused death but not that it could have caused death. See; Ubani & Ors. vs. State (2004) FWLR (pt. 191) 1533; (2003) 18 NWLR (pt. 851) 224; Godwin Igabele vs. The State (2006) 3 SCM 143 at 151; (2006) 6 NWLR (pt. 975) 100.” (Underlined mine) per. PETER OLABISI IGE, J.C.A
CRIMINAL LAW: HOMICIDE; THE MEANING OF HOMICIDE AND THE INGREDIENT THE PROSECUTION HAS TO ESTABLISH TO SECURE A CONVICTION OF CULPABLE MURDER
UMARU ADAMU VS. THE STATE (2014) 8 SCM 1 at 16 E – I, per ARIWOOLA JSC who said:
“Homicide generally means “the killing of one person by another”. It is also “the fact of purposely, knowingly, recklessly, or negligently causing the death of another human being”. But culpable homicide means a wrongful act that results in a person’s death but does not amount to murder. See: Black’s Dictionary, Ninth Edition pages 802 and 803.
However, for the prosecution to secure conviction in a charge of culpable homicide with death under the Panel Code, as in the instant case, the following ingredients must be established.
(i) the death of the deceased;
(ii) that the death resulted from the act of accused; and
(iii) that the accused knew that is act will result in the death or did not care whether the death of the deceased will result from his act.
See: Durwode v. State (2000) 15 NWLR (Pt. 691) 467 at 487 – 488; Ogbu & Anor v. The State (2007) 4 SCM 169 at 185.” SHINA OKETAOLEGUN VS. THE STATE (2015) 9 SCM 196 at 218 D – G per OKORO JSC who said: “Let me state clearly from the outset that in this case, there is no direct evidence that the appellant killed the deceased in the sense that nobody saw when the deceased was stabbed to death by the appellant. This is much more so in view of the fact that in a charge of murder, the prosecution has a duty to prove thus:
1. the deceased had died
2. the death of the deceased was caused by the accused.
3. the act or omission of the accused which caused the death or grievous bodily harm was its probable consequence. See Inyang Etim Akpan Vs. The State (1994) LPELR ? 382 (SC), (1994) 9 NWLR (pt. 368) 347, Akinfe V. The State (1988) 3 NWLR (pt. 85) 729, Ogha V. The State (1992) 2 NWLR (pt. 22) 164, Oludamilola V. State (2010) 8 NWLR (pt. 1197) 565, (2010) 8 NWLR (pt.1197) 565, (2010) 5 SCM, 166.” per. PETER OLABISI IGE, J.C.A
EVIDENCE: CONFESSIONAL STATEMENT; WHETHER A CONFESSIONAL STATEMENT IS ADMISSIBLE AND AN ACCUSED PERSON CAN BE CONVICTED BASED ON HIS CONFESSION OR ADMISSION
Pursuant to Sections 28 and 29 of the Evidence Act 2011 a Confessional Statement which is a direct acknowledgment of elements or ingredients of an offence is solely relevant and admitted against the maker of the confessional Statement. See: (1) PETER ILIYA AZADABA VS. THE STATE (2014)
12 SCM 151 at 170 I to 171 A – B per OKORO, JS C who held: “By Section 28 of the Evidence Act a confession statement is a statement made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. Such a statement is admissible if it is direct and positive and relates to his own acts, knowledge or intention, stating or suggesting the inference that he committed the crime charged. See Akpan V. State (1992) 7 SCNJ 22, Yesufu V. State (1976) 6 SC 167, Obasi V. State (1965) NWLR 129 Ogoala V. The State (1991) 2 NWLR (pt. 175) 509.
The law is also settled that an accused person can be convicted based on his confession or admission alone if it is direct, positive and unequivocal as to the commission of the offence charged. See Akpan v. State (supra).” TIRIMISIYU ADEBAYO VS. THE STATE (2014) 8 SCM 34 at 65 G per BODE RHODES VIVOUR JSC who said: “Confessional Statements are only admissible in Court against the maker (i.e. the accused person), if it is a voluntary acknowledgment of guilt.” per. PETER OLABISI IGE, J.C.A
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
REUBEN OKASI Appellant(s)
AND
THE STATE Respondent(s)
PETER OLABISI IGE, J.C.A.(Delivering the Leading Judgment):
The Appellant and eight other persons were arraigned before the High Court of Imo State in Owerri Judicial Division on 24th day of November, 2010 charged with the following offence to wit:
“STATEMENT OF OFFENCE
MURDER: contrary to Section 319(1) of the Criminal Code, Cap 30 vol. 11 Laws of Eastern Nigeria.
PARTICULARS OF OFFENCE
UCHENNA NDUKWU, CHIMA OKEBATA, JOHN EMESIOBI STANLEY NDUKWU EKENE NDUKWU, REUBEN OKASI, CHINYERE ADA NDUKWU, CHARLES OKASI AND VINCENT EMESIOBI.
On the 4th day of November, 2010 at Umudaga Awombieri in the Owerri Judicial Division did murdered one Chief (Sir) Augustine Ndukwu.”
The plea of the Accused persons including the Appellant was taken on 31st day of October, 2011. It is pertinent to say that shortly before the said plea of the Accused persons was taken the Learned Director of Public prosecutions applied and was granted permission to withdraw the information against the 2nd and 4th Defendants whose names were subsequently struck out.
The remaining seven Accused persons pleaded (each) to the
charge. The 1st Accused person Uchenna Ndukwu pleaded guilty to the charge. The trial Judge in consonance with principle of laws in Criminal trial involving capital offences entered a plea of NOT GUILTY for the 1st Accused. Each of the other six (6) accused persons pleaded not guilty to the one count charge. The Appellant was the 4th Accused at the Court below.
The prosecution called six witnesses and tendered exhibits in order to sustain the charge against the Accused persons. The Appellant entered upon his defence at the trial. At the close of the defence case the Learned trial judge delivered a considered judgment in the matter on the 18th day of February, 2013.
In the course of his judgment the Learned trial Judge stated and reviewed what he believed to be the evidence against and involvement of the 4th Accused now Appellant at the said trial for murder of Chief (Sir) Augustine Ndukwu.
From page 289 through 290 of the record the Learned trial Judge said concerning the appellant as follows:-
“DW7 Reuben Okasi (4th accused) testified next. He lived at Awo Mbieri at the material times. He knows only his brother 6th accused Charles
Okasi. He was petty store keeper. His alias is UnYI. He said because he is black in complexion. He knew Mrs.Susannah Egosigwi a married woman in their home whom he saw last when they celebrated their grandfather?s death. He said he knows no one by the name ?Ayakata?s and had no quarrel with the late Mrs. Susannah Egosigwi in her life time neither did he conspire with anyone to murder and did not murder the deceased Augustine Ndukwu. On further cross examination, witness agreed that apart from the deceased a woman (Susannah Egosigwi) died in the village that day from Umuadafo where she served the deceased and heard her body was found in the house of the deceased.
The 2nd and 3rd accused counsel had no question for him. Then the State took him on. Witness therein said he has other name ? Uzoma and that he once lived IN Lagos and Aba as a Cobler. He went back to Lagos later in 2002 where he dealt in motor parts leaving in 2009 to the village where he engaged in petty trading in provisions in front of their house. He knows only his brother amongst the accused ? 6th accused. He denied knowing 1st accused neither does he know his
siblings by name. As for Mrs. Susannah Egosigwi all he knows is that she was married in their home but nothing else about her. He denied that the 6th accused and others now at large conspired to kill the deceased neither did 2nd accused procure him, 1st , 6th and others at large to kill the deceased. When it was put to him that on 04/11/2010 1st accused lured the deceased back home and they killed him witness said it is not true neither did they also kill Mrs. Susannah Egosigwi that same day because she identified them. He also denied that because 1st accused did not want him kill the woman, a struggle ensued as they were struggling with the knife he had to do the job leading to 1st accused sustaining injuries. He was not re-examined and was discharged.?
The trial Judge returned to the Appellant on pages 295 and 296 of the record where he made the following findings viz:
?Turning to the case of 4th accused, Reuben Okasi, it was PW3 Inpector Samuel of Nwaorie-ubi Police State who spoke of him. In his testimony he said that they got a signal from State CID, Owerri to arrest one ?Unyi?a and ?Ayakata? and on that basis
they were so arrested. At the same time PW4 DSP Livinus Ezikeanyi reported that it was the signal they received that led them to the arrest of DW4. It must not be forgotten that 1st accused mentioned this alias ?Unyi? in his Statement and more importantly under cross examination in his testimony here in open Court, this DW4 accepted the fact that he is called ?Unyi? but tried to water it down, when he said this is because he is dark in complexion. The defence tried to explain that ?Unyi? meaning charcoal or black is a common name called anybody in their area that is dark in complexion like him. This may well be true but the fact still remains that in this circumstance the reference to ?Unyi? directly points to him and it is him that was referred to in his dastardly action. The defence tried to attack this his arrest on the receipt of the signal that he said signal was not tendered as an exhibit and that it?s conclusion by the prosecutor is caught by the doctrine of withholding evidence which in law entails that when produced, such evidence will be against the prosecution. With due respect, I do not agree
with this submission. The signal is purely internal working of the police and besides the defence was at liberty to ask that it be produce; but failed to do so. The total denial of the 4th accused that he was not party to the killing of the deceased without more is not defence and I do not want to wastes any more time on him but to equally rope him in. He is hereby found guilty as charged.?
(Underline mine)
On the 2nd Accused JOHN EMESIOBI, the Learned trial Judge stated that the prosecution gave evidence that 2nd Accused summoned 1st Accused to his house at Ofakala in Mbaitoli LGA where 1st Accused attended the meeting called by 2nd Accused with some other persons. That he promised to give the 1st Accused N2,000,000 if he could kill the deceased as per the statement of 1st Accused. The trial Judge said the 2nd Accused raised defence of Alibi which Police DSP Livinus Ezikeanyi PW4 said Police investigated and found to be true. The trial Court discharged and acquitted him.
?
On the 7th Accused VINCENT EMESIOBI who the prosecutor accused of having previously threatened the deceased that he (deceased) would not live to see December just a week
before the victim was killed. There was evidence of great animosity between deceased and 7th Accused.
Discharging and acquitting him, the trial Judge said concerning 7th viz:
?Here again having analysed the evidence reviewed the law, I am at pains finding anything to rope him in . If he had once threatened the life of the deceased that does not amount to murder. He is therefore acquitted and discharged him as well.?
Concluding his judgment the trial Judge said:
?COURT: It is the law of our land that anyone who unlawfully takes the life of another if and when prosecuted before a Court of Competent Jurisdiction and found guilty pays with his own life. In the circumstances, my hands are tied. The sentenced of this Court upon you all 1st, 3rd, 5th , 4th and 6th accused is that each and every one of you be hanged by the necK until you be dead. May God have mercy on you? The day, where and time of your hanging will be determined by the Executive Governor of this state.
In the mean time, each of you is ordered to be remanded at the Maximum Security Prisons, Port Harcourt, Rivers State awaiting the action of the said
Executive governor of Imo State.
(SGD)
HON. JUSTICE NGOZI OPARA
JUDGE,
18/2/2013?
The Appellant was aggrieved with the verdict and has now appealed to this Court vide his Notice and Grounds of Appeal dated and filed the 12th day of March 2013 containing four (4) grounds as follows:-
?NOTICE AND GROUNDS OF APPEAL
I REUBEN OKASI, having been convicted of the offence of murder and now a prisoner at the Federal Prisons Owerri, do hereby give notice of appeal against the decision of the High Court of Imo State of Nigeria Holden at Owerri IN Charge No HOW/51c/2011 made on Monday, the 18th day of February, 2013 at High Court 3, Owerri by the Hon. Justice Ngozi Opara, judge on the following grounds.
GROUND 1:
ERROR IN LAW
The learned trial judge erred in law when he held that the prosecution has proved its charge of murder against the appellant.
PARTICULARS OF ERROR
1. The prosecution called a total of six witnesses, none of whom gave any legally admissible evidence against the appellant.
2. The appellant denied the charge of murder.
3. The ingredients for the offence of
murder were not established against the appellant.
4. There was no credible evidence pinning the appellant down to the scene of the crime.
5. The learned trial judge did not evaluate the evidence before him which on a calm view will obviously raise doubt which ought to be resolved in favor of the appellant.
6. The appellant was convicted on the basis of a mistaken identity.
GROUND 2
ERROR IN LAW
The learned trial Judge erred in law when he placed heavy reliance on Exhibit 5 to convict the appellant, when the said Exhibit 5 is a purported confessional Statement of one Uchenna Ndukwu (a Co-accused).
1. The appellant was charged for the offence of murder alongside seven other accused persons.
2. Exhibit 5 is a purported confessional statement of one Uchenna Ndukwu, (A CO- ACCUSED) MADE TO THE POLICE.
3. The said Uchenna Ndukwu (a co-accused) also made to the Police Exhibit 6 putting Exhibit 5 in issues, and repudiating same.
4. At the trial, the said Uchenna Ndukwu (co-accused) maintained all through that he committed the murder alone, and explained in details how he did same to the exclusions of the appellant.<br< p=””
</br<
5. The evidence of the said Uchenna Ndukwu at the trial was in line with Exhibit 6 and never in support of Exhibit 5.
6. The Appellant all through denied both the charge and never admitted/adopted Exhibit 5 (the said confessional statement of a co-accused)
7. The Court below proceeded to convict the appellant on the basis of the said Exhibit 5, a retracted confessional statement of a co-accused, which was never admitted or adopted by the appellant.
GROUND 3
ERROR IN LAW
The learned trial judge erred in law when he relied on circumstantial evidence to convict the appellant.
PARTICULARS OF ERRORS
1. There was no eye witness evidence linking the appellant to the offence charged.
2. There was no cogent, direct or positive evidence linking the accused/appellant to the charge.
3. The Court below nonetheless proceeded to convict the appellant on the basis of circumstantial evidence which was never cogent, direct, and positively pointing on the appellant.
GROUND 4: ERROR IN LAW
The judgment is unreasonable, unwarranted and cannot be supported having regard to evidence before the Honourable Court.?<br< p=””
</br<
The Appellant and Respondent filed their respective Briefs of Argument in this appeal. The appellant?s undated Brief of Argument was filed on 5th day of December, 2013 while the Respondent?s Brief of Argument dated the 27th day of November 2014 was filed on 28th November, 2014 but deemed properly filed on 27th day of April, 2015.
The appeal was heard on 3rd day of March, 2016 when the said Briefs of Argument were adopted and relied upon by the Learned Counsel to the parties to this appeal.
The Learned Counsel to the Appellant Chief F.O. ONYEBUEKE state the back ground facts to this appeal and distilled two issues for determination of this appeal namely:
(a) Whether the trial Judge was right to rely on Exhibit 5 to convict the appellant and ignored Exhibit ?C? also made by the 1st Accused (Grounds 1 and 3)
(b) Whether the Prosecution proved their case against the Appellant beyond reasonable doubt (Grounds 2 and 4)
?
The Learned Counsel to the Respondent Mrs. K.A. LEWEANYA, ASSISTANT CHIEF STATE COUNSEL, Ministry of Justice Imo State formulated two issues also for the determination of the appeal viz:
1.
Whether the trial Judge relied only on Exhibit 5 to convict the Appellant (Ground 2)
2. Whether the prosecution proved its case against the Appellant beyond reasonable doubt. (Grounds 1 and 4)
I am of the view that the two issues formulated by the Respondents are in tandem with the two issues nominated for determination of the appeal by the Appellant I will therefore consider the appeal on the issues formulated by the Appellant and will take them together.
ISSSUE AS A & B
(A) WHETHER THE TRIAL JUDGE WAS RIGHT TO RELY ON EXHIBIT 5 TO CONVICT THE APPELLANT AND IGNORED EXHIBIT “C” ALSO MADE BY THE 1ST ACCUSED.
(B) WHETHER THE PROSECUTION PROVED THEIR CASE AGAINST THE APPELLANT BEYOND REASONABLE DOUBT.
Chief F.O. Onyebueke for the Appellant argued under Issue A that findings of the trial Judge on page 296 of the record against the Appellant showed that the Learned trial Judge relied on Exhibit 5 made by the 1st Accused person where he implicated the 4th Accused now Appellant. That the said 1st Accused retracted the confessional statement contained in Exhibit 5 in a later statement tendered as Exhibit ?C?
wherein the 1st Accused stated the Appellant was not involved in the murder of Chief Ndukwu. That though Exhibit ?C? made by the 1st Accused person exonerated the Appellant, the Learned trial Judge failed to consider Exhibit “C” and its import or implication because Exhibit “C” was favourable to the Appellant. That both exhibits were part of the statement obtained from 1st Accused by the Police. That the trial was not to consider only Exhibit 5. That he must have to consider the two statements which were tendered. That the inconsistency Rule will apply and according to Chief F.O. ONYEBUEKE the evidence given by the 1st accused person in Court should be treated as unreliable and as such Exhibit 5 should not have been regarded as evidence upon which he lower Court could act. He relied on the cases of SULE V STATE (2009) 17 NWLR (Part 1169) at 61 C -D STATE (2006) 6 NWLR (Pt. 979) 545 at 571 A-F.
The Learned Counsel to Appellant stated that the lower Court should have regarded 1st Accused as unreliable witness..
That in its wisdom the trial Court chose not to rely on Exhibits 5 and C in respect of 2nd and 7th
Accused that were discharged and acquitted notwithstanding that the 1st Accused mentioned 2nd and 7th Accused as the persons who hired 4th and 6th Accused person but the trial Court acquitted them only to turn round and convicted the Appellant and 6th Accused. That the lower Court did not- withstanding that there was no evidence outside the said Exhibit 5 linking the Appellant with the Murder. He relied on the case of Bassey v. State (2012) 12 NWLR part 1314) 209 at 227v C – D. That the only reason for the conviction of the Appellant was because he admitted being known as “Unyi” that that cannot be admission of quilt. That PW2 was mentioned in similar circumstance in Exhibit 5 and yet the PW2 was neither charged, tried or convicted. That evidential value of Exhibit 5 was not considered and that the trial judge was wrong. he relied on the case of NWOCHA VS The State (2012) 9 NWLR (PART 1306) 571 at 587 D.
That the confession made of Exhibit 5 cannot be a confession for all the Accused in a Criminal trials. That the trial Court cannot base its conviction of Appellant on it. He relied on the case of MPOANG vs State (2009) 18 NWLR (
part 1172) 140 at 159 E – F.
That in this case the 1st Accused stated he killed the deceased with PW2. He urged the Court to allow the appeal.
On Issue 2 the Learned counsel to the appellant argued that onus of prove in Criminal trial is prove beyond reasonable doubt. That the evidence must be of such quality that will leave the trial Court in no doubt as to guilt of the accused person. He relied on the case of KALU V. STATE (1998) 54 NWLR (Pt. 190) 503.
That there was no eye witness evidence linking the appellant with the commission of the murder offence. That there is even no circumstantial evidences suggesting that Appellant committed the offence or was involved in it. He referred to the evidence of PW6 who stated that the confessional statement made later was not true and that it was made to cause great confusion. That there is nothing on record to show that Exhibit 5 is true.
That the Appellant did not make any confessional statement and so could not be convicted on retracted confession of 1st Accused. That the prosecution did not prove its case beyond reasonable doubt.
In reply to the above submission the Learned Counsel to
the Respondent submitted under issue 1 (Issue A) that the Learned trial Judge did not rely on Exhibit 5 to convict the Appellant but on all the evidence led including the defence which, according to the Learned Counsel for Respondent, really helped the Judge to decide the general merit of the case.
According to the Respondent in paragraph (a) of the Brief page 7 thereof the Case of the Respondent is this:
“The Prosecution’s Case is that the 2nd accused person and John Emesiobi procured the 1st, 4th (appellant) and 6th accused persons and two others at large to kill the deceased Chief Augustine Ndukwu.
The Prosecution in proof that the Appellant together with the 1st Accused at the trial murdered the deceased and his gardener on 4-11-2010 relies on evidence of PW3, PW5, Exhibit 16 and other pieces of evidence led in the Case.”
The Respondent’s Learned Counsel then referred to Exhibit 5 made by 1st Accused wherein he mentioned one Ayakata and Unyi were procured by 2nd Accused to murder the decease Chief Augustine Ndukwu. That 1st Accused further stated that it was after they had killed the deceased that his gardener
Mrs. Susana Esogwim came in and that in Exhibit 16 the 1st Accused stated inter alia as follows:
“After we killed Chief Augustine Ndukwu, his gardener Mrs. Susana from Obinihu Awo Mbieri who is from the same kindred with Unyi and Ayakata came out from where she was working inside Chief Augustine’s house. Immediately the woman Mrs. Susanna came out, Unyi went and stabbed her to death too. After we killed the two of them, we took their corpses to a nearby bush inside the compound and dumped them. After dumping the corpses, we ran away from the compound. I first of all ran to Revival Fire Explosion Ministry, Church but I could not pray. I left the Church to a Chemist at Nwaorieubi Junction where I treated my wound which I sustained when I was dragging the knife which Unyi used in stabbing the woman Susana because I did not want Unyi to kill the woman.”
The Learned Assistant Chief state Counsel then said:
“PW3 stated that the Appellant on arrest personally identified himself as UNYI, PW3 further testified that when he asked for the Appellant?s real name, he gave it as Reuben Okasi. This piece of evidence was never
challenged.”
On the submission of Appellant that the learned trial Judge did not consider Exhibit “C” which retracted Exhibit 5 the learned Respondent’s Counsel submitted that Exhibit “C” is retracted confessional Statement of 1st Accused while Exhibit 5 is the Confessional Statement of 1st Accused. That from the issues presented the trial Judge did not rely on Exhibit 5. That it was held in the Case of EGBOGHONOME VS. STATE (2001) 2 ACLR that Voluntary Statement of an Accused is part of prosecution?s Case and that being so both Exhibits 5 and ?C? Statements of 1st Accused including the denials at the trial are all part of prosecution’s Case.
On evidence of Co-accused which the Appellant submitted was relied upon by trial Judge, Respondent?s learned Counsel relied on Section 29(4) of Evidence Act 2011 and maintained that trial Judge did not state he was relying on evidence of Co-accused to take decision. She urged the Court to resolve Issue (A) in favour of Respondent.
On the submissions of Appellant under Issue (B) that the Prosecution failed to prove its case beyond reasonable
doubt, the Respondent insisted that the prosecution proved its case beyond reasonable doubt and that all the three ingredient were proved. He relied on EYO VS. STATE (2000) ALL FWLR at 1928. That the prosecution through Medical Doctor PW5 proved death of the victim.
That the Appellant and 1st Accused knew themselves so ingredient number two was proved.
That the prosecution also proved the intention to cause the death of the victim. That the 1st Accused together with Appellant intended to kill the deceased. He urged the Court to hold that the Prosecution proved the case beyond reasonable doubt.
The law is trite that the duty of evaluation of all material and relevant pieces of evidence are the primary responsibility of the trial Court. In other words ascription of probative value or weight to such evidence are the function of the trial Court which saw, heard and watched the demeanour of witnesses while they testified. See: BABALOLA BORISHADE V. FEDERAL REPUBLIC OF NIGERIA (2012) 18 NWLR (PART 1332) 347 at 401 E – H TO 402 A per NWODO, JCA of blessed memory who said thus:
“This issue brings to force the nature of the duty on the
trial Court to evaluate evidence in criminal cases. It is trite that the appraisal of oral evidence and the ascription of probative values to such evidence is the primary duty of a trial Court. Once a trial Court has applied the established principles of law in assessment or evaluation of evidence adduced before the Court, an appellate Court would have no viable justification to interfere with the decisions notwithstanding the style adopted in the procedure for the evaluation. See: Martins V. The State (1997) 1 NWLR (Pt. 101) 23.
The rationale in support of the duty placed on the trial Court to assess or evaluate evidence is that they enjoy the privilege of listening and watching the demeanour of witnesses and are better placed to assess their credibility on oath.
The duty of the appellate Court is to look at the printed record of the evidence adduced at the trial in support of the charge to ascertain whether the trial Court has made substantive or procedural errors or has failed to make proper findings in line with the evidence adduced before the Court. Therefore where the trial Court has appropriately evaluated the evidence and appraised the
facts, it is not the business of an appellate Court to substitute its view for those of the trial Court.
However, where the trial Court fails in its role to evaluate the evidence or properly appraise the facts based on the evidence before the Court the appellate Court is in as good a position to review the evidence and proceed to draw the necessary inferences from the evidence in the printed record, see: Mogaji v. Odofin (1978) 4 SC 91 at 93-94.”
See also STEPHEN HARUNA VS. THE ATTORNEY GENERAL OF THE FEDERATION (2012) 9 NWLR (PART 1306) 419 at 438 E – F where GALADIMA, JSC had this to say:
“There was other issue requiring my emphasis whether there was evaluation by the trial Court. It is instructive to note that evaluation of evidence and ascription of relevant probative value thereto is the primary duty of the trial Court who had the opportunity to see and hear the parties and assessed the witnesses. The trial Judge has the advantage of seeing the witnesses, watching their demeanour and hearing them gives evidence.”
In the same report ADEKEYE, JSC on page A – B said:
“Where the trial Court
unquestionably evaluate the evidence and exhaustively appraised the facts. It is not the business of appellate Court to substitute his own views for that of the trial Court. It is only where and when it fails to evaluates such evidence properly or at all that an appellate Court can intervene and re-evaluate such evidence. STATE V. AJIP (2000) 7 SC (Pt. 1) page 24, (2000) 11 NWLR (Pt. 678) 434.”
I am of the view that what is important under this issue is to find out what are the ingredients of the offences for which the Appellant was charged and to wade through the evidence led at the trial in order to discern whether the ingredients of the offence charged have clearly or positively linked the Accused/Appellant with the commission of the offence.
The offence for which the Appellant was arraigned as aforesaid is murder. What constitutes the elements or ingredients of murder have been stated and restated in numerous cases.
See: (1) DARE JIMOH VS. THE STATE (2014) 11SCM 216 at 239 A – I to 240 A – B per ARIWOOLA JSC who said:
“As earlier noted, the substantive offence with the appellant was charged is murder. By the
Criminal Code Law, an offence of murder is committed when a person unlawfully terminates the life of or kills another under any of the following circumstances, that is to say:
1. If the intends to cause the death of the person killed, or that of some persons;
2. If the offender intends to do the person killed or to some other persons some grievous harm.
3. If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;
4. If the offender intends to do grievous harm to some persons for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant or for the purpose of facilitating the flight of an offender who has committed or attempted to commit such an offence;
5. If death is caused by administering any stupefying or overpowering things for either of the purposes last aforesaid;
6. If death is caused by willfully stopping the breath of any person for either of such purposes;
In the second case above, it is immaterial that the offender did not intend to hurt the particular
person who is killed.
In the third case, it is immaterial that the offender did not intend to hurt any person. In the three last cases, it is immaterial that the offender did not intend to cause death or did not know that death was likely to result.
However, the law is trite that in a charge of murder, the burden of prove is squarely on the prosecution, to establish that the deceased died; that the death was cause by the accused; that the accused intended to either kill the victim or cause grievous harm on him. See Francis Durwode vs. The State (2000) 15 NWLR (pt. 691) 467; (2001) FWLR (pt. 36) 950; Basil Akpa vs. The State (2008) 8 SCM 68 at 78; Ahmed vs. State (2001) 18 NWLR (pt.746) 622, (2002) 1 SCM, 33; State vs. Sadu (2001) 15 NWLR (pt. 735) 102; Sabina C. Madu vs. The State (2012) 15 NWLR (pt. 1324) 405; (2012) 6 SCNJ 129; (2012) 50 NSCQR 67; (2012) All FWLR (pt. 641) 1416; (2012) 6 SC (pt. 1) 80.
In other words, in a charge of murder, it is a duty the prosecution is bound to discharge by proving the death of the victim, responsibility of the accused by act or omission, intentional act or omission of the accused with knowledge that it
could cause grievous bodily harm or death. It must be established by the prosecution that the said act or omission indeed caused death but not that it could have caused death. See; Ubani & Ors. vs. State (2004) FWLR (pt. 191) 1533; (2003) 18 NWLR (pt. 851) 224; Godwin Igabele vs. The State (2006) 3 SCM 143 at 151; (2006) 6 NWLR (pt. 975) 100.”
(Underlined mine)
(2) UMARU ADAMU VS. THE STATE (2014) 8 SCM 1 at 16 E – I, per ARIWOOLA JSC who said:
“Homicide generally means “the killing of one person by another”. It is also “the fact of purposely, knowingly, recklessly, or negligently causing the death of another human being”. But culpable homicide means a wrongful act that results in a person’s death but does not amount to murder. See: Black’s Dictionary, Ninth Edition pages 802 and 803.
However, for the prosecution to secure conviction in a charge of culpable homicide with death under the Panel Code, as in the instant case, the following ingredients must be established.
(i) the death of the deceased;
(ii) that the death resulted from the act of accused; and
(iii) that
the accused knew that is act will result in the death or did not care whether the death of the deceased will result from his act.
See: Durwode v. State (2000) 15 NWLR (Pt. 691) 467 at 487 – 488; Ogbu & Anor v. The State (2007) 4 SCM 169 at 185.”
(3) SHINA OKETAOLEGUN VS. THE STATE (2015) 9 SCM 196 at 218 D – G per OKORO JSC who said:
“Let me state clearly from the outset that in this case, there is no direct evidence that the appellant killed the deceased in the sense that nobody saw when the deceased was stabbed to death by the appellant. This is much more so in view of the fact that in a charge of murder, the prosecution has a duty to prove thus:
1. the deceased had died
2. the death of the deceased was caused by the accused.
3. the act or omission of the accused which caused the death or grievous bodily harm was its probable consequence.
See Inyang Etim Akpan Vs. The State (1994) LPELR ? 382 (SC), (1994) 9 NWLR (pt. 368) 347, Akinfe V. The State (1988) 3 NWLR (pt. 85) 729, Ogha V. The State (1992) 2 NWLR (pt. 22) 164, Oludamilola V. State (2010) 8 NWLR (pt. 1197) 565, (2010) 8 NWLR (pt.
1197) 565, (2010) 5 SCM, 166.”
The whole gamut of the evidence before the Court below did not in any way link the Appellant directly with the death of the victim. The Sheet anchor dramatically held on to by the prosecution is the confessional Statement Exhibit 5 wherein the 1st Accused claimed that the 2nd and 7th Accused hired him and the 4th and 6th Accused person to kill Chief (sir) Augustine Ndukwu at his home country at Umudafa Awo Mbieri, Imo State on 4th day of November, 2010.
The said 1st Accused made almost 20 Statements, some confessional others not confessional. Though he mentioned Appellant by an alias ?Unyi? in his Statement Exhibit 5 as being co- partners in crime but like an undulating waves of Ocean he retracted in Exhibit ?C?. He (1st Accused) now said in Exhibit ?C? that Appellant and 6th Accused (the Appellant in CA/OW/383C (A)/2013) were not parties to the heinous crime of murder for which they were all charged. He even (1st Accused) boldly owned up to the killing of the victim who was his relation, benefactor and uncle. That he 1st Accused did the act with PW2 who gave evidence at the
proceedings.
The Appellant has with all strength he could muster through his learned Counsel Chief F. O. Onyebueke strongly contended that there was no evidence against him linking him with the murder of Chief Sir Ndukwu. That the only evidence that purportedly connected him was the retracted Statement of 1st Accused in Exhibit 5 which he countermanded in Exhibit “C”.
I have calmly read the evidence of the witnesses (six of them) called by the prosecution. I have read the Confessional Statements of the 1st Accused admitted in evidence particularly Exhibits 5, “C” and 16 respectively which the prosecution relied heavily upon. I have found that the Appellant is right in his vehement submissions that there is no iota of evidence before the trial Court linking him with the offence of murder for which he was charged other than the mention of his alias or name UNYI in Exhibit 5. The Respondent?s learned Counsel spiritedly defended the Judgment of lower Court contending that the trial Judge did not rely on any Statement made by 1st Accused but on other pieces of evidence proffered and tendered by the prosecution.
This
contention was debunked even by the submissions made in the Respondents Brief relying on the very Confessional Statements of the 1st Accused in Exhibits “5” and “16” as indicating that Appellant was among the murderers. I have copious quoted all the aforesaid submissions of Respondent earlier on in this Judgment. I have also quoted the findings made by the trial Judge against the Appellant all of which revealed clearly that there was no evidence before the trial Court upon which the Appellant could be convicted. The trial Judge left no one in doubt that he relied heavily on the Confessional Statements of the 1st Accused particularly Exhibits “5” “9” and “16” to found conviction and sentence imposed or inflicted on the Appellant.
Pursuant to Sections 28 and 29 of the Evidence Act 2011 a Confessional Statement which is a direct acknowledgment of elements or ingredients of an offence is solely relevant and admitted against the maker of the confessional Statement.
See: (1) PETER ILIYA AZADABA VS. THE STATE (2014)
12 SCM 151 at 170 I to 171 A – B per OKORO, JS C who held:
“By Section 28 of the Evidence Act a confession statement is a statement made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. Such a statement is admissible if it is direct and positive and relates to his own acts, knowledge or intention, stating or suggesting the inference that he committed the crime charged. See Akpan V. State (1992) 7 SCNJ 22, Yesufu V. State (1976) 6 SC 167, Obasi V. State (1965) NWLR 129 Ogoala V. The State (1991) 2 NWLR (pt. 175) 509.
The law is also settled that an accused person can be convicted based on his confession or admission alone if it is direct, positive and unequivocal as to the commission of the offence charged. See Akpan v. State (supra).”
(2) TIRIMISIYU ADEBAYO VS. THE STATE (2014) 8 SCM 34 at 65 G per BODE RHODES ? VIVOUR JSC who said:
“Confessional Statements are only admissible in Court against the maker (i.e. the accused person), if it is a voluntary acknowledgment of guilt.”
Thus all Statements Confessional or otherwise made by 1st Accused and admitted at the trial in this Criminal Proceedings are only
admissible against 1st Accused person UCHENNA NDUKWU, ONLY and NOT against the Appellant herein.
See: Sections 28 and 29(1) of the Evidence Act which provide:
” 28. A Confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.
29(1) In any proceeding, a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the Court in pursuance of this Section.”
More importantly, a confession made against a co-accused in a Criminal trial/Proceedings where you have more than one Accused shall not be evidence against a Co-accused who is not the maker of the Confessional Statement unless the Co-accused against whom the incriminating confession is made is confronted with it and he, the co-accused adopts or acknowledges the said Confession of the Co-accused otherwise the Confessional Statement cannot be used against him. See Section 29 (4) of the Evidence Act 2011 which provides:
“29(4) Where more persons than one are charged jointly with an offence
and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such Statement into consideration as against any of such other persons in whose presence it was made unless he adopts the said Statement by words or conduct.”
The Appellant has not been shown either by words or by conduct to have adopted or accepted the facts in the Confessional Statement of 1st Accused. The Statements or the Confessional Statements of 1st Accused, all and singular particularly Exhibits “5” ?”C” or “16” cannot be used against Appellant.
See:
(1) DARE JIMOH (2014) 11SCM 216 at 241 E – H per ARIWOOLA JSC who said:
“What then is confession? It is “criminal suspect’s oral or written acknowledgment of guilt, often including details about the crime? alleged. In other words, a confession is an acknowledgment in express words, by the accused in a criminal case, of the truth of the main fact charged or of some essential part of it.” See; Black Law Dictionary, Ninth Edition page 338.
A confession is
an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime, See; Akpan vs. State (2001) 7 SC (pt. 1) 124; Nwachukwu vs. State (2002) 7 SC (pt. 1) 124. Daniels vs. State (1991) 8 NWLR (Pt. 212) 715. Onuoha vs. The State (1987) 4 NWLR (pt. 65) 331.
The law is that where more persons than one are charged jointly, with a criminal offence and a confession made by one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said statement by words or conduct. See; Section 27, Evidence Act; Alarape vs. State (2001) 2 SC 114, Wakala vs. The State (1991) 8 NWLR (pt. 211) 552.”
(2) THE STATE VS. JAMES GWANGWAN (2015) 9 SCM 253 at 271 D – G per OKORO JSC who said:
“One other issue which afflicted this case relates to the decision of the learned trial Judge that the evidence of PW5 and the co-accused persons corroborated the alleged confessional statement of the respondent. Happily, the lower Court shot down the said
decision. The reason is not far-fetched. First, where an accused person makes a confessional statement as to his participation in a crime, he is not confessing for his accomplices. An accused person’s confession is only evidence against him and not against co-accused persons and it is a misdirection which may lead to the quashing of the conviction. However, a confessional statement of a co-accused can only be used against an accused person if he voluntarily adopts it. See: Ozaki V. State (1990) LPELR – 2888 (SC), (1990) 1 NWLR (pt. 124) 92, Evbuomwan V. COP (1961) WNLR ? 2888 (SC), (1990) 1 NWLR (pt. 124) 92, Evbuomwan V. COP (1961) WNLR 257. In the instant case, the use of the statement of co-accused persons against the respondent without him adopting them as his, was unlawful and has a vitiating effect on his conviction by that Court.”
Consequently Issue (A) is hereby resolved in favour of the Appellant.
The Keystone under Issue 2 (B) is whether the Respondent proved the charge of murder beyond reasonable doubt in this Case.
Proof beyond reasonable doubt does not mean proof beyond every shadow of doubt. What is
important is to ensure that all the ingredients of the offence were/are established against the Accused. See: FABIAN NWATURUOCHA VS. THE STATE (2011) 6 NWLR (PART 1242) 770 at 186 F -G where FABIYI, JSC said:-
“… it is not proof beyond all iota of doubt as stated by Uwais, CJN in Nasiru vs. The State (1999) 2 NWLR (Pt. 589) 87 AT 98. One thing that is certain is that where all essential ingredients of the offence charged have been proved or established by the prosecution, as done in this matter, the charge is proved beyond reasonable doubt. See: Alabi vs. The State (1993) 7 NWLR (Pt. 307) 511 at 523 Proof beyond reasonable doubt should not be stretched beyond reasonable limit. Otherwise, it will clear.”
And recently in the case of OLUSINA AJAYI VS. THE STATE (2013) 3 SCM 1 at 25 E. FABIYI JSC also added:-
“What then is proof beyond reasonable doubt? It simply means the establishment of all ingredients of the offence charged in tandem with the dictates of Section 138 of the Evidence Act and Section 36(5) of the 1999 Constitution as amended.”
I am not at all in doubt that the Respondent in this appeal
actually failed to establish any of the ingredient or elements of offence of murder for which the Appellant was charged. The conviction and sentence were based on shaky foundation or quicksand. The onus and Standard of proof set by Law on Section 135 (1) of the Evidence Act must be attained by the prosecution in any Criminal Proceeding to secure conviction and to sustain the prosecution’s case against an Accused.
In view of the resolution of Issue A in favour of the Appellant all it means is that the offence of murder or any offence whatsoever is not proved against the Appellant. The prosecution’s case against the Appellant leaves much to be desired.
See: THE STATE VS. JAMES GWANGWAN (2015) 9 SCM 253 at 267 I -269 A – B per OKORO, JSC who said:
“It is now well settled that in our criminal jurisprudence, in order for the prosecution to succeed whenever the commission of a crime is in issue against an accused person, he is under a duty to establish its case beyond reasonable doubt. It must however be noted that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. I need to emphasize that in
criminal proceedings, the onus is on the prosecution to establish the guilt of the accused beyond reasonable doubt and this would be achieved by ensuring that all the necessary and vital ingredients of the charged are proved by evidence. See Yongo V. Commissioner of Police (1992) LPELR – 3528 (SC), (1992) 2 SCNJ 113, Ogundujan V. State (1991) LPELR -? 2333 (SC), (1991) 3 NWLR (pt. 181) 519, Akibge V. IOG (1959) A FSC 2013, Onubogu V. The State (1974) 9SC 1 at 20, Babuga V. State (1996) LPELR – 701 (SC), (1996) 7 NWLR (pt. 460) 279.”
I agree that the charge of murder against the Appellant was not proved beyond reasonable doubt.
It is also not out of place to mention that the lower Court found it convenient to discharge and acquitted the 2nd and 7th Defendants/ Accused who the prosecutions said procured the Appellant and some other persons to kill the victim. That fact emanated from the same Exhibit “5” the Confessional Statement of 1st Accused person. It was not used against any of the 2nd and 7th Accused persons. What is good for the goose is also good for the gander.
The conclusion I have reached is that the
Appellant’s appeal is meritorious and it is hereby allowed.
The decision of the Imo State High Court contained in the Judgment of Honourable Justice NGOZI OPARA delivered on the 18th day of February, 2013 is hereby set aside as against the Appellant in this appeal.
The conviction and sentence imposed upon the Appellant are hereby set aside.
In their stead the Appellant is hereby discharged and acquitted.
The Appellant shall be released forthwith from Prisons Custody.
RAPHAEL CHIKWE AGBO, J.C.A.:
I was privileged to read in advance the lead judgment in this case delivered by my learned brother OLABISI IGE, JCA and I agree with him that the case against the Appellant was not established beyond reasonable doubt. I too allow the appeal and discharge and acquit the Appellant.
FREDERICK OZIAKPONO OHO, J.C.A.:
I had the opportunity of reading the draft of the judgment just delivered by my learned brother, PETER OLABISI IGE, J.C.A. and I am in complete agreement with his reasoning and conclusions in allowing the Appeal. I also abide by the consequential orders made in the
judgment.
?
Appearances
CHIEF F. O. ONYEBUEKEFor Appellant
AND
MRS. K. A. LEWEANYA (ASSISTANT CHIEF STATE COUNSEL)For Respondent
