THE STATE v. STANLEY NDUDI ONWUERIAKU & ANOR
(2017)LCN/10160(CA)
In The Court of Appeal of Nigeria
On Monday, the 3rd day of July, 2017
CA/OW/242C/2014
RATIO
BURDEN OF PROOF: WHETHER THE ONUS TO PROVE THE GUILT OF THE ACCUSED SHIFTS
Now, the onus of proof is on the prosecution to prove the guilt of the accused beyond reasonable doubt. The onus to prove the guilt of the accused does not shift. It always remains on the prosecution See ONUBOGU v THE STATE (1974) 9 S.C. 1; Stephen v THE STATE (1986) 5 NWLR (pt.46) 918. PER TUNDE OYEBANJI AWOTOYE, J.C.A.
THE DISCRETION OF THE PROSECUTION TO CALL WITNESS: THE POSITION OF THE LAW ON THE DISCRETION OF THE PROSECUTION TO CALL WITNESS TO PROVE HIS CASE
According to Ejiwunmi J.S.C in NIGERIAN AIR FORCE v EX SQUADRON LEADER A. OBIOSA (2003) 4 NWLR (PT. 810) 233.
“It is settled law that in a criminal case, the onus throughout the trial is on the prosecution to prove its case beyond reasonable doubt. In view of this settled principle, it is left to the prosecution to call such witnesses as would enable the proof of its case beyond reasonable doubt.” In calling witnesses to prove its case, the prosecution has discretion. It only needs to call enough material witnesses to prove its case. See NIGERIAN AIR FORCE v EX SQUARON LEADER A. OBIOSA (supra). PER TUNDE OYEBANJI AWOTOYE, J.C.A.
CRIMINAL INVESTIGATION: THE POSITION OF THE LAW ON CRIMINAL INVESTIGATION; EFFECT OF AN INCOMPLETE INVESTIGATION
However in its investigation, the prosecution does not have a discretion. It does not have a discretion, like a Court, to pre-determine the guilt of suspects thereby picking and choosing whom to investigate and whom not to investigate out of the suspects.
It needs be emphasized that an accused does not have to prove his innocence. See OLUSINA ATAYI v THE STATE (2013) LPELR – 19941 (S.C.) OKOH v THE STATE (2014) LPELR – 22589 (S.C.) There is a presumption of innocence in favour of the accused. See S. 36(5) of the 1999 Constitution (as amended). It therefore behoves on the prosecution to present a complete and full picture of the result of investigation in order not to give room for reasonable doubt as to the guilt of the accused. If the accused at the time of his arrest and interrogation points to another person as the culprit who committed the crime, and claims innocence, the police should investigate his side of the story, The constitutional presumption of innocence in favour of the accused has to be dislodged and this can only be done by complete investigation as opposed to haphazard investigation. Every reasonable doubt in the prosecution’s case against the accused has to be resolved in favour of the accused. See WILLIAMS v THE STATE (1992) NWLR (PT 261) 515, OGUNDIYAN V STATE (1991) 3 NWLR (PT 181) 519; THE STATE V AZEEZ (2008) 14 NWLR (PT 1108) 439 at 483. An incomplete investigation creates room for reasonable doubt as to the guilt of the accused. Such a doubt therefore has to be resolved in favour of the accused. PER TUNDE OYEBANJI AWOTOYE, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
THE STATE Appellant(s)
AND
1. STANLEY NDUDI ONWUERIAKU
2. ANYALEWECHI ONWUERIAKU Respondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal of the complainant at the lower Court vide its Notice of Appeal filed on 9/1/2014 against the decision of Abia State High Court sitting at Aba decided on 18/12/2013.
The accused persons at the lower Court were charged with murder contrary to Section 319(1) of the Criminal Code Cap 30 of the Eastern Nigeria 1963 as applicable in Abia State.
The charge read thus:
?At the session Holden at Obehie on the 22nd day of May 2008, the Court is informed by the Attorney-General of Abia State on behalf of the State that STANLEY NDUDI ONWUERIAKU and ANYALEWECHI ONWUERIAKU are charged with the following offence:
STATEMENT OF OFFENCE:
MURDER, contrary to Section 319(1) of the Criminal Code Cap 30 Laws of Eastern Nigeria 1963 as applicable in Abia State.
PARTICULARS OF OFFENCE
STANLEY NDUDI ONWUERIAKU AND ANYALEWECHI ONWUERIAKU on the 2nd day of September, 2006 at Umukwor Asa in the Ukwa Judicial Division murdered one Owen Joshua (Deceased).?
After hearing the parties, the learned trial Judge
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held inter alia thus:
?It is my finding therefore that the investigation of this case, having been grossly inconclusive based on all the fore-going, I hold that the prosecution has failed to prove that the death of the deceased had resulted from the act of the 1st accused person and DW2 herein, Stanley Onwueriaku.
The DW1 having already been vindicated by the evidence of the prosecution herein, I hereby find and hold that the prosecution has failed to prove this case against the two accused persons, as very material doubts have been created by the said in competent investigation of this case, and in accordance with the law, all such reasonable doubts are hereby resolved in favour of the accused persons.
Accordingly, the 1st accused person Stanley Ndudi Onwueriaku is hereby discharged and acquitted of the charge of murder in the said information before the Court.
The 2nd accused person, Anyalewechi Onwueriaku, is also discharged and acquitted of the offence of the said murder of Owen Joshua, in the charge in the information before this Court.
Accordingly I so order.?
?
Miffed by the above decision, the prosecution filed a
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one ground Notice of Appeal on 9/1/2014 and subsequently on 13/2/2014, four additional grounds of appeal. The grounds of appeal are as follows:-
GROUND ONE
The decision or judgment of the learned trial judge is unreasonable, unwarranted and cannot be supported having regard to the evidence before the Court.
GROUND TWO
ERROR IN LAW
The learned trial judge erred in law by importing evidence into the evidence of PW4
PARTICULARS
i. In page 267 of the records of appeal, the learned trial judge held that PW4 under cross examination told the Court that Obinna Dike had been away from the village for 5 months without stating to the Court from whom he got the said information.
ii. A complete perusal of the cross examination of PW4 on pages 119 and 120 of the records of appeal shows that PW4 told the Court that he did a complete investigation of the matter. There was no question put to him by the defence counsel as to how he got the information as can be seen in page 123 of the records of appeal.
iii. The trial judge was wrong when he held that PW4 did not disclose the source of his information because there was no need
3
for him to do so having said that he conducted the investigation of the matter properly.
GROUND THREE
ERROR IN LAW
The learned trial judge erred in law when he held in paragraph 2 of Page 267 of the records of appeal that PW4 is aware that Levi Nwagbara, Faith Nwagbara and Humble Nwagbara had land case with the accused persons.
PARTICULARS
i. In page 123 of the records of appeal, a question was put to PW4 thus: You know that Levi Nwagbara, Faith Nwagbara and Humble Joshua have a serious land matter with the accused persons. PW4 then gave the following answers; I do not know, but they are not the only boys in that village. If they have a land matter, it is not enough for them to kill anybody.
ii. The learned trial judge therefore was wrong when he changed the evidence of PW4 in order to suite his decision by saying that PW4 was aware that the prosecution witnesses have land case with the accused persons.
GROUND FOUR
ERROR IN LAW
The learned trial judge erred in law in Paragraph 3 of Page 167 of the records of appeal when he rejected the evidence of the prosecution witnesses on the ground that the witnesses
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were the relations of the deceased.
PARTICULARS
i. It is a trite law that the relations of a deceased person even a parent to a deceased person can testify in a matter as to what led to the death of the deceased.
ii. The learned trial judge therefore was wrong when he allowed himself to be carried away by sentiments and not be the lay down principals of law by not upholding the evidence of PW1, PW2 and PW5 on grounds that they are relations of the deceased person.
GROUND FIVE
ERROR IN LAW
The learned trial judge erred in law when he rejected the evidence of prosecution witnesses and held that the prosecution has failed to proof that the death of the deceased has resulted from the act of the 1st accused without showing where the evidence of the prosecution witnesses was contradicted or controverted during cross examination.
PARTICULARS
i. The law is settled that where the evidence adduced by the prosecution is not contradicted or controverted in any material way especially during cross examination, the Court must act on such evidence. The evidence of the prosecution witnesses in the instant case was not contradicted or
5
controverted in any way and there was no legal basis for the learned trial judge to reject same.
ii. There was no inconsistency in the entire evidence adduced by the prosecution and in particular, there was no inconsistency between the evidence of PW1, PW2 and PW5 or any other prosecution witnesses to warrant the trial Court to reject the evidence of these witnesses.
iii. The law is settled that where the offences with which an accused person was charged has been proved beyond reasonable doubt and such an accused person is not available by any legal defence, the Court has no other option than to convict.
GROUND SIX
ERROR IN LAW
The learned trial judge also erred in law when he believed the evidence of the 1st Accused person.
PARTICULARS
i. The testimony of the 2nd Accused person did not corroborate the evidence of the 1st Accused person. What the 2nd Accused person said was that he was not at the scene of the crime when the incident took place.
ii. It was therefore wrong for the learned trial judge to believe the uncorroborated evidence of the 1st Accused which was merely denial in nature and thereby reject the substantiated
6
evidence of the prosecution witnesses.
The record of appeal in this appeal was transmitted to the Registry of this Court on 27/6/2014 and deemed properly transmitted on 26/2/2015.
Parties subsequently filed and exchanged briefs of argument. Appellants? brief of argument which was prepared by AGBAI OBASI Principal State Counsel Abia State was filed on 24/6/2016.
Learned counsel formulated two issues for determination in his brief. The issues are:
?1) Whether the learned trial judge was right to hold that for the fact that PW4 did not specify the source of his information that the PW4 did not do a proper investigation of the matter and whether the evidence of PW4 could be discredited on grounds that he was aware that the accused persons had a land matter with the complainant?s family members.
2) Whether the learned trial Judge was right to reject the evidence of PW1, PW2 and PW5 on grounds that the witnesses were the relations of the deceased and whether the learned trial judge did not misdirect himself in law in holding that the prosecution has failed to prove that the death of the deceased had resulted from the
7
act of 1st accused without showing where the evidence of the prosecution witnesses was contradicted or controverted during cross- examination.?
The Respondents brief of argument was prepared by their counsel Nnaemeka Nnaji and filed on 18/8/2016.
Learned counsel also formulated one issue for determination as follows:
?1) Whether the trial Court in the evaluation of the evidence of witnesses discredited the prosecution witness (PW4) on the ground of none disclosure of their informant (sic)?
I have carefully considered the issues as formulated by the parties in this appeal.
In my respectful view, the issues can be condensed and reformulated into the following sole issue:-
WHETHER THE DECISION OF THE LEARNED TRIAL JUDGE DISCHARGING AND ACQUITTING THE ACCUSED PERSONS WAS RIGHT IN THE CIRCUMSTANCES OF THE CASE.
I shall determine this appeal in the light of the above.
SUBMISSIONS OF COUNSEL AND RESOLUTION OF SOLE ISSUE
Learned appellants? counsel submitted that the learned trial Judge wrongly jettisoned the answers given by PW4 the investigating Police Officer and gave judgment that was not based
8
on the evidence before him. He cited EGWUNEWU v EGEAGWU (2007) 6 NWLR (PT 1031) at 431, 437 and EBE v COP (2008) 4 NWLR PT 189, 198.
He contended further that the learned trial Judge erred when he erroneously held that PW4 was aware that the accused persons had a land matter with the family of the deceased even when PW5 had earlier testified on oath that they did not have any land matter with the accused persons.
In further argument, learned appellants? counsel posited citing Section 175 (1) of the Evidence Act 2011 that all persons were competent to testify before a Court. He relied onMAIGARI v State (2010) 16 NWLR PT 1220 P. 439, 453. He submitted that the learned trial Judge was wrong to have rejected the testimonies of PW1, PW2 and PW5 who were eye witnesses of the incident. He relied on STATE v USMAN (2005) 1 NWLR (Pt 908) at 80, 105.
Learned appellants? counsel asserted further that any inconsistency in the evidence of the prosecution witnesses did not affect the direct evidence to the effect that the 1st accused that gave the deceased matchet cut.
He finally urged the Court to allow the appeal.
?
Learned counsel for
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the Respondents on the other hand urged the Court to dismiss the appeal. He argued that the investigation conducted by the prosecution was one-sided. He urged the Court to hold that there was no evidence on which the trial Court could have acted. He relied on AROWOLO v CHIEF IFABIYI (2002) FWLR PT 95, 296.
I have carefully considered the submissions of learned counsel on both sides. I am not unmindful of the objection raised by the Respondent that the Amended Notice of Appeal was not properly signed. I have carefully looked at the file copy of the amended Notice of appeal filed on 6/6/2016. It was signed by AGBAI OBASI, Principal State Counsel Public Prosecutions Ministry of Justice Abia State Nigeria. In my view, it is in substantial compliance with the provision of ORDER 17 Rule 4(1) The Court of Appeal Rules 2016. The provision reads thus:
?1) Every notice of appeal or notice of application for leave to appeal a notice of application for extension of time within which such notice shall be given, shall be signed by the Appellant himself or by his legal representative except under the provision of Sub-rules (5) and (6) of the Rule.?<br< p=””
</br<
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The Objection is in my respectful view a non sequitur. It is therefore overruled.
Now to the main appeal, the facts of this case as presented by the prosecution (the relevant part of the facts) are as follows:
(1) The two accused persons were arraigned before the lower Court on a charge of murder of Owen Joshua.
(2) Owen Joshua was the youth leader at Umuokwu Village.
(3) On 2/9/2006 around 2 p.m. there was a meeting of the community with representatives of an oil and gas company at the village town hall.
(4) The meeting degenerated into confusion.
(5) Outside the hall, the 1st accused cut Owen Joshua (the deceased) with a matchet on the head. The injury sustained led to his death.
(6) 2nd accused also matcheted PW1, Faith Joshua Nwagbara on the hand.
(7) From the prosecution?s case, it appears the following witnesses were eye witnesses-PW1, PW2 and PW5 each identified the 1st accused as the person who cut the deceased with matchet outside the Court hall.
The case of the accused persons on the other hand is as follows:
(1) 1st accused in his evidence said:
?All of us, I saw Obinna Dike, the
11
Eze?s son, came up with matchet and as he raised his hand to cut me and because he was coming from behind Owen, I douched out of the way and the matchet hit Owen on his head. Obinna Dike then pursued me with the matchet and ran away from the place; when I outran him, the said Obinna Dike then went back.?
(2) When questioned under cross-examination
Question: Were you the only people who saw when Obinna gave the deceased the matchet cut or did the others at the meeting see it as well?
Answer: ?It was not I alone other people in the hall saw it including Levi Nwannete who does not want to tell the truth because he is acting on the Eze?s instruction.?
Question: Did the people in the hall also see when Obinna Dike pursued you and you ran away?
Answer: ?Yes, they would see.?
3) The 2nd accused denied being involved in the incident.
In the face of the above facts, the learned trial Judge found as follows:
?It is my finding therefore that the investigation of this case, having been grossly inconclusive based on all the fore-going, I hold that the prosecution has failed to prove that
12
the death of the deceased had resulted from the act of the 1st accuse person and DW2 herein, Stanley Onwueriaku.
The DW1 having already been vindicated by the evidence of the Prosecution herein, I hereby find and hold that the prosecution has failed to prove this case against the two accused person, as very material doubts have been created by the said incompetent investigation of this case, and in accordance with the law, all such reasonable doubts and hereby resolved in favour of the accused persons.
Accordingly, the 1st accused person Stanley Ndudi Onwueriaku is hereby discharged and acquitted of the charge of murder in the said information before the Court.
The 2nd accused person, Anyalewechi Onwueriaku, is also discharged and acquitted of the offence of the said murder of Owen Joshua, in the charge in the information before this Court.
Accordingly I so order.?
Now, the onus of proof is on the prosecution to prove the guilt of the accused beyond reasonable doubt. The onus to prove the guilt of the accused does not shift. It always remains on the prosecution See ONUBOGU v THE STATE (1974) 9 S.C. 1; Stephen v THE STATE
13
(1986) 5 NWLR (pt.46) 918.
According to Ejiwunmi J.S.C in NIGERIAN AIR FORCE v EX SQUADRON LEADER A. OBIOSA (2003) 4 NWLR (PT. 810) 233.
?It is settled law that in a criminal case, the onus throughout the trial is on the prosecution to prove its case beyond reasonable doubt. In view of this settled principle, it is left to the prosecution to call such witnesses as would enable the proof of its case beyond reasonable doubt.?
In calling witnesses to prove its case, the prosecution has discretion. It only needs to call enough material witnesses to prove its case. See NIGERIAN AIR FORCE v EX SQUARON LEADER A. OBIOSA (supra). However in its investigation, the prosecution does not have a discretion. It does not have a discretion, like a Court, to pre-determine the guilt of suspects thereby picking and choosing whom to investigate and whom not to investigate out of the suspects.
It needs be emphasized that an accused does not have to prove his innocence. See OLUSINA ATAYI v THE STATE (2013) LPELR ? 19941 (S.C.) OKOH v THE STATE (2014) LPELR ? 22589 (S.C.) There is a presumption of innocence in favour of the accused. See S.
14
36(5) of the 1999 Constitution (as amended). It therefore behoves on the prosecution to present a complete and full picture of the result of investigation in order not to give room for reasonable doubt as to the guilt of the accused. If the accused at the time of his arrest and interrogation points to another person as the culprit who committed the crime, and claims innocence, the police should investigate his side of the story, The constitutional presumption of innocence in favour of the accused has to be dislodged and this can only be done by complete investigation as opposed to haphazard investigation. Every reasonable doubt in the prosecution?s case against the accused has to be resolved in favour of the accused. See WILLIAMS v THE STATE (1992) NWLR (PT 261) 515, OGUNDIYAN V STATE (1991) 3 NWLR (PT 181) 519; THE STATE V AZEEZ (2008) 14 NWLR (PT 1108) 439 at 483.
An incomplete investigation creates room for reasonable doubt as to the guilt of the accused. Such a doubt therefore has to be resolved in favour of the accused.
In this appeal, the accused persons (respondents) wasted no time in pointing accusing fingers at Obinna Dike. They denied
15
being the culprit but accused Obinna Dike as the assailant of the deceased. They said so at the police station in their respective statements. They repeated same in their respective evidence in Court. The police neither arrested nor took the statement of the said Obinna Dike. In fact no concrete effort was made to investigate the truth of the accusation against Obinna Dike. The learned trial Judge was rightly left in doubt and the doubt was reasonable. His Lordship therefore rightly resolved the doubt in favour of the accused. No wonder the learned trial judge in his judgment on page 267-268, of the record of appeal found thus:
“I hereby find and hold that the prosecution has failed to prove this case against the two accused persons as very material doubts have been created by the said incompetent investigations of this case, and in accordance with the law, all such reasonable doubts and hereby resolved in favour of the accused persons.” I completely agree.
I resolve the sole issue in this appeal in favour of the Respondent.
This appeal lacks merit. It is hereby dismissed.
I hereby affirm the decision of Abia State
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High Court in Suit No HUK/3C/2008 in THE STATE v STANLEY ONWUERIAKU & ONE OTHER decided on 18/12/2013 discharging and acquitting the accused persons i.e. the Respondents.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree with my learned brother Awotoye JCA and I agree with him that there is want of merit in this appeal and it should be dismissed.
ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusions of my learned brother, Awotoye, JCA, in the lead judgment that the appeal lacks merit.
I too dismiss it.
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Appearances
V. E. Bob-Ogu, Senior State Counsel, Abia StateFor Appellant
AND
Emeka Nneji EsqFor Respondent
