CHINEDU EKUMA v. THE STATE
(2018)LCN/12432(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of May, 2018
CA/E/29C/2017
RATIO
CRIMINAL LAW: INGREDIENTS OF MURDER
“In every case of murder, there are three essential ingredients to be proved by the prosecution as follows:
a) That the deceased died
b) That it was the unlawful act or omission of the appellant which caused the death of the deceased.
c) That the act or omission of the Appellant which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence. See Itu V. State (2016) 5 NWLR Pt. 1506, Pg.465 para B-F; Madu V. The State (2012) 15 NWLR Pt. 1324 Pg. 405. The three modes of proving the ingredients of the offence are:
a) By direct evidence of eyewitness
b) By confession, and
c) By circumstantial evidence.” PER HELEN MORONKEJI OGUNWUMIJU J.C.A.
EVIDENCE: WHETHER THE COURT CAN PICK THE EVIDENCE TO BELIEVE
“The Court cannot pick and choose which portion of the evidence of prosecution witness to believe. It is either the witness is a truthful witness or an outright liar whose total evidence must be evaluated as credible or incredible as the case may be. See: Kayili V. Yilbuk & Ors (2015) LPELR -24323(SC). It is only an accused who has the luxury of stating several versions of a story and the Court is bound to consider all the versions before arriving at a conclusion as regards his credibility on each fact to make a finding in that regard. See: Ayeni v. The People of Lagos State (2016) LPELR-41440(CA); Osokoya v. Onigemo (2017) LPELR-42730(CA); Ezemba v. Ibeneme (2009) 14 NWLR (Pt. 798) 623; Ajide v. Kelani (1985) 3 NWLR (Pt.12) 245.” PER HELEN MORONKEJI OGUNWUMIJU J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT
“For a confessional statement to be admissible against an accused person, it must be a free, positive, true, unequivocal, direct and positive confession of guilt. See: Oseni v. The State (2012) LPELR-7833 (SC).” PER HELEN MORONKEJI OGUNWUMIJU J.C.A.
Before Their Lordships
HELEN MORONKEJI OGUNWUMIJUJustice of The Court of Appeal of Nigeria
JOSEPH TINE TURJustice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFFJustice of The Court of Appeal of Nigeria
Between
CHINEDU EKUMAAppellant(s)
AND
THE STATERespondent(s)
HELEN MORONKEJI OGUNWUMIJU J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Ebonyi State, Abakaliki Judicial Division, delivered by Hon. Justice B.A.N. Ogbu on 24/06/16 wherein the learned trial judge convicted the Appellant for the offence of murder and sentenced him to death by hanging.
The Appellant by the information filed on 6/11/09 was arraigned together with Michael Chukwu Obasi, Ikechukwu Nwafor, and Amaechi Nworu before the High Court of Ebonyi State, Abakaliki Judicial Division by information dated 6/11/2009 on a one count charge of murder of one Moses Akpa Nwafor to wit:
STATEMENT OF OFFENCE
MURDER contrary to Section 319(1) of the Criminal Code Cap 30 Vol. II, Laws of Eastern Nigeria as applicable in Ebonyi State.
PARTICULARS OF OFFENCE
Ikechukwu Nwafor, Amaechi Nworu, Micheal Chukwu Obasi and Chinedu Ekuma on the 22nd day of August, 2008 at Okpoduma Road, Effium in Ohaukwu Judicial Division murdered one Moses Akpa Nwafor.
In proof of its case, the prosecution called four witnesses. In the course of the trial, the prosecution called four witnesses namely PW1 Peter Eze, PW 2 Mrs. Ngozi Nwafor Akpa, PW 3 Sergeant DanjiIllya, and PW 4 ASP Elias Ude Chukwu. There were also documentary Exhibits tendered in the proceedings through PW3 and PW4, which were mainly extra judicial statements of the appellant, the co-accused persons and some of the witnesses. The Appellant testified in his own defence to the charge against him. He raised the defence of alibi and denied the charge.
The prosecution claimed that Moses Akpa Nwafor had died and it was the Appellant and the other accused persons that killed him. The prosecution claimed that the 4th accused person at trial now Appellant made a confessional statement to the effect that he and the other accused persons grievously assaulted the deceased and subsequently handed him over to some men in Benue State, who took him away and he had not been seen till date.
At the end of the trial, the Appellant and other co-accused were all convicted of the offence of murder and sentenced to death by hanging.
Dissatisfied, the Appellant filed a Notice of Appeal on 5/10/16 and deemed filed on 24/1/18. Record of Appeal was transmitted on 18/4/17 and deemed properly transmitted on 24\1\18. The Appellant’s brief was filed on 30/5/17. The Respondent?s brief was filed on 8/9/17 and deemed filed on 24/1/18. Appellant filed his reply brief on 10/10/17.
In the brief settled by J.O. ONWUJEKWE Esq, the Appellant raised two issues for determination as follows:
(1) Whether the information No HKW/5C/2009 which heralded the trial, conviction and sentence to death by hanging of the Appellant was competent and valid in Law and Whether the trial Court had the requisite Jurisdiction to have tried the Appellant as charged (Ground 11 of the Grounds of appeal)
(2) Whether the prosecution proved the guilt of the appellant beyond reasonable doubt and as required by the Law (Grounds 2-10 of the Grounds of Appeal).
In the Respondent’s brief settled by Mr. I.I. ALOBU Esq, Director, Public Prosecutions of Ebonyi State, the issues raised by the Appellant for determination were adopted by the Respondent, although it would seem that the respondent distilled a sub issue out of the two issues raised by appellant. However on a closer look at the arguments of respondent’s counsel, it is clear that he merely expatiated the issue of the jurisdiction of the High Court to try the appellant probably because of the language in which the appellant couched the issue 1. In the light of that observation, the argument of learned Appellant’s counsel that there was a third issue distilled by the respondent for which no leave was sought is of no moment. After careful perusal of both briefs, I shall crystallise the issues for determination into two issues as follows:
(1) Whether the information No HKW/5C/2009 on which the trial, conviction and sentence of the Appellant was based is competent and valid in Law and whether the trial Court had the Jurisdiction to try the Appellant.
(2) Whether the Prosecution established the guilt of the Appellant beyond reasonable doubt.
ISSUE ONE:
Learned Appellant’s counsel submitted that the holding Charge No. 373c/2008 at the Magistrates’ Court did not contain the name of the Appellant as one of the accused persons; neither did the Police report contain the name of the appellant.
Counsel further submitted that an information must have attached to it, the charge sheet, statements of offence, statements of witnesses as well as the statements of the Accused. He cited Josiah V. State (1985) 1 NWLR (Pt.1) 125 and Ogunsanya V. State (2011) 12 NWLR (Pt.1261) 401.
Counsel argued that oral evidence cannot be used to contradict, add or vary the contents of the police report to add the name of the appellant to the report as PW3 and PW4 did during trial. Counsel cited Agu v. Nicon Insurance Plc (2000) 1 NWLR Pt.677, Pg. 187; Leadway Insurance Co. LTD. v. Zeco Nigeria Ltd. (2004) 4 SCNJ; Nigerian Navy v. Garrick (2006) 4 NWLR Pt. 969, Pg. 69 at 112
The respondent’s counsel submitted that the Information with Charge No. HKW/5C/2009 which was laid against the appellant for the offence of murder, was competent and valid in law. The argument of the respondent’s counsel based solely on the facts of the case and the judgment at the trial Court was that after sufficient evaluation of the evidence, the trial Court found that there was no contention about the name of the Appellant. The trial Court also held that it was not necessary for the appellant to have been charged and held by the Magistrate Court before he could be tried by the High Court. Counsel submitted that the absence of the Appellant’s name from the police report and the holding charge at the magistrate Court has no bearing on the jurisdiction of the trial Court, as all the accused persons including the appellant were charged together before the High Court. Counsel urged the Court to resolve that issue in favour of the respondent.
Learned Respondent’s counsel further submitted that the jurisdiction to hear and determine the case at trial is conferred on the Court by Section 272 of the Constitution of the Federal Republic of Nigeria (as amended).
It was the final submission of the respondent’s counsel that the charge on information which was accompanied with proof of evidence, signed by a legal officer and tried by a judge of the High court, is competent, and consequently urged this Court to resolve this issue in favour of the respondent.
OPINION
In essence, the complaint of the appellant in this issue is whether or not there was a valid Information laid at the High Court against the Appellant.
I must mention for clarity that as inelegant and factually erroneous as the issue was couched, the argument proffered by the appellant’s counsel as contained in Para 4.04-05 of the Appellant’s brief of Argument is actually challenging or complaining that the Holding Charge No. 373C/08 at the Magistrate Court (which had no jurisdiction to charge the appellant for murder) filed on 28/10/08 did not contain the name of the appellant as he was never charged before the Magistrates’ Court. However, the information No: HKW/5c/2009 laid at the High Court on 6th November 2009, contained his name. Learned appellant’s counsel argued that this robed the trial High Court of jurisdiction to try the appellant since he was never charged at the Magistrate Court and the Police Report attached to the proof of evidence did not contain his name.
Usually, when a holding charge is laid against an accused person at the Magistrate Court, it is to enable the law enforcement agency complete their investigation and refer the case to the Director of Public Prosecution for legal advice and subsequent prosecution by the Attorney General before the Court with competent jurisdiction where the need arises.
It is of no moment in any event that the name of the appellant was not in the original charge laid against other co-accused at the Magistrate Court. What is relevant is that at the END of the Police investigation, there was thought to be enough evidence against him to warrant his prosecution with other accused persons. The Police would have sought for and obtained legal advice to prosecute the appellant. In the peculiar circumstances of this case, the deceased was allegedly taken away on the morning of 22/8/08. The other accused persons were charged to the Magistrates’ Court on a holding charge on 28/10/2008. The appellant was arrested sometime in 2009 and then charged with the others by information on 6/11/09.
Apart from the argument of learned Appellants counsel in Para 4.04 of the brief, there seems to be no coherent argument from counsel on this point. The argument in 4.05 to the effect that Information laid against an accused must have attached to it the charge sheet used to hold him at the Magistrate Court is completely misconceived and authorities cited by learned counsel do not support that proposition. They are civil cases on the point that oral evidence cannot be used to contradict documentary evidence. What l can glean from that argument is that the information filed at the High Court cannot be used to contradict the charge sheet at the Magistrate Court and that the evidence of the IPO that the appellant was a suspect when his name was not in the charge sheet at the magistrate Court should not be believed. Counsel seem to conveniently forget that the Magistrate Court cannot try a murder charge but merely had power to hold the accused person before he was brought before a Court of competent jurisdiction.
Suffice it to say that neither the appellant nor the Appellant’s counsel can claim to be privy to the full course of Police investigation and the opinion rendered by the Director of Public Prosecutions in this matter. It is the exclusive jurisdiction of the Hon. Attorney General of a State to prosecute an accused through the office of Director of Public Prosecutions. I also agree with the opinion of the learned trial judge at Pg 165 of the Record that it is not a condition precedent that an accused must be charged before the Magistrate Court on a holding charge before he can be charged on information before the High Court.
Because of the way the issue was couched by the appellant, the respondents counsel also argued the trite point of law that the 1999 Constitution clothes the High Court with jurisdiction to hear murder charges to which l quite agree. This issue has to be resolved against the appellant.
ISSUE TWO
On this issue, the learned appellant’s counsel argued that the prosecution failed to prove the offence of murder beyond reasonable doubt against the Appellant as required by Law. Counsel argued that it is requisite to establish the following ingredients of murder:
a) That the deceased died
b) That it was the unlawful act or omission of the appellant which caused the death of the deceased.
c) That the act or omission of the Appellant which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.
Counsel argued that the body of the deceased was neither found nor was there any evidence of him alive or dead which leaves a vacuum in the case of the prosecution. Appellants counsel argued that even though the seven years presumption of death may not fully expire if there is sufficient evidence to prove the guilt of the accused, however, where the prosecution does not have such evidence at its disposal, the seven years must expire. Counsel argued that in the light of the above, the murder charge was in contravention of Section 164 (1) of the Evidence Act 2011. Counsel cited: State v. Okechukwu (1994) 9 NWLR pt. 368 pg. 273. Olude v. State (2014) 7 NWLR pt. 1405 pg. 93, Attah v. The State (1993) 4 NWLR pt. 1405.
Appellant’s counsel submitted that the retracted confession of the appellant labelled Exhibit P.8 was not recorded in the presence of his counsel. He cited: Harrison Owhoruke V. C.O.P (2015) 15 NWLR (Pt.1483) 565. He consequently urged this Court to discountenance Exhibit P.8 and hold that the prosecution was not able to prove its case beyond reasonable doubt and to resolve this issue in favour of the Appellant. Counsel argued that the Supreme Court in Harrison Owhoruke v. C.O.P. SUPRA, emphasised the need for safeguards to be put in place to guarantee transparency in police investigation of crimes and for the Courts to enforce these safeguards, Counsel argued that the reliance on Exhibit P8 is as wrong as the making of it by the Appellant in the absence of his counsel was wrong. Counsel insisted that apart from suspicion, which the lower Court relied on there was no proof beyond reasonable doubt that the Appellant committed the offence as charged. He urged the Court to discharge and acquit the appellant he cited: Ahmed vs State (2001) 18 NWLR (PT. 746) 622; Dung vs State (2015) 9 NWLR (PT. 1465) 505; Hamza Al-Mustapha vs State (2013)17 NWLR (Pt. 1383) 366; FRN vs Amah (2017) 3 NWLR (Pt. 1551) 147.
Learned respondent’s Counsel argued that the evidence of P.W. 2 who was an eye witness to the death of her husband and the other occasions when the appellant in company of others had threatened the deaceased was conclusive of the fact that the appellant was one of the last people to be seen with the deceased. Exhibit P. 8 which is the confessional statement of the appellant had stated that the appellant and others were part of the people who beat up and took the deceased away to where he was subsequently killed.
Counsel submitted that the Appellant and other co-accused persons were the last to be seen with the deceased and thus the trial judge was right to hold that they would be held accountable for his death upon their failure to give an explanation of his whereabouts or an account of events which culminated in his death. Counsel further argued that the learned trial Court was at one with the law and absolutely correct when he held that the prosecution established all the essential ingredients of murder against the Appellant. The respondent’s counsel submitted that the prosecution proved that it was the actions of the Appellant and other co accused at trial that resulted in the death of the deceased. Counsel cited Odu v. State (2000) 7 NWLR (Pt. 664) 283; Nwodo V. State (1991) 4 NWLR Pt. 185, 341 Pt. 352.
OPINION
In every case of murder, there are three essential ingredients to be proved by the prosecution as follows:
a) That the deceased died
b) That it was the unlawful act or omission of the appellant which caused the death of the deceased.
c) That the act or omission of the Appellant which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence. See Itu V. State (2016) 5 NWLR Pt. 1506, Pg.465 para B-F; Madu V. The State (2012) 15 NWLR Pt. 1324 Pg. 405.
The three modes of proving the ingredients of the offence are:
a) By direct evidence of eyewitness
b) By confession, and
c) By circumstantial evidence.
The Appellant’s counsel had argued that it was premature of the prosecution to raise the presumption of the death of Moses Akpa Nwafor and that the charge laid before seven years was incompetent.
Section 164 of the Evidence Act provides as follows:
164. (1) A person shown not to have been heard of for 7 years by those, if any, who if he had been alive would naturally have heard of him, is presumed to be dead unless the circumstances of the case are such as to account for his not being heard of without assuring his death; but there is no presumption as to the time when he died, and the burden of proving his death at any particular time is upon the person who asserts it.
(2) For the purpose of determining title to property where two or more persons have died in circumstances in which it is uncertain which survived the other they are presumed to have died in order of seniority.
(3) There is no presumption as to the age at which a person died who is shown to have been alive at a given time.
I have to minutely consider the evidence led at trial to find out if the prosecution proved that the deceased died or should be presumed dead.
Let me first highlight why the learned trial judge decided that Moses Akpa Nwafor had died. At Pg. 152 of the record the Court observed:
“The PW3 and PW4 were the police investigators in this case. They were not direct eye witnesses to any event in this case, but they gave evidence about their findings in the investigation. And one of the findings of the PW3 and PW4, was that they gathered from the confession made by the 4th accused to the police, that this Moses Akpa Nwafor was attacked by the accused persons and others who thereafter handed him over to the Benue People on the directive of Chief Obaji Ogwale of Effium town and since then, nobody has seen the said Moses Nwafor.”
The Court then concluded at pg.154 as follows:
“It is true there is no strong direct eye-witness of the killing of Moses Akpa Nwafor in this case, but the various pieces of circumstantial evidence of the prosecution witnesses particularly, the PW2 as highlighted above which evidence was equally corroborated by the confession Exhibit P8, the Court is on a very firm ground to infer that Moses Akpa Nwafor had died.”
The Court then concluded finally on this issue as follows:
“This Court has even closely examined the circumstances of this case even with a tooth comb and has guarded against the possibility of any fabrication, to cast suspicion on another, but the Court is firm and certain, that these number of circumstances as well as the confession accepted in this case have made a complete and unbroken chain of evidence that Moses Akpa Nwafor had died in this case. And this findings settles the proof of the first essential element of murder.”
Before arriving at the above conclusions, the learned trial judge rightly rejected the evidence on oath of PW1 which was inconsistent with the earlier statement given by the witness as the Court is not allowed to pick and choose which evidence to believe. The learned trial Court held as follows on Page 151-152 the record:
“In the first place, the evidence of the PW1 that he was an eye witness to the alleged attack of Moses Akpa Nwafor was rendered inconsistent with the portion of his Exhibit P.3 where, he stated that it was Fredrick Nwokpoku that reported to him about the alleged attack and this Fredrick Nwokpoku was an eye-witness to the attack.
And the law is that, where the oral evidence of a witness on oath is inconsistent with his extra-judicial statement to the police or his previous statement in writing, the Court will disregard the oral evidence and it will not act on the said statement. See Onubogu Vs State (1974) NSCC 358.
In the instant case, the evidence of the PW1 that he witnessed the attack of Moses Akpa Nwafor will be disregarded by this Court because it is inconsistent with the extra-judicial statement of the same PW1-Exhibit P3 as stated hitherto.”
I have no reason to disagree with above reasoning.
In respect of the evidence of PW2, the wife of the deceased, in Exhibit P4, she had stated that her husband went to Effium market square in the morning of 22/08/08 and she had not seen him since then. In other statements she said she was looking for her husband after the Appellant and other accused person came to threaten him in their home but that she was asked to go back home when she volunteered to take them to where he was. On oath, she gave evidence in great and specific details of the attack on her husband and that she was also present near the beer parlour at the market early in the morning when the attack on the deceased took place. The Learned trial judge in my humble view rightly disbelieved her evidence of what happened at the scene of the crime in totality when he held on Pg 152 of the Record as follows:
“On the evidence of the PW2, it is obvious that she did not witness the alleged attack of her husband, because she was confronted with her statement, Exhibit P4 where, she said her husband went to the Effium Market Square in the morning of 22/08/08, and he did not return home. This is a contradiction of the evidence by the PW2 that she witnessed the alleged attack on her husband.”
The learned trial judge refused to place any weight on the evidence of PW1 and PW2 that they were eyewitnesses during the attack on Moses Akpa Nwafor because their evidence on oath was inconsistent with their previous statement to the police.
As stated earlier, the Court cannot pick and choose which evidence to believe and is bound to reject them both. See Kayili V. Yilbuk & Ors (2015) LPELR -24323(SC).
I have also considered the evidence of PW1 and PW2 and their cross examination in relation to material facts in issue in this appeal. While PW2 mentioned specifically the name of Chinwe Ezedike and one man called Ozoemenam as one of those who came to threaten her to keep quiet after her husband was killed, she did not mention the Appellant. This is very vital, because while the learned trial judge disbelieved that portion of the evidence of PW2 that she witnessed her husband?s murder, he believed the evidence that the appellant was one of those who had before the killing of her husband come to their home to threaten him and to invite him to the palace of Obaji Ogwale. Clearly the learned trial judge based his finding to convict the appellant on his belief on that fact.
The Court cannot pick and choose which portion of the evidence of prosecution witness to believe. It is either the witness is a truthful witness or an outright liar whose total evidence must be evaluated as credible or incredible as the case may be. See: Kayili V. Yilbuk & Ors (2015) LPELR -24323(SC).
It is only an accused who has the luxury of stating several versions of a story and the Court is bound to consider all the versions before arriving at a conclusion as regards his credibility on each fact to make a finding in that regard. See: Ayeni v. The People of Lagos State (2016) LPELR-41440(CA); Osokoya v. Onigemo (2017) LPELR-42730(CA); Ezemba v. Ibeneme (2009) 14 NWLR (Pt. 798) 623; Ajide v. Kelani (1985) 3 NWLR (Pt.12) 245.
At Pg. 152 of the record, the Court held as follows:
“There is also a material evidence that ran through the strands of the evidence of all the prosecution witnesses, that the accused persons and others has gone to the house of the PW2 on 21/8/08 in the night before the alleged murder in this case, and demanded violently to see this Moses Akpa Nwafor.”
I cannot fathom why, PW2 gave so many versions of that visit to her home. At one point she said those who came to threaten her husband were up to 50 men. See Line 10 Pg.87 of the Record. The learned trial judge relied heavily on hearsay evidence of PW2 in relation to what the deceased discussed with Chief Obaji Ogwale whose boys had threatened to kill him and also in relation to the briefing of Barrister Felix Ngbada to facilitate the writing of a petition to the police. The learned trial judge asked himself the following question on Pg.156 of the record as follows:
‘Therefore, the vexed issue is, why were the accused persons violently looking for the deceased few hours before the deceased was killed? Why was the deceased complaining seriously against the threat of his life few hours before the death of the deceased? And finally, after the visit of the accused persons to the house of the deceased and the report of the deceased against the accused persons, were the accused person in contact with the deceased before the death of the deceased’.
The Court also stated as follows on Pg. 156-157 of the Record:
“It is not in doubt that all the accused persons had denied and answered the above three questions in the negative, they did not accept that they visited the house of the deceased, but this Court accepted it because it was proved beyond reasonable doubt. He denied that the deceased complained about the threat of his life against them and the steps he took to cause a petition to be written to the police for him, this Court also accepted it because it was proved.”
The learned trial Court engaged in several speculations as contained in the last paragraph of pg 160 of the records. Much of the findings of the Court were based on hearsay evidence from PW1 and PW2. In one breath the trial Court would concede as in page 156 that the Appellant flatly denied going to the house of the deceased to threaten him, in another breath, the Court was of the opinion that the Appellant did not rebut the evidence of participation in the threats made against the deceased by cross examination of PW2 to that effect. That is factually untrue since the record shows that PW2 was subjected to Cross Examination in that regard by counsel to all the accused person at trial
It is pertinent at this point to put down the contents of Exhibit P8 which is set down below:
“I of the above name and address voluntarily wish to state as follows- I am a native of Ezza Effium. I am a radio mechanic by occupation- I attended Effium High School and drop at Junior Secondary School Jss2 in the year 2003. I know Chief Obaji Ogwale as the Chief of Effium. And the chief of all Chiefs in Effium. I am an Ezza youth member. I know one Ikechukwu Nwafor as the personal assistant to Chief Obaji Ogwali he always sent him out for messages. Also I know one Amaechi Nworu as one of the Ezza youth association. I equally know Ozoemena Ogadinma as one of the Ezza youth Members. I am from the same community from Ezza Effium with the people mentioned above. I know one Hon. Peter Eze, I don?t have any problem with him, and his brother is marrying my sister. I know one Moses Akpa Nwofor as the former chairman of okada union Effium. Sometimes in august 2008 Mr. Moses Akpa Nwafor went to Chief Obaji Ogwali?s house and reported me that I came to his house with an axe, Chief Obaji Ogwali asked whether he was at home when I came with an axe, he said no and stated that one woman was present when I came with the axe, then Obaji Ogwali asked him to produce the woman to his palace/house so that she will take oath with a kolanut but Moses Akpa Nwafor refused to produce the woman as directed by Chief Obaji Ogwali. Then Chief Obaji Ogwali sent his personal assistant P.A Ikechukwu Nwafor to go to Mr. Moses Akpa Nwafor and called him but he did not see Akpa Nwafor. Then later in evening P.A saw him and deliver the message of chief Ogwali Obaji to him and he promised to come the next morning and he failed. Then Moses Akpa Nwafor went to the Nigeria Police Effium and reported me, Ikechukwu Nwafor, Amaechi Nworu, Michael Obsai and Ozoemena Ogadinma but Chief Obaji Ogwali said none of us should go out again so that the police will not arrest anybody until when he see Moses AKpa Nwafor.
Then Chief Obaji Ogwali said I Chinedu Ekuma, Ikechukwu Nwafor, Amaechi Nworu, Michael Obasi Ozoemena Ogadinma and many others should go to Moses Akpa Nwafor’s house and called him. As we went we did not see Moses Akpa Nwafor but we saw his wife and deliver a message to her that if Moses AKpa comes back he should come to Obaji Ogwali’s Palace so that my problem with him will be settle, on our way back from Moses Akpa’s house we met him on the way in a breach nearer to his house and we asked him why he ignored Chief Obaji Ogwali’s invitation, he still promised to come later in the day .
So we continue waiting but he refused to come as promised. Then the next day still in august 2008, people came from Benue State and reported Moses Akpa Nwafor to Chief Obaji Ogwali that he has a problem with them, that Moses Akpa Nwafor always come to them and collect money that he will settle their cases, then Chief Obaji Ogwali told the Benue People that if they see Moses AKpa Nwafor they should carry him to Benue and settle the case over there. Then chief Obaji Ogwali said we should go and look for Moses Nwafor AKpa, I went with Ikechukwu Nwafor, Chibuzor Igwe, Smart, Ameachi Nworu, Michael Obasi, Ozoemena Ogadinma, Igadanwa, Oketa Ogaechia and many others in one Fred Nwakpoku beer parlour and the Benue people accompany us I can identified the people from Benue but Chief Obaji Ogwali knows the people from Benue very well. While at Mr. Fred Nwakpoku?s beer parlour we saw Moses Akpa Nwafor then Ozoemena Ogadinma started besting along side, Chibuzor Igwe, Smart, Amaechi, Nworu , Chidi Omela and dragged him outside the beer parlour and handed him over to the Benue people and Benue people carry him away to Benue State.
I don’t know whether Chief Obaji Ogwali arrange with the Benue people to kill Mr. Moses Akpa Nwafor I only respected his directives by handing over Moses Nwafor Akpa to the Benue people. Since that August 2008, Moses Akpa Nwafor have never come back to the village again.
I don’t know whether is dead or not. I am not a member of bakassi boys, we don’t have anything like Bakasi. I am only a member of Ezza Youth. Nobody gave Mr. Moses Akpa Nwafor a matchet cut; we only arrested him and hand him over to the Benue people as directed by Chief Obaji Ogwali.
For a confessional statement to be admissible against an accused person, it must be a free, positive, true, unequivocal, direct and positive confession of guilt. See: Oseni v. The State (2012) LPELR-7833 (SC).
In this case, the appellant did not confess that he had killed Moses Akpa Nwafor. He however confessed that since Moses Akpa Nwafor was handed over to the Benue People he had not been seen by the people in the village. He insisted that nobody gave the said ‘victim’ a machete cut. The police did not arrest or prosecute Chief Obaji Ogwali who knew the Benue people to whom Moses Akpa Nwafor was handed over.
I do not think I can in the circumstances of this case glibly hold that the prosecution is entitled to the presumption that the said Moses Akpa Nwafor had died as at 6/11/09 when the appellant was arrested and charged.
The prosecution witnesses-particularly PW2 gave evidence between 11/06/2010 to 25/03/2013. As at the time the Charge was laid, there was no eye-witness to the murder of Moses Akpa Nwafor. The time to presume him dead had not started to run in accordance with S.164 of the Evidence Act 2011 when the Appellant and other accused persons were charged for his murder. In State v. Dr. Cosmas Ikechukwu Okechukwu (1994) LPELR-3224(SC) the Supreme Court held on the facts in that case as follows:
“There was at the time of the selection no convincing evidence that the incumbent Oluoha was actually dead nor the evidence to support the legal presumption under Section 143 Subsection (1) of the Evidence Act (now Section 144(3) of Cap. 112 of the Laws of Nigeria. 1990) which provides:- 143(1) A person shown not to have been heard of for seven years by those, if any, who, if he had been alive, would naturally have heard of him, is presumed to be dead unless the circumstances of the case are such as to account for his not being heard of without assuming his death; but there is no presumption as to the time when he died, and the burden of proving his death at any particular time is upon the person who asserts it.” The disappearance of the incumbent Oluoha came to the notice of the kingmakers in September, 1982 and the respondent was installed by the kingmakers at Oluoha in December. 1986. Thus the duration of the period, when the Oluohai became missing, was not up to 5 years at the time material to this case. Consequently, the presumption was not available to the respondent.” Per UWAIS, J.S.C (P. 36, paras. B-G).
The police prosecution witnesses talked about blood being found at the beer parlour to show that Moses Akpa Nwafor was wounded before being taken away. It is the shame of our criminal jurisprudence that the Police are most of the time unable or unwilling to bring forward eyewitnesses to a crime. If a credible eyewitness had come to give evidence that Moses Akpa Nwafor had been seriously wounded, before he was taken away, that would have lent credence to the presumption of his death by the hands of those who grievously wounded him. As it is now, we are not allowed to speculate on the facts of whether he was wounded or not.
I will set out in extensio the provision of the Administration of Criminal Justice Act 2015 which relate to compellability of witnesses and the state’s obligation to pay for their transportation.
These provisions were in the previous Criminal Procedure Act and Criminal Procedure Code, but are rarely used by counsel. They are set down below:
241. (1) The Court may, on an application of the prosecution or the defence, issue a summon or a writ of subpoena on a witness requiring him to attend Court to give evidence in respect of the case, and to bring with him any specified documents or things and any other documents or thing relating to them which may be in his possession or power or under his control.
(2) Where the prosecutor is not a public officer the person to whom the summons is addressed is not bound to attend unless his traveling expenses are paid to him.
242. (1) A Court with criminal jurisdiction shall have a process server specifically assigned to it.
(2) The process server has the responsibility to effect due efficient service of witness summons, defendant’s production orders, writs and all other processes issued in the Court in respect of all criminal matters.
(3) A summons shall be served on the person to whom it is directed in the same manner as is set out in Section 122 or 123 of this Act or, with leave of the Court, Section 124 and Sections 126 to 130 of this Act shall apply to the summons.
(4) Service of processes may be effected by registered reputable courier companies, recognized and authorised by the Chief Judge in accordance with the provisions of this Act, and the registered courier companies may be assigned to a Court with criminal jurisdiction as a process server in accordance with Subsection (1) of this section.
(5) The Attorney-General of the Federation or a person so authorized or the police, may serve on a person whom the prosecutor wishes to call as witness, a witness summons or writ of subpoena.
(6) Proof of service of a process or document shall be endorsed by the process server effecting the service, and shall be filed in the Court’s file.
243. Where a witness summoned to give evidence does not:
(a) attend Court at the time and place indicated on the summons; and
(b) provide any reasonable excuse for his non-attendance, then after proof that the summons was duly served on him, or that the person to be served willfully avoids service, the Court may issue a warrant to arrest and bring him before the Court.
244. Where the Court is satisfied in the first instance, by proof on oath, that a person likely to give material evidence, either for the prosecution or for the defence, will not attend to give evidence without being compelled to do so, then, instead of issuing a summons, it may issue a warrant for the arrest of the person.
245. (1) A witness arrested under a warrant shall, if practicable and where the hearing of the case for which his evidence is required is fixed for a time which is more than twenty-four hours after the arrest, be taken before a Magistrate, and the Magistrate:
(a) may, on the witness furnishing security by recognizance to the satisfaction of the Magistrate for his appearance at the hearing, order him to be released from custody; or
(b) shall, on the witness failing to furnish the security, order him to be detained for production at the hearing.
(2) The provisions of this Act relating to bail, summons and warrants in respect of the defendant shall apply to witnesses.
(3) A witness arrested or detained under this section shall not be kept in the same room or place as the defendant, if the defendant is in custody and the defendant shall not be allowed to make any contact with the witness.
246. (1) A witness who:
(a) refuses or neglects, without reasonable cause to attend Court in compliance with the requirements of a summons duly served in the manner prescribed by law; or
(b) departs from the premises of the Court without the leave of the Judge or Magistrate hearing the case, is liable, on summary conviction, to a fine not exceeding ten thousand naira or to imprisonment for a term not exceeding two months.
(2) A complaint shall not be made for an offence under this section except by the order of the Court made during the hearing of the case for which the evidence of the witness is required.
247. A witness who is present when the hearing or further hearing of a case is adjourned, or who has been duly notified of the time and place to which the hearing or further hearing is so adjourned, shall attend any subsequent hearing and if he defaults, he may be dealt with in the same manner as if he had refused or neglected to attend the Court in obedience to a witness summons.
248. A person present in Court and compellable as a witness, whether a party or not, in a cause, may be compelled by a Court to give evidence, and produce any document in his possession, or in his power, in the same manner and subject to the same rules as if he had been summoned to attend and give evidence, or to produce the document and may be punished in like manner for any refusal to obey the order of the Court.
249. A witness shall take an oath or make a solemn affirmation in such a manner as the Court considers binding on his conscience.
250. (1) When a person attending Court and who is required to give evidence, without any sufficient excuse or reason:
(a) refuses to be sworn or to affirm as a witness;
(b) having been sworn or having taken affirmation refuses to answer any question put to him;
(c) refuses or neglects to produce any document or anything which he is required by the Court to produce, the Court may adjourn the hearing of the case and may in the meantime by warrant, commit the person to prison or other place of safe custody for a period not exceeding thirty days.
(2) Nothing in this section shall:
(a) affect the liability of the person to any other punishment for refusing or neglecting to do what is so required of him; or
(b) prevent the Court from disposing of the case in the meantime according to any other sufficient evidence taken by it.
The provision for the payment of witnesses as contained in the Administration of Criminal Justice Act 2015 are set out below:
251. Where a person attends Court as a state witness, the witness shall been entitled to payment of such reasonable expenses as may be prescribed.
252. Where a person attends Court as a witness to give evidence for the defence, the Court may in its discretion on application order payment by the Registrar to such witness of Court such sums of money, as it may deem reasonable and sufficient to compensate the witness for the expenses he reasonably incurred in attending the Court.
253. The Court may permit, on application of a party for an adjournment of the proceedings, and in so doing, may order the party seeking the adjournment to pay to a witness present in Court and whose evidence it has not been possible to take owing to the adjournment such sum in the amount payable to a witness in accordance with Section 251 and 252 of this Act, or such sum as the Court may fix.
254. The amount of the expenses payable to a witness pursuant to Sections 251 and 252 of this Act shall be processed and paid by the Registrar of the Court to the witness out of the relevant vote as appropriated by the Judiciary.
After all the above have been done and the witness changes his story that witness can be treated as a hostile witness.
It is conceded that the police can prosecute and the Court can convict for murder even where there is lack of corpus delicti- dead body. In Moses Jua v. The State (2010) LPELR-1637(SC)- (2010) 4 NWLR Pt. 1184 Pg. 217, the Supreme Court per Ogbuagu JSC held as follows:
“The law as regards the absence of corpus delicti is that a Court may still convict an accused person of murder even though the deceased’s body, cannot be found, provided that there is sufficient compelling circumstantial evidence to lead to the inference that the man had been killed. See the cases of R. v. Sala (1938) 4 WACA 14; R. v. Onufrejeigyk (1955) 9 CAR 1; Adelakun Ayinde v. The State (1972) 4 S.C. 147 @ 152; Edim v. the State (1972) 4 S.C. 160 @ 162. In other words, the fact of death, is provable by circumstantial evidence notwithstanding that neither the body nor any trace thereof, had been found and that the accused person, has made no confession of any participation in the crime. However, before the prisoner can be convicted, the fact of death should be proved by such circumstances as to render the commission of the crime certain and leave no ground for reasonable doubt. The circumstantial evidence therefore, should be so cogent and compelling as to convince a Court or jury that on no rational hypothesis other than murder can the facts be accounted for. See Onufrejezyuk (supra); The State v. Nwakerendu (1973) 3 ECSLR (Pt.2) 75 (supra)”
In Jua v The State supra, the appellant had confessed orally to killing the deceased immediately he was arrested, he took the police to where the police uniform of the deceased was recovered and there was uncontroverted evidence that he was the one last seen with the deceased. See also Onu JSC where in Babuga v. The state (1996) LPELR-701(SC) and Obidike v,The State (2014) LPELR-22590(SC), His Lordship held :
“As a matter of fact, conviction can properly be secured in the absence of a corpus delicti where there is strong, direct evidence. See: Rex v. Sala Sati (1938) 4 WACA 10; Commissioner of Police v. Robert Ogbame Cofie (1941) 7 WACA 179 and Edim v. The State (1972) 4 SC 160 at 162 where, the Supreme Court following Ogundipe & Ors. v. The Queen (1954) 14 WACA 458 held:- “It is true that the body of the deceased has not been recovered. But it is settled that where there is positive evidence that the victim had died, failure to recover his body need not frustrate conviction.? PER ONU, JSC. (Pp.24-25, Paras.G-B) ”
See also; Abokokuyanro v. The State (2016) 9 NWLR Pt. 1519 Pg. 520; Ubani V. The State (2003) 18 NWLR Pt.851 Pg. 224.
I have read all the facts of the cases where the Last Seen Theory coupled with the direct and unequivocal confessional statement of the accused was used to convict for murder even in the absence of a dead body. I cannot see most parallels with the facts of this case. There is no direct eyewitness testimony that Moses Akpa Nwafor was last seen with the Appellant. There were too many lacuna in the case made out by the prosecution for me to agree that even though the 7 year period when death can be presumed had not yet been reached, before he was charged, there was enough admissible evidence leading positively to the conclusion first that Moses Akpa Nwafor had died and secondly that the Appellant killed him.
It is to be noted that when S.164 of the Evidence Act which the prosecution activated before its due date without-in my humble view- cogent evidence. It was to be a fact finder which permits in law, the prosecution and the Court to formally infer from proved facts, the existence of another unproved fact.
Presumptions operate only in the absence of evidence. If sufficient evidence is available, or if special circumstances alter the general facts of situations they govern, presumptions do not apply. In this case, the presumption is that Moses AKpa Nwafor had died.
It is where his dead body or somebody who was present at his death was not available, unable or unwilling to give evidence to that effect that the presumption of death after 7 years can be activated. That presumption is a presumption of fact that should in no circumstances be short circuited as has been done by the prosecution in this case.
I resolve the point of whether one Moses Victor Akpa Nwafor should have been presumed dead at the time the prosecution of the Appellant was commenced against the respondent.
Learned Appellant’s counsel tried to make the Court jettison Exhibit P8 on the ground that it violates S.17 (2) of the Administration of Criminal Justice Act 2015. I am sure that counsel must know that the law is a substantive law and cannot be implemented retroactively. The Statement of the Appellant was taken on 23/12/98 well before the promulgation or coming into effect of the Administration of Criminal Justice Act. I resolve this point against the Appellant.
I have also considered the merit of the case of the prosecution against the Appellant. Even if the said Moses Akpa Nwafor were presumed dead, there are material inconsistencies in the evidence of the prosecution. Not only was the “confessional statement” Exhibit P4 relied on by the Learned trial judge not an unequivocal admission of guilt, it raised the possibility of other persons being responsible for the death of the said Moses Akpa Nwafor which the Police refused to investigate.
The Last Seen Theory even on the basis of Exhibit P8 cannot be activated against the Appellant since the Police did not bother to investigate from Chief Obaji Ogwgali whether or not he gave orders to the Appellant to hand Moses AKpa Nwafor to the Benue people and if so who were they? If there was evidence from Chief Obaji Ogwali that he did not give such orders and that the issue of “Benue people” was a figment of the imagination of the Appellant, then I would have been prepared to hold that he was one of the persons Last seen with Moses Akpa Nwafor and thus obliged to account for his whereabouts.
In view of the resolutions above, I cannot affirm the finding of the trial Court.
In the circumstances, the judgment of Hon. Justice B.A.N in suit No HKW/5c/2009 delivered on 24/06/16 is hereby set aside.
The finding of guilt and sentence of death are hereby set aside.
The Appellant is discharged and acquitted. Appeal Allowed.
JOSEPH TINE TUR, J.C.A.: I had the privilege of reading an advance copy of the decision of my Lord, Helen Moronkeji Ogunwumiju, JCA and for the reasons I shall give in due course I adopt the reasoning that the appellant is entitled to a discharge and an acquittal as the prosecution failed to prove the ingredients of the crime for which the learned trial Judge sentenced him to death by hanging beyond reasonable doubt.
I shall render my opinion in conformity with provisions of Section 294(2) of the Constitution of the Federal Republic of Nigeria 1999 as altered which provides as follows:
294(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice, who delivers a written opinion:
Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.
Determination of disputes or controversies by Justices of the Court of Appeal or the Supreme Court as the case may be are either an ‘opinion’ or a ‘decision’ as provided in Section 294(2) of the Constitution. Though the word ‘opinion’ is not defined, a ‘decision’ is defined in Section 318(1) of the Constitution of the Federal Republic of Nigeria 1999 as altered in the following manner:
318(1) In this Constitution, unless it is otherwise expressly provided or the con otherwise requires:-
‘Decision’ means, in the relation to a Court, any determination of that Court and includes judgment; decree, order, conviction, sentence or recommendation.
Besides, the right of appeal in Criminal or Civil Proceedings has to be against decisions of the Courts that determined the dispute or controversy under Section 294(1) of the Constitution. The provision provides as follows:
294(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof?.
Section 294(1) of the Constitution comes into play in ‘Every Court’ that is established under this Constitution, etc. The Court of Appeal exercises original jurisdiction under Section 239(1)-(2) of the Constitution as follows:
(1) Subject to the provisions of this Constitution, the Court of Appeal shall, to the exclusion of any other Court of law in Nigeria, have original jurisdiction to hear and determine any question as to whether:-
a. any person had been validly elected to the office of President or Vice-President under this Constitution, or
b. the term of office of the President or Vice President has ceased, or
c. the office of President or Vice President has become vacant.
(2) In the hearing and determination of an election petition under Paragraph (a) of Subsection (1) of this Section, the Court of Appeal shall be duly constituted if it consists of at least three Justice of the Court of Appeal?.
But the appellate jurisdiction of the Court of Appeal is under Sections 240 to 247 of the Constitution of the Federal Republic of Nigeria 1999 as altered to wit:
240. Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Federal High Court, the National Industrial Court, the High Court of the Federation Capital Territory Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory Abuja, Sharia Court of Appeal of State, Customary Court of Appeal of a State and from decisions of a Court Martial or other tribunals as may be prescribed by an Act of the National Assembly.
241(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:-
a. final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
b. where the ground of appeal involves questions of law alone, decision in any civil or criminal proceedings;
c. decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
d. decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be contravened in relation to any person;
e. decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
f. decisions made or given by the Federal High Court or a High Court:-
i) where the liberty of a person or the custody of an infant is concerned,
ii) where an injunction or the appointment of a receiver is granted or refused,
iii) in the case of a decision determine the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise,
iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, and
v) in such other cases as may be prescribed by any law in force in Nigeria.
(2) Nothing in this Section shall confer any right of appeal:-
a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action,
b) from an order absolute for the dissolution of nullity or marriage in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree nisi, and
c) without the leave of the Federal High Court or a High Court or of the Court of Appeal, from a decision of the Federal High Court or High Court made with the consent of the parties or as to costs only.
242(1) Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.
(2) The Court of Appeal may dispose of any application for leave to appeal from any decision of the Federal High Court or a High Court in respect of any civil or criminal proceedings in which an appeal has been brought to the Federal High Court or a High Court from any other Court after consideration of the record of the proceedings, if the Court of Appeal is of the opinion that the interests of justice do not require an oral hearing of the application.
243(1) Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be:
a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed;
b) exercised accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the power, practice and procedure of the Court of Appeal.
(2) An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of fundamental rights as contained in Chapter IV of this Constitution as it relates to matters upon which the National Industrial Court has jurisdiction.
(3) An appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly;
Provided that where an Act or Law prescribes that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal.
(4) Without prejudice to the provisions of Section 254C (5) of this Act, the decision of the Court of Appeal in respect of any appeal arising from any civil jurisdiction of the National Industrial Court shall be final.
244(1) An appeal shall lie from decisions of a Sharia Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Sharia Court of Appeal with respect to any question of Islamic personal law which the Sharia Court of Appeal is competent to decide.
(2) Any right of appeal to the Court of Appeal from the decisions of a Sharia Court of Appeal conferred by this Section shall be:-
a. exercisable at the instance of a party thereto or, with the leave of the Sharia Court of Appeal or the Court of Appeal, at the instance of any other person having an interest in the matter, and
b. exercised in accordance with an Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.
245(1) An appeal shall lie from decisions of a Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of Customary law and such other matters as may be prescribed by an Act of the National Assembly.
(2) Any right of appeal to the Court of Appeal from the decisions of a Customary Court of Appeal conferred by this Section shall be:-
a. exercisable at the instance of a party thereto or, with the leave of the Customary Court of Appeal or of the Court of Appeal, at the instance of any other person having an interest in the matter;
b. exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.
246(1) An appeal to the Court of Appeal shall lie as of right from:-
a. decisions of the Code of Conduct Tribunal established in the Fifth Schedule to this Constitution;
b. decisions of the National and State Houses of Assembly Election Tribunals; and
c. decisions of the Governorship Election Tribunals on any question as to whether:-
i. any person has been validly elected as a member of the National Assembly or of a House of Assembly of a State under this Constitution,
ii. any person has been validly elected to the office of a Governor or Deputy Governor, or
iii. the term of office of any person has ceased or the seat of any such person has become vacant.
(2) The National Assembly may confer jurisdiction upon the Court of Appeal to hear and determine appeals from any decision of any other Court of law or tribunal established by the National Assembly.
(3) The decisions of the Court of Appeal in respect of appeals arising from the National and State Houses of Assembly election petitions shall be final.
247(1) For the purpose of exercising any jurisdiction conferred upon it by this Constitution or any other law, the Court of Appeal shall be duly constituted if it consists of not less than three Justices of the Court of Appeal and in the case of appeals from:
a. a Sharia Court of Appeal, if it consists of not less than three Justices of the Court of Appeal learned in Islamic personal law; and
b. a Customary Court of Appeal, if it consists of not less than three Justices of the Court of Appeal learned in Customary law?.
The Court of Appeal hears evidence and relies on addresses from the parties or their learned counsel in order to determine the dispute or controversy when exercising original jurisdiction over persons and causes or matters expressly mentioned or provided in the Constitution. The Justice have to render an opinion or a decision in compliance with the provisions of Section 294(1) of the Constitution. But rarely does the Court of Appeal hear evidence and relies on addresses of counsel or the parties to determine a dispute or a controversy.
I have read the proceedings, the argument of learned counsel and the decisions cited in the briefs. I have considered the reasoning of my learned colleague on the bench, Ogunwumiji JCA. who presided and has rendered a decision to allow the appeal. I am in complete agreement with my Lord that there was no iota of credible evidence beyond reasonable doubt to warrant the conviction and sentence of the appellant to death by hanging. I shall draw inspiration from what Irikefe, JSC (as he was) said in Ibrahim Vs. Shagari (1983) 14 NSCC 431 at 435 lines 5-8 about the evidence the appellant had marshaled to upturn the election of Alhaji Shehu Shagari as the President of the Federal Republic of Nigeria that, ‘…the evidence was so palpably unreliable as to reduce the proceedings to a farce’.
InSabiya Vs. Tukur & Ors. (1983) 14 NSCC 559, Aniagolu JSC held at pages 39-44 that the case of the appellant was ‘…vaciue – a wodly mixed bag of incompro hens lye assertions…’ That is the position of the respondent in this appeal.
I shall refer to the provisions of Section 294(3) of the Constitution of the Federal Republic of Nigeria 1999 as altered which
provides as follows:
(3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.
I adopt the opinion of my learned colleague that this appeal should be allowed to enable the appellant breath and enjoy freedom and liberty as enshrined in the preamble to the Constitution of the Federal Republic of Nigeria 1999 as altered. The appellant is discharged and acquitted.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I was privileged to read in draft the judgment of my learned brother, HON. JUSTICE HELEN MORENKEJI OGUNWUMIJU, I agree with his reasoning and conclusion that this appeal has merit and should be allowed. I abide by the consequential orders made therein.
Appearances:
For Appellant(s)
For Respondent(s)
