RASHEED HARUNA v. THE STATE (2019)

RASHEED HARUNA v. THE STATE

(2019)LCN/13028(CA)

In The Court of Appeal of Nigeria

On Thursday, the 4th day of April, 2019

CA/B/390C/2017

RATIO

HOW TO RESOLVE DOUBTS IN A PROSECUTION’S CASE

The law is clear on how doubts in the prosecution?s case should be resolved. Such doubts are to be resolved in favour of the accused. See HAPPY KINGSLEY IDEMUDIA V THE STATE (2015) LPELR 24835 (SC); ALMU V THE STATE (2009) 4 SCNJ 159/160.PER TUNDE OYEBANJI AWOTOYE, J.C.A.

WHAT THE COURT SHOULD DO WITH MATERIAL CONTRADICTIONS IN THE PROSECUTION’S CASE

The contradictions have a disparaging effect on the prosecutions case. They should be resolved in favour of the accused. SeeONUBOGU V THE STATE (1974) 9 SC: KALU V THE STATE (1988) 4 NWLR (PT 90)503: ABOGEDE V THE STATE (1996) 5 NWLR (PT 48) p. 270. PER TUNDE OYEBANJI AWOTOYE, J.C.A.

JUSTICES

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria

Between

RASHEED HARUNA Appellant(s)

AND

THE STATE Respondent(s)

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal lodged by the 2nd accused at the lower Court in Suit No. W/97C/2015. THE STATE V EYISAN EDUKUGHO & ORS.

The accused persons had been arraigned before the lower Court on the following charge.
THE .DAY OF ?.2019
At the session Holden at Warri on the day of 2015, The Court is informed by the Attorney General of Delta State on behalf of the State that Eyisan Edukugho, Rasheed Haruna and Precious Otomewo are charged with the following offence:
STATEMENT OF OFFENCE: COURT I
Conspiracy to commit a felony to wit: murder punishable under Section 324 of the Criminal Code law Cap C.21 Vol.1 Laws of Delta State of Nigeria.
PARTICULARS OF OFFENCE
Eyisan Edukugho (m) Rasheed Haruna (m) and Precious Otomewo (m) and other at large on or about 2nd November 2014 at Warri, at Warri Judicial Division conspired to murder one

Nathaniel Gboneso (m).
STATEMENT OF OFFENCE: COURT II
Murder punishable under Section 319 of the Criminal Code Law Cap C.21 Vol.1 Laws of Delta State of Nigeria, 2006
PARTICULARS OF OFFENCE
Eyisan Edukugho (m) Rasheed Haruna (m) and Precious Otomewo (m) and other now at large on or about 2nd November 2014, at Ijaw Street, Warri in the Warri Judicial Division murdered one Nathaniel Gboneso (m).?

After the pleas of the respective accused persons were taken, the learned trial judge heard the parties and on 23/11/2016, the learned trial judge delivered judgment and found 1st and 2nd accused guilty of conspiracy to commit an unlawful act and assault occasioning harm. 2nd accused was accordingly sentenced to a term of 24 months imprisonment for the offence of conspiracy to commit an unlawful act and three years imprisonment for assault occasioning harm.

The judgment of the lower Court reads inter lia thus-
?In the light of the above findings, I hold that the ingredients of the offence of murder has not been proved. The facts on record point and proved that the accused persons including the initiator Ovigwe went to the

house/frontage of the deceased twice and in both instances assaulted the deceased. The eye witness evidence of P.W.1 is very persuasive. He did not mince words by saying he could not know who caused the injury that resulted in death but that all his assailants had dagger and knife. The ingredients in proof of assault occasioning harm has been made out. Consequently I found the 1st accused guilty of assault. The 2nd accused is also found of assault on the deceased.
Allocutus: 2nd Accused
Temper Justice with Mercy
Sentence:
On the conviction for conspiracy to commit an unlawful Act, each accused is sentenced to 24 months imprisonment.
On the offence of assault occasioning harm each accused is sentenced to three years imprisonment. I am not giving option of fine because this society has to be purged of vices by young and vibrant youths who engage in drinking and violent Attacks on themselves. I have however given to minimum of three years because of their age.
Further Order: Sentence of run concurrently.?

Dissatisfied with the above decision, the 2nd accused (now appellant) filed a Notice of Appeal containing

two Grounds of Appeal which read as follows:
Ground 1
The learned trial judge misdirected itself on the facts and thereby made a wrong decision when it found the Appellant guilty and sentenced him to the lesser offence of assault occasioning grievous harm of the deceased Nathaniel Gboneso.
PARTICULARS OF ERROR
I. Evidence of PW 1, the only eye witness of the incidence of 2/11/2014 is that Appellant and others, some of which are at large stabbed and cut with broken bottles, daggers and knives the deceased Nathaniel Gboneso who died from wounds inflicted on him
II. PW1?s evidence completely contradicted by evidence of the PW3 [the Police Doctor] and by Exhibit H, the Autopsy report, to the effect that the deceased, Nathaniel Gboneso had only one stab wound on his body.
III. The learned trial judge relying on the evidence of PW 1 and Exhibit A held that the Prosecution did not prove that the Appellant inflicted the single stab wound on the deceased, Nathaniel Gboneso.
IV. The learned trial judge?s findings tantamount to a repudiation of PW 1?s evidence.
V. The learned trial judge was wrong to

rely on the same evidence of the PW1 to convict Appellant for the lesser offence of assault occasioning grievous harm of the deceased, Nathaniel Gboneso.
Ground 2
The learned trial judge misdirected itself on the facts and thereby came to a wrong decision when relying on the evidence of the prosecution witness and the fact of the presence of Appellant at the scene of crime found the Appellant guilty and convicted him for conspiracy to murder.
PARTICULARS OF ERROR
I. Evidence of PW1 manifestly unreliable
II. PW 1?s evidence contradicted by Exhibit H (Autopsy report).
III. Evidence of PW1 ought not to have been relied upon at all
IV. Presence of Appellant at scene of crime explained
V. Alibi of Appellant not investigated at all by Prosecution.?

After transmission of record of appeal, parties filed and exchanged briefs of argument.
SUBMISSION OF COUNSEL
APPELLANT?S BRIEF OF ARGUMENT
Appellant Brief was filed on the 29/9/17 and settled by his counsel Sir Victor E. Akpoguma and one sole issue was formulated for determination.
Whether there exist any legal or credible

evidence upon which the lower Court relied to convict and sentence the Appellant for the offence of conspiracy and assault occasioning grievous harm of the deceased, Nathaniel Gboneso (male)?

Learned counsel submitted that the Respondent failed woefully to prove its case against the Appellant beyond reasonable doubt as required by law. See Section 135(1) OF THE EVIDENCE ACT, 2011.

Learned Counsel referred the Court to the case of ORJI V STATE (2008) ALL FWLR (PT 422) PG 1093 @ PG 1107 ? 1108 Para H-A that the Respondent failed to prove all the ingredients of the offences of conspiracy and murder beyond reasonable doubt.

Learned counsel argued that the evidence of PW1 relied on by the trial judge to convict was violently self-contradictory and also contradicted by the evidence of the PW3, the medical doctor who performed the autopsy on the deceased and that no reasonable tribunal or judge ought to have convicted on it.

Learned Counsel argued that the PW1 who had earlier testified that he was at the scene of the incident but while being cross-examined by the counsel to the 3rd Accused stated that he was called by his neigbour that his

brother has been stabbed. It was trite principle of law that hearsay evidence was not admissible in law so submitted by the Appellant, see IFEGWU V UBN PLC (2011) ALL FWLR (PT 602) PG 1676 @ PG 1702 Para A ? B.

Learned Counsel submitted that due to the contradiction in the evidence of PW1, the apex Court had held that such evidence become unreliable, see CHRISTOPHER ONUBOGU & ANOR VS THE STATE (1974) ALL NLR (REPRINT) PG 561 @ PG 570 3rd Para 571, 3rd Para and Ors.

Learned Counsel contended that from the question posed by the trial judge as to the presence of the appellant at the scene of crime; that his presence as already explained in his statement did not render him without more guilty of the crime. See the case of ORJI VS THE STATE (2008) ALL FWLR (PT 422) PG 1039 @ PG. 1113 Para C-D.

Learned Counsel argued that failure of the police to investigate the alibi have as raised by the appellant was fatal to the case of the respondent. See the DICTA OF UWAIGO JSC IN BALOGUN V AG OGUN (2002) 2 SC (PT 11) PG 89 @ PG 101-102.

Learned Counsel argued relying on EYO V THE STATE (2010) ALL FWLR (PT 533) 1913 @ 1933

PER OMOLARI JCA, that a trial Court is under an obligation and duty bound to consider all defences put up by an accused person, whether expressly or implied, trivial, fanciful, stupid or doubtful, failure to do so, miscarriage of justice is occasioned. See also EDOKO VS THE STATE (2015) ALL FWLR (PT 772) PG 1728 @ PG 1744 para D ? E and ORS.

Learned Counsel submitted that where a witness gave evidence which contradicted itself or a statement to the police or contradicted the evidence of other prosecution, the Court could not without the prosecution explaining the contradiction, pick and choose the version of evidence to believe. See AHMED V THE STATE (2001) FWLR (PT 34) PG 438 @ PG 459 Para H and ORS.

Learned Appellant?s Counsel submitted that PW1?s evidence was clearly too discredited to be relied upon to convict for murder. So also too was the evidence because of all material contradictions and inconsistence.

Learned counsel respectfully submitted that this Honourable Court resolved the sole issue in favour of the Appellant and set aside the judgment of the lower Court.

RESPONDENT?S BRIEF OF ARGUMENT
The Respondent Brief of Argument was prepared by Enenmo O.F. Director of Appeals Delta State Ministry of Justice and filed on the 7/02/19 and adopted the sole issue formulated by the Appellant.

Learned counsel submitted that having regard to the state of evidence before the Court, the lower Court was right in law when it convicted the Appellant for the offences of conspiracy to commit murder. It is trite law he submitted that a case against an accused must be proved beyond reasonable doubt and this the prosecution did in this case with the evidences adduced.

Learned counsel for Respondent argued that for a charge of conspiracy to commit murder, the prosecution was to establish fact beyond reasonable doubt viz and agreement of two by unlawful act or to do an unlawful act by unlawful means, see DR ODUNEYE V STATE (2001) 83 LILCN 1 @ 16 AND ORS.

Relying on the evidence of PW1, Learned counsel argued that the Appellant and his cohorts were at the scene of the incident and did carry out the unlawful act of conspiracy to commit murder; which was also corroborated by PW3.

?Learned counsel contended that from the

evidence at the trial Court, it was clear that the Appellant and Ovigwe were coming and going from the scene of the crime, showed common intention and were available at every given time to execute the common intention to cause harm.

Learned counsel relying on the opinion of IGUH JSC;IN BROADLINE ENTERPRISES LTD V MONETARY MARITIME CORPORATION & ANOR (1995) 9 NWLR (PT 417) 1, 27 submitted that the Appellant had the opportunity to discredit the evidence of PW during cross-examination which he failed to do.

Learned counsel relying on BOUWOR V STATE (2016) 4 NWLR 295 and ORS submitted that the findings of the learned trial judge was in line with the evidence on record and the Court to affirm the judgment of the trial Court.

On the offence of causing grievous bodily harm, he submitted it was clear from the uncontroverted evidence of the PW1 which was not challenged during cross-examination and pinned the Appellant to the scene of crime, whatever alibi the appellant raised in defence was neutralized. See NJOVENS V STATE, BALOGUN V A.G. OGUN STATE (SUPRA).

?Learned counsel submitted that the contradiction referred

to by the Appellant?s counsel did not exist. It was trite law that the finding of facts was at the province of the Court of trial which the Appellant did not challenge during cross-examination of PW1.

Learned counsel urged the Court to discountenance the submissions of the Appellant and affirm the judgment of the trial Court.

RESOLUTION
Appellants counsel donated the following issue:
Whether there exist any legal or credible evidence upon which the lower Court relied to convict and sentence the appellant for the offence of conspiracy and assault occasioning grievous harm of the deceased, Nathaniel Gboneso (male).

ENENMO for the defence distilled one sole issue to wit:
Whether having regard to the state of evidence before the trial Court, the lower Court was right in law when it convicted the appellant for conspiracy to murder and a lesser offence of assault occasioning grievous harm.

To my mind, the two issues are essentially the same. I shall however adopt the issue formulated by defence in determining this appeal.
I have deeply considered the submissions of learned counsel on both sides as well of the content of the record of appeal.

The learned trial judge in his judgment relied heavily on the evidence of PW.1 in convicting the appellant. For claritys sake I shall extract and reproduce the relevant part of his evidence.
On the 2/11/2014 a Sunday. At about 10.pm my late brother, myself and Monday Gboneso were sitting in our corridor close to our compound. Suddenly a boy called Ovigwe walked into our compound in company of a girl. The two of them stopped by my door and stood. Not less than 5 minutes thereafter the Ovigwe broke a bottle. I than stood up and approached him. When I got to them I told Ovigwe that if he wants to kill his girl friend he should go outside our compound and he challenged me and said who am I to challenge him. The man pulled me on my shirt. I hold him in return. We started arguing. He told me that he will ?stab me and I told him that he cannot do it. Thereat my two brother came to us and asked Ovigwe why he should talk to me like that. My brother called Piti Gbeneso who went out before (not at home) came and met us in the argument. Piti told me to leave Ovigwe because Ovigwe is an areaboy. In the process the bottle which

Ovigwe hold pierced my brother Piti?s hand. After the injury Piti begged Ovigwe to go so Ovigwe left the scene. 10 minutes later Ovigwe the three accused persons and some others rushed into our compound. We were still in the sitting position. Watamil was in the front of the compound. The accused persons and Ovigwe rushed to meet Nathaniel. When we saw them we also got up and went there to intervene. In the process the 2nd accused hit me on the nose and I bled and lost control. They stabbed my hand but I did not know who did. Piti also got a stab wound in his hand. Blessing who was with us got stabbed on her face. As I lost balance I saw Nathaniel running to enter the house. The boys pursued him, got hold of him and used dagger, bottle and knife on Nathaniel. I then heard a neighbor called Joshua shouting that Nathaniel is dying. I was struggling with my own injuries. Our neighbor and my elder brother rushed Nathaniel to General Hospital Warri. Monday and I followed them in another ?keke?. As we got there the keke was not allowed in. We then came down and continued on foot. As we got in we saw Nathaniel being carried to the

mortuary in a stretcher.

On the evidence of PW1 the learned trial judge who saw and heard him said
the eye witness evidence of PW1 is very persuasive.

In other words, his lordship believed and accepted his evidence. However, his lordship on page 199 of the record of appeal had this to say:
there were other eye witnesses to the episode. It is right to believe that the prosecution would have farred better if one or more of such people were fielded. I agree with the defence two counsel that the prosecution must go beyond showing that the 1 ? 2nd accused were present at the scene. Which gave the blow that caused death. The absence of that evidence watered down the case of murder, see Adedeji Vs State (1971)AMLR Page 75. Also that Ovigwe mentioned by the P.W.1 and the 1st 2nd accused could not be gotten created a wide gap which prosecution was unable to bridge.

My understanding of the above statement is that there are doubts ?wide gap which prosecution was unable to bridge in the case of the prosecution. My take is the assault occasioning harm, and conspiracy to commit murder and

murder itself form part of the same transaction in the case against the appellant, any doubt in the prosecution?s case on any of the three fronts affects and afflicts the entire case. In other words, if there are doubts in the prosecutions case concerning the assault occasioning harm the case of murder against the appellant is affected. They are intertwined in my respectful view.

From the case of the prosecution it is crystal clear that Ovigwe now at large was the violent among the boys.
The IPO under cross examination said that much. He said;
In all the statements made to me, the accused persons said that it was Ovigwe that stabbed the deceased. The deceased from my finding had a single stab wound by the upper right shoulder. He had bruises on the other parts of his body.

PW3, Dr. E.A. Ijomone in his evidence had this to say on this point;
There was a wound of 4 cm in length over the left clavicle (colur bone) it is 6 cm from the stenem. (chest). It is deep to left pleura cavity. My assessment of the cause of death is ?A stab injury to the left upper chest. I wrote the report. The police

collected it. This is my report.
IDI tendered. No objection. It is marked exhibit H.
Xxx 1st accused.
The deceased had just one injury on him.?

The above statements of these two vital witnesses for the prosecution agree with evidence of the appellant and conflict with that of PW1. It is not believable that the attack on the deceased by the boys with dagger bottle and knife could have resulted in one single injury on the deceased. Again, how could PW 1 who was struggling with his own injuries vividly see the attack on the deceased and yet had to be told that deceased was dying. He did not see that!

Ovigwe showed his blood thirstiness on 2/11/204 when he walked into the compound of PW1 and broke a bottle. PW1 further said the broken bottle held by Ovigwe injured his brother Piti?s hand. He said Piti told him Ovigwe was an area boy.

?The accused persons were unanimous

on the fact that Ovigwe stabbed the deceased. There are serious doubts on whether they acted in concert.

It has also been argued that there are material contradiction in the prosecution?s cases such as the one highlighted above. The contradictions have a disparaging effect on the prosecution?s case. They should be resolved in favour of the accused. SeeONUBOGU V THE STATE (1974) 9 SC: KALU V THE STATE (1988) 4 NWLR (PT 90)503: ABOGEDE V THE STATE (1996) 5 NWLR (PT 48) p. 270. I therefore resolve the doubts in favour of the appellant
I resolve this sole issue in favour of the Appellant. This appeal succeeds. It is hereby allowed.

I hereby set aside, the judgment and conviction Of the appellant in Suit No. W/97C/2015: RASHEED HARUNA V THE STATE, delivered on 23/11/2016. Instead I order that the appellant who was the 2nd accused at the lower Court is discharged and acquitted on each of the counts in the charge.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the privilege of a prior perusal of the draft copy of the lead judgment just delivered by my learned brother T.O. AWOTOYE, JCA.

The issue in contention has been adequately and exhaustively addressed and I agree with the reasoning and conclusion to the effect that the appeal has merit.
I also allow the Appeal and abide by the consequential order made in the lead judgment.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment just delivered my learned brother, TUNDE OYEBAMIJI AWOTOYE, JCA.
I agree that the appeal is meritorious and I also allow it.

Appearances:

Sir Victor E. Akpoguma with him, E.A. AkpogumaFor Appellant(s)

E.E. Erebe (Assistant Director Ministry of Justice Delta State)For Respondent(s)

Appearances

Sir Victor E. Akpoguma with him, E.A. AkpogumaFor Appellant

AND

E.E. Erebe (Assistant Director Ministry of Justice Delta State)For Respondent