ALEX AKPALLALA v. THE STATE
(2018)LCN/11996(CA)
In The Court of Appeal of Nigeria
On Thursday, the 19th day of July, 2018
CA/B/192CA/2014
RATIO
CRIMINAL LAW: INGREDIENTS FOR THE OFFENCE OF MURDER
“On the issue of murder, the ingredients of the offence of murder are:-
(a) That the death of the deceased occurred.
(b) That the death of the deceased was caused by the accused or accused persons on trial, and
(c) That it was the act or omission of the accused that caused the death of the deceased victim and such act or omission was intentional or with the knowledge that death or grievous bodily harm was the probable result or consequences.
The ingredients mentioned above must co-exist if any of them is missing then the offence of murder cannot be said to have been proved hence the prosecution cannot obtain conviction of murder against the accused person and the Court must exonerate him and acquit him of the offence of murder.” PER JIMI OLUKAYODE BADA, J.C.A.
DEFENCE: THE DEFENCE OF ALIBI
“The defence of Alibi is a fundamental defence open to any person standing trial for any crime. An accused person who raises the defence of Alibi is in effect denying participation or taking part in the commission of the offence on the ground that as at the time when the crime allegedly occurred, he was somewhere other than the scene of the crime and been involved in the commission of the crime with which he is charged. It is trite that once an accused at the earliest opportunity set up the defence of Alibi, it becomes the duty of the prosecution to investigate the Alibi and disprove it before the guilt of the accused person can be said to have been proved beyond reasonable doubt. The failure to investigate and check the reliability of the Alibi would raise reasonable doubt in the mind of the Court and lead to quashing of a conviction imposed in disregard of this requirement. However where the prosecution is able to show that the accused person was at the scene of crime when the offence was committed by an unquestionable evidence then, the defence of Alibi will not avail him. See:- EGWUMI VS STATE (2013) 13 NWLR Part 1372 Page 525.” PER JIMI OLUKAYODE BADA, J.C.A.
EVIDENCE: WAYS TO PROVE THC COMMISSION OF AN OFFENCE
“The guilt of an accused can be proved through any of the following methods:-
(a) Through confessional statement of the accused, or
(b) Through circumstantial evidence, or
(c) Through the testimony of an eyewitness or eyewitnesses.
See the following cases:-
– IGABELE VS STATE (2006) 6 NWLR Part 975 Page 100;
– OGBA VS STATE (Supra); – EMEKA VS STATE (Supra);
– NWOSU VS THE STATE (Supra).” PER JIMI OLUKAYODE BADA, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
ALEX AKPALLALA Appellant(s)
AND
THE STATE Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment):
This appeal emanated from the Judgment of Delta State High Court, Orerokpe delivered on the 18th day of December, 2013 in Charge No. HOR/3C/2012 – Between: THE STATE VS (1) JOHN JAFUWA (2) JOSIAH OMAYERUE (3) FESTUS EGITIE (4) DAVID IRIRI (5) ALEX AKPALLALA (APPELLANT) (6) ANDERSON EMMANUEL (7) EDIRI IRIRI (8) CHIEF KINGS IRIRI.
The Appellant was found guilty and convicted for the offence of conspiracy to commit murder and murder of one JONATHAN AKPOME and sentenced to five years imprisonment and death by hanging respectively.
Briefly, the facts of the case are that the Appellant who was the 5th accused at the lower Court was charged together with seven (7) other persons for the offence of conspiracy to commit murder and murder.
In proof of the case, the prosecution called witnesses and tender in evidence a total of twenty-one Exhibits. The 3rd, 5th, 7th and 8th accused persons each gave evidence and did not call any witness to testify on their behalf.
The 1st, 2nd, 4th and 6th accused persons did not enter their defence and did not call any witness in support of their case. They rested their case on the case of the prosecution. By consent, Counsel to the accused persons and prosecution filed and adopted their written addresses.
At the conclusion of hearing, in a Judgment delivered on 18/12/2013, the 1st, 2nd and 4th accused persons were discharged and acquitted while the 3rd, 5th, 6th, 7th and 8th accused persons were convicted and sentenced to five years imprisonment for conspiracy to commit murder and death by hanging for the offence of murder.
The Appellant, who is dissatisfied with the Judgment of the lower Court, appealed to this Court.
The Learned Counsel for the Appellant formulated two issues for the determination of this appeal. The issues are set out as follows:-
(1) Was the learned trial Judge right in law in disregarding and not upholding the defence of alibi when her Lordship herself held that:
(a) The alibi was timeously raised by the Appellant.
(b) The alibi was not investigated by the police. (Distilled from Ground 1 of the Amended Notice and Grounds of Appeal).
(2) Was the learned trial Judge right in convicting the Appellant of murder when the case was not proved beyond reasonable doubt? (Distilled from Grounds 3, 4, 5 and 6 of the Amended Notice and Grounds of Appeal).
On the other hand, the Learned Counsel for the Respondent also formulated two issues for the determination of the appeal. The issues are set out as follows:-
(1) Whether the learned trial Judge was right in law when she held that the Respondent proved the offence of conspiracy to commit murder and murder against the Appellant beyond reasonable doubt.
(2) Whether the learned trial Judge erred in law when she held that the defence of alibi did not avail the Appellant in this case.?
At the hearing of this appeal on 22/5/2018, the Learned Counsel for the Appellant stated that the appeal is against the Judgment of Delta State High Court delivered on 18/12/2013. The amended notice of appeal was filed on 8/12/2016 but was deemed as properly filed on 25/4/2017. The Appellant?s brief of argument was filed on 6/6/17 and the Appellant’s reply brief of argument was filed on 20/11/2017, it was deemed as properly filed on 2/5/2018.
The Learned Counsel for the Appellant adopted and relied on the Appellant’s brief of argument as well as the Appellant’s reply brief of argument as his argument in urging that the appeal be allowed and the Accused/Appellant set free.
The Learned Counsel for the Respondent, in his response, also referred to the Respondent’s brief of argument filed on 30/10/2017 but deemed as properly filed on 22/5/2018.
He adopted and relied on the said Respondent?s brief of argument in urging that the appeal be dismissed.
I have carefully perused the issues formulated for the determination of this appeal by Counsel for the parties. The issues are like half a dozen and six. I will therefore rely on the issues formulated for determination of the appeal on behalf of the Appellant.
ISSUES FOR THE DETERMINATION OF THE APPEAL.
ISSUE NO. 1
Was the learned trial Judge right in law in disregarding and not upholding the defence of alibi when her Lordship herself held that:
(a) The alibi was timeously raised by the Appellant.
(b) The alibi was not investigated by the police. (Distilled from Ground 1 of the Amended Notice and Grounds of Appeal).
The Learned Counsel for the Appellant submitted that an accused person who raises the defence of Alibi is in effect denying participation or taking part in the commission of the offence on the ground that as at when the crime allegedly occurred, he was somewhere other than the scene of crime.
He contended that the Appellant put up a defence of alibi in his statement to the police when he was arrested and that the Alibi was not investigated by the police. The said statement made by the Appellant was referred to.
The finding of the learned trial Judge that the Alibi was not properly raised by the Appellant was referred to, he then submitted that the learned trial Judge was wrong in his findings.
Learned Counsel for the Appellant relied on the following cases:-
– SHEHU VS THE STATE (2010) ALL FWLR Part 523 Page 1841;
– DOGO VS STATE (2001) FWLR Part 39 Page 1388;
– OYEBOLA VS THE STATE (2008) ALL FWLR Part 402 Page 1175 at 1184 Paragraphs E ? F.
On the assertion by the learned trial Judge that the Appellant was identified by some of the prosecution witnesses, the Learned Counsel for the Appellant submitted that a Judgment in a case of capital offence cannot safely be sustained on vague generalization of Some prosecution witnesses.
This according to counsel is because the trial Judge did not name the particular prosecution witness being referred to.
He finally submitted that the learned trial Judge was wrong in law for rejecting the Appellant’s defence of Alibi. He urged that the appeal be allowed.
In his response to the submission of Learned Counsel for the Appellant, the Learned Counsel for the Respondent submitted that when an accused raises the defence of Alibi, he is saying that he was not at the scene of crime when the offence was committed.
He relied on the following cases: –
– BALOGUN VS A.G. OGUN STATE (2001) 94 LRCN Page 277;
– NJOVENS VS STATE (1998) ALCR Page 264;
– UDO EBRE VS STATE (2001) FWLR Part 159 Page 1244;
– ESANGBEDO VS STATE (1989) 1 ACLR Page 109.
He referred to the statement of the Appellant Exhibit ‘C’ where he stated that he was at Isoko. He submitted that, this is vague. He relied on the case of: – NJOVENS VS STATE (Supra) and BALOGUN VS OGUN STATE (Supra).
The Respondent’s Counsel admitted that the Alibi of the Appellant was not investigated but that the Appellant was seen at the scene of crime by prosecution witnesses. He referred to evidence of PW2 on page 195 lines 20 – 29 of the record of appeal.
It was submitted on behalf of the Respondent that the learned trial Judge was right when she held that the defence of Alibi raised by the Appellant will not avail him. He also submitted that the onus of proof is on the Appellant to lead evidence in support of his Alibi. He relied on
– ESANGBEDO VS STATE (Supra);
– BALOGUN VS OGUN STATE (Supra);
– NJOVENS VS STATE (Supra).
On the contention that failure to conduct identification parade vitiates the case of the prosecution, the Respondent’s Counsel submitted that it is not in every case that identification parade must be held to determine the identity of the person who commits a crime. He went further that it would not be necessary to conduct an identification parade where there is circumstantial evidence showing the involvement of an accused person in the commission of the offence. He relied on the following cases:-
– IKEMSON VS STATE (1989) 3 NWLR Part 110 Page 455;
– EBENEHI VS THE STATE (2008) 10 NWLR Part 1096 Page 596 at Page 607 Paragraphs G – H;
– BALOGUN VS OGUN STATE (Supra).
Learned Counsel for the Respondent therefore urged that the appeal be dismissed and Judgment of the lower Court affirmed.
In the Appellant’s reply brief of argument, the Learned Counsel for the Appellant reiterated his earlier submission.
It was submitted further on behalf of the Appellant that the cases relied upon by Counsel for the Respondent are not applicable in this present case. He relied on the case of – ONUCHUKWU VS STATE (1998) 4 NWLR Part 547 Page 576 at 592 in support of the contention that the failure of the prosecution to investigate the Alibi and also failure of the trial Court to consider the defence of Alibi put up by the Appellant is crucial to this case and as a result, the Appellant is entitled to an acquittal.
It was also submitted that identification evidence of PW1, PW2 and PW3 which has been discredited by the trial Court in discharging and acquitting 1st, 2nd and 4th accused persons cannot be said to have proved beyond reasonable doubt, Appellants alleged participation in the offence.
The Learned Counsel for the Appellant finally urged that this appeal be allowed.
The defence of Alibi is a fundamental defence open to any person standing trial for any crime. An accused person who raises the defence of Alibi is in effect denying participation or taking part in the commission of the offence on the ground that as at the time when the crime allegedly occurred, he was somewhere other than the scene of the crime and been involved in the commission of the crime with which he is charged.
It is trite that once an accused at the earliest opportunity set up the defence of Alibi, it becomes the duty of the prosecution to investigate the Alibi and disprove it before the guilt of the accused person can be said to have been proved beyond reasonable doubt.
The failure to investigate and check the reliability of the Alibi would raise reasonable doubt in the mind of the Court and lead to quashing of a conviction imposed in disregard of this requirement. However where the prosecution is able to show that the accused person was at the scene of crime when the offence was committed by an unquestionable evidence then, the defence of Alibi will not avail him. See:- EGWUMI VS STATE (2013) 13 NWLR Part 1372 Page 525.
In this appeal, the 5th accused person who is now the Appellant put up a defence of Alibi in his statement to the police when he was arrested. The Alibi so raised by the Appellant was not investigated by the police and no explanation was given for the prosecution’s failure to investigate the Alibi.
The Appellant made statement to the police on 15/11/2011. It is Exhibit S’. It is reproduced as follows:-
I had my first school leaving certificate. I also attended Adeje Secondary School. I dropped out in SSII.
Presently, I am learning work with S.O. Olotu Company as an operator. I know late Jonathan Akpome in Okwudiemor Community. I was not in the community in the month of May 2011. We were in Isoko. I do go to work with S.O. Olotu and come back home once in a month. On the 17th day of May 2011, I was at my work place since I was learning work. I was not around when Late Jonathan Akpome was killed. (See page 74 of the Record of Appeal).
In my humble view, the Appellant who gave the details of his whereabout cannot be said to have failed to give account as to where he was and the person he was with.
Having stated his whereabout and the person he was with on the day the offence was allegedly committed, the Appellant had properly set up the defence of Alibi. Having done so, the prosecution is duty bound to investigate the Alibi set up by the Appellant carefully to disprove it. There was no explanation why the prosecution did not investigate the Alibi set up by the Appellant.
I am therefore of the view that the prosecution’s failure to investigate the Alibi amounts to failure to prove the case beyond reasonable doubt.
In SHEHU VS THE STATE (Supra), the Supreme Court held among others that:-
‘It is a cardinal principle of law that no claim of Alibi should be disregarded by the prosecution without a check’. See also the case of DOGO VS THE STATE (Supra).
In OYEBOLA VS THE STATE (Supra) Page 1184 Paragraphs E – F, it was held among others that:-
‘It goes without saying that the principle that the prosecution is duty bound to investigate the defence of Alibi admits no exception. Evidence of eyewitnesses who testified as to the commission of the offence charged and the identity of the offender does not make the rule that Alibi must be investigated inapplicable.’
In view of the foregoing, I am of the view that the learned trial Judge was wrong in rejecting the Appellant’s defence of Alibi.
This Issue No.1 is consequently resolved in favour of the Appellant and against the Respondent.
ISSUE NO.2
Was the learned trial Judge right in law in convicting Appellant of murder when the case was not proved beyond reasonable doubt? (Distilled from Grounds 3, 4, 5 and 6 of the amended notice of appeal).
It was submitted on behalf of the Appellant that the case presented by the prosecution did not warrant his conviction because the prosecution failed to prove his guilt beyond reasonable doubt as required by Section 135 of the Evidence Act 2011.
The Learned Counsel for the Appellant submitted that the evidence produced by the prosecution falls far short of the required standard. He went further that there are fatal errors of the trial Judge which rendered unsafe, the verdict and conviction of the Appellant for the crime for which he was tried.
He contended that the state of affairs in Okwidiemor at the time of the crisis was a necessary background on which the learned trial Judge could consider the credibility of prosecution witnesses. He went further that the fact that Okwidiemo Community was split between the deceased (Jonathan) and his group of supporters which included PW1, PW2, PW3, PW4 and PW5 is well established in this case.
He referred to page 278 of the record of appeal where the learned trial Judge set out 10 items which she appears to have assumed to have been proved. The items are:-
(i) The deceased person Jonathan Akpome sent out his boys (workers) to buy bread and pure water.
(ii) That the boys were beaten up and tied down by some community persons.
(iii) That Jonathan including PW1 to PW5 left to the place where the boys were tied down.
(iv) That the 3rd, 5th, 6th, 7th and 8th accused persons were present at the scene.
(v) The boys Jonathan sent to buy bread were cut with cutlasses and tied down.
(vi) The deceased asked Kings Iriri the 8th accused what the problem was and the 8th accused told Jonathan Akpome the deceased that it was him they were actually looking for.
(vii) The 8th accused ordered his boys who were armed with cutlass, battle axe and gun to attack Jonathan Akpome.
(viii) The 3rd, 7th accused and others attacked Jonathan Akpome on the orders of the 8th accused person.
(ix) That the 8th accused called the police to say they have killed an armed robber.
(x) That the 8th accused person and the police after Jonathan Akpome had been killed later on the same day came with police vehicle to take away the valuable property of the deceased person.
It was contended on behalf of the Appellant that PW1 to PW5 who claimed to be eyewitnesses were not eyewitnesses and also that the evidence of PW1 to PW5 relied upon by the learned trial Judge were contradictory.
On the issue of murder, the Learned Counsel for the Appellant submitted that one of the ingredients of the offence of murder is that the accused person participated in committing the murder, but that presence at the scene of crime cannot amount to conviction on murder.
It was also submitted that the same evidence of identification which was rejected in setting 1st, 2nd and 3rd accused persons free were the same evidence the learned trial Judge used in convicting the Appellant. The Learned Counsel for the Appellant submitted that such evidence did not constitute evidence upon which the Appellant can be convicted.
He relied on the following cases:-
– THE QUEEN VS JOSHUA (1964) 1 ALL NLR Page 1 at 3;
– JOSEPH ADEREMI VS THE STATE (1975) LPELR SC 162/75.
It was also submitted that the Court wrongly relied on the evidence of PW3 and Exhibit ‘D’ – PW3’s extra-judicial statement. The said Exhibit ‘D’ is not evidence on which the Court can base a conviction. The Learned Counsel for the Appellant relied on the case of :- ATTAH VS STATE (2010) ALL FWLR Part 540 at 1224.
In conclusion, the Learned Counsel for the Appellant submitted that the count of conspiracy to commit murder and murder was not proved against the Appellant and that it is unsafe to sustain a conviction predicated on the evidence of discredited witnesses and contradictory evidence in the prosecution’s case.
The Learned Counsel for the Respondent in his response to the submission of Learned Counsel for the Appellant, submitted that to succeed in any criminal case the prosecution is expected to prove its case against the accused beyond reasonable doubt. He relied on Section 135 of the Evidence Act 2011 and the following cases:-
– JULIUS ABIRIFON VS THE STATE (2013) LPELR ? 20807 (SC);
– ADIO VS THE STATE (1986) 5 SC Page 194 at 219 ? 220;
– ITU VS STATE (2016) 5 NWLR Part 1506 Page 443.
He also stated that proof beyond reasonable doubt has been interpreted to mean that prosecution must by credible evidence prove the ingredients of the offence for which the accused person is facing trial. He relied on the case of:- OGUONZEE VS STATE (1998) 58 L.R.C.N 3512 at 3551.
It was submitted on behalf of the Respondent that it is settled law that the prosecution can prove its case beyond reasonable doubt by any or the combination of the following means:-
(a) By confessional statement and admission of the accused.
(b) By direct evidence of eyewitnesses and
(c) By circumstantial evidence.
Learned Counsel relied on the following cases:-
– OGBA VS STATE (1992) 2 NWLR Part 222 Page 146;
– OLADIPUPO VS STATE (1993) 2 NWLR Part 590 Page 253;
– EDAMINE VS STATE (1996) 3 NWLR Part 58 Page 530 at 531;
– OGUONZEE VS STATE (Supra);
– EMEKA VS STATE (2001) 14 NWLR Part 734 Page 666 at 683;
– OWHORUKE VS C.O.P (2015) Part 245 L.R.C.N Page 35;
– JULIUS ABIRIFON VS THE STATE (Supra)
Concerning the offence of murder, it was submitted on behalf of the Respondent that the onus of proof is on the prosecution to establish by evidence the following facts beyond reasonable doubt:-
(a) The fact of death.
(b) Death within a year and a day of the act
(c) The act or omission on the part of the accused directly causing death of the deceased, and
(d) The intent to kill or do grievous bodily harm or do an act or make the omission likely to endanger human life while pursuing an unlawful purpose.
It was further submitted that the above four conditions of the law must co-exist and where one of them is absent, the charge will fail. He relied on the following cases:-
– OWHORUKE VS C.O.P (Supra);
– IDOWU VS STATE (2000) 80 L.R.C.N 2788;
– OGBA VS STATE (Supra);
– NWOSU VS THE STATE (1986) 4 NWLR Part 35 Page 384.
On conspiracy, it was submitted that for the prosecution to succeed in a charge of conspiracy it has to prove:-
(a) An agreement by two or more persons to do an illegal or legal act by illegal means.
(b) The proof is by direct evidence or circumstantial evidence or inference from certain proved criminal act.
The Learned Counsel for the Respondent relied on the following cases:-
– OBIAKOR VS THE STATE (2002) 6 SC Part 2 Page 33 at 39 – 40;
– PATRICK NJOVENS VS THE STATE (1973) 5 S.C. Page 17.
He submitted that the learned trial Judge inferred conspiracy from the proved facts of murder.
It was also submitted by the Learned Counsel that the prosecution proved that it was the act of the Appellant and the others that caused the death of the deceased. He relied on the evidence of PW1 to PW5 and the following cases:-
– ALARAPE VS STATE (2001) 5 NWLR Part 705 Page 79;
– OYAKHIRE VS STATE (2006) 15 NWLR Part 1001 Page 157.
It was submitted further on behalf of the Respondent that the findings of the trial Court is not perverse having been based on credible evidence. He therefore urged that the findings of the trial Court be affirmed.
The Learned Counsel for the Respondent also submitted that what the Appellant’s Counsel referred to as inconsistencies and contradictions in the evidence of the prosecution witnesses are mere discrepancies which do not affect the substance of the case. He went further that for any conflict or contradictions of a witness to be fatal to its case, they must be substantial and fundamental to the main issues in question before the Court. He relied on the cases of:-
– AGBO VS STATE (2006) NWLR Part 977 Page 545;
– DIBIE VS STATE (2007) 3 SCNJ Page 160 at 170 – 178;
– OGBU VS THE STATE (2007) 2 SCNJ Page 334 – 335;
– AKPA VS THE STATE (2010) Vol. 8 L.R.C.N Page 70 (2008) 14 NWLR Part 1106 Page 72.
On whether the PW1 to PW5 are tainted witnesses, the Learned Counsel for the Respondent submitted that it does not matter whether the prosecution witnesses are blood relations or members of the group led by the deceased Jonathan Akpome. He relied on the following cases of:-
– OMOTOLA VS STATE (2009) 7 NWLR Part 1139 Page 148 at 177 Paragraphs C – D;
– OLALEKAN VS STATE (2002) FWLR Part 91 Page 1605;
– STATE VS USMAN (2005) 1 NWLR Part 906 Page 81 at 133 Paragraphs B – D.
He finally urged that this appeal be dismissed and the Judgment of the trial Court affirmed.
The Learned Counsel for the Appellant in his reply brief of argument emphasized his earlier submission on this issue.
He contended that where there are material contradictions in the evidence of the prosecution’s witness, the Court is duty bound to discountenance the entire evidence and treat it as unreliable. The Court cannot pick which to believe. The prosecution must either sink or sail with his evidence.
He relied upon the case of :- AL-MUSTAPHA VS STATE (2013) 17 NWLR Part 1383 Page 350 particularly Page 403 Paragraph G.
The Learned Counsel for the Appellant submitted that the contradictions in the prosecution’s witness testimony are material and evidence of PW1, PW2, PW3 PW4 and PW5 ought to have been treated as unreliable and expunged by the trial Court.
He finally urged that the appeal be allowed.
In criminal prosecutions, it is trite law that the required standard is that of proof beyond reasonable doubt. The burden on the prosecution in a criminal trial has been succinctly enshrined in Section 135(1) of the Evidence Act 2011, which provides as follows:-
‘If the commission of a crime by a party to any proceeding is directly in issue in any proceedings, civil or criminal, it must be proved beyond reasonable doubt.
Proof beyond reasonable doubt does not mean that the prosecution must proof its case with mathematical exactitude nor does it mean proof beyond any shadow of doubt.
When the ingredients of any particular offence the accused is charged with has been proved, then the prosecution is said to have proved its case beyond reasonable doubt.
See the following cases:-
– DIBIE VS STATE (Supra);
– JULIUS ABIRIFON VS THE STATE (Supra);
– ADIO VS THE STATE (Supra);
– ITU VS STATE (Supra).
The guilt of an accused can be proved through any of the following methods:-
(a) Through confessional statement of the accused, or
(b) Through circumstantial evidence, or
(c) Through the testimony of an eyewitness or eyewitnesses.
See the following cases:-
– IGABELE VS STATE (2006) 6 NWLR Part 975 Page 100;
– OGBA VS STATE (Supra);
– EMEKA VS STATE (Supra);
– NWOSU VS THE STATE (Supra).
The Appellant and the other accused persons were arraigned before the lower Court on 28th day of March 2012 on two counts charge of Conspiracy to commit murder punishable under Section 324 of the Criminal Code Cap C21, Volume 1 Laws of Delta State of Nigeria 2006 and Murder punishable under Section 319(1) of the Criminal Code Cap C21, Laws of Delta State of Nigeria 2006.
On the issue of conspiracy, it has been held in a number of decided cases to be an agreement by two or more persons to do an unlawful act or do a lawful act by unlawful means. The two or more persons must be found to have combined in order to ground a conviction.
See the following cases:-
– OBIAKOR VS THE STATE (Supra);
– SULE VS STATE (2009) 17 NWLR Part 1169 Page 33;
– YAKUBU VS STATE (2014) L.P.E.L.R 22401 (SC);
– GARBA VS C.O.P (2007) 16 NWLR Part 1060 Page 378 at 400;
– NJOVENS VS THE STATE (1973) 5 S.C. Page 17;
– KAYODE VS THE STATE (2016) L.P.E.L.R 40028 (SC).
The main substance of the offence of conspiracy is the meeting of minds of the conspirators which is hardly capable of direct proof. The offence of conspiracy is established as a matter of inference deduced from certain criminal acts of the parties concerned.
On the issue of murder, the ingredients of the offence of murder are:-
(a) That the death of the deceased occurred.
(b) That the death of the deceased was caused by the accused or accused persons on trial, and
(c) That it was the act or omission of the accused that caused the death of the deceased victim and such act or omission was intentional or with the knowledge that death or grievous bodily harm was the probable result or consequences.
The ingredients mentioned above must co-exist if any of them is missing then the offence of murder cannot be said to have been proved hence the prosecution cannot obtain conviction of murder against the accused person and the Court must exonerate him and acquit him of the offence of murder.
The prosecution always has the heavy task of proving its case or aforementioned ingredients beyond reasonable doubt. That is the standard of proof short of which the prosecution shall fail.
See the following cases:-
– NWOSU VS THE STATE (Supra);
– OGBA VS STATE (Supra);
– GIRA VS STATE (1996) 2 NWLR Part 443 Page 375.
In the instant appeal, the Appellant was convicted of murder which is a capital offence. The conviction for murder carries sentence of death without any option. Therefore, care must be taken by the trial Judge in ensuring that the evidence produced by the prosecution unquestionably point to the guilt of the accused person.
At this juncture, it would be necessary to look at the state of affairs in Okwidiemo town at the time of the crisis which I believe was necessary background on which the learned trial Judge could have considered in determining the credibility of the prosecution witnesses in this case.
The evidence before the learned trial Judge was that Okwidiemo Community was divided between the deceased Jonathan Akpome and his group of supporters which included PW1 to PW5. The bone of contention is the accusation against Jonathan Akpome the deceased and his group who were seen as armed robbers and kidnappers and those other members of the community who opposed them.
PW3 stated at page 203 of the Record of Appeal as follows:-
” It is correct that before the 17th day of May 2011, there has been a dispute between the deceased and Chief Smart Iriri and some of the youths. There are two factions in Okwidiemo, one supporting my husband and the other not supporting my husband the deceased. Believe Oreh is not from Okwidiemor. He is a worker at the site. Victor Osieyor is from Okwidiemo. He is on the side of my husband. Maxwell Iriri is also on my husband side. PW1 is also on my husband’s side. PW2 is also on my husband’s side. (See Page 203 paragraphs 2 & 3 of the Record of Appeal)”.
A careful reading of the evidence of PW3 set out above would reveal that in evaluating the evidence of the prosecution witnesses, the learned trial Judge ought to have taken into consideration the fundamental division in the community. The fact that PW1 to PW5 are members of the gang led by the deceased ought to have been taken into account as the interest of punishing their opponent in the community who regard their group as armed robbers and kidnappers.
The learned trial Judge at page 278 of the record of appeal set out 10 items which she assumed to have been proved. It is set out as follows:-
(i) The deceased person Jonathan Akpome sent out his workers to buy bread and pure water.
(ii) The boys were beaten up and tied down by some community persons.
(iii) That Jonathan including PW1 to PW5 left to the place where the boys were tied down.
(iv) That the 3rd, 5th, 6th, 7th and 8th accused persons were present at the scene.
(v) The boys Jonathan sent to buy bread were cut with cutlass and tied down.
(vi) The deceased asked Kings Iriri, the 8th accused what the problem was and the 8th accused told Jonathan Akpome, the deceased that it was him they were actually looking for.
(vii) The 8th accused person ordered his boys who were armed with cutlass, battle axe and gun to attack Jonathan Akpome.
(viii) That the 3rd, 7th accused and others attacked Jonathan Akpome on the orders of the 8th accused person.
(ix) That the 8th accused called the police to say that they have killed an armed robber.
(x) That the 8th accused person and the police after Jonathan Akpome had been killed later on the same day came with a police vehicle to take away the valuable property of the deceased person.?
A careful reading of items assumed to have been proved above, would reveal that the learned trial Judge did not show or state which of the eyewitnesses gave a particular evidence and he did not attempt to evaluate their evidence, for example, in items (i), (ii) and (v) above, the learned trial Judge asserted that the boys the deceased sent to buy bread were beaten up, tied and cut with cutlass. This is not supported by admissible evidence on the record of appeal. The two boys allegedly beaten, tied up and cut with cutlass who were in the best position to tell the Court who beat them, tied them and cut them with cutlasses were not called as witnesses and no explanation was given for their failure to give evidence.
The consequence of failure to call the two boys allegedly beaten up is that if the police had called them, their evidence would have been unfavourable to the prosecution’s case.
In SUNDAY VS STATE (2010) All FWLR Part 548 at Page 874, it was held that where an eyewitness who ought to be called by the prosecution was not called, there is a presumption of withholding evidence against the prosecution as such evidence will be unfavourable to them. The PW1, PW2, PW3, PW4 and PW5 did not give evidence that they were present when the boys were allegedly beaten up, tied up and cut with cutlasses. Their evidence was hearsay evidence.
Therefore, there is no evidence to support the purported assertion of the trial Judge.
Apart from the above inadmissible evidence upon which the learned trial Judge relied upon, the evidence of the prosecution witnesses is replete with inconsistencies and contradictions which rendered the evidence of PW1 to PW5 unreliable.
For example, (a) while giving account as to when PW1, PW2, PW3 and the deceased arrived at the alleged scene of crime, PW1 at page 191 of the record of appeal stated thus:-
‘As soon as Jonathan Akpome asked the 8th accused person why they had to hold his boys, the 8th accused person told Jonathan that Jonathan is actually the person that they were looking for. The 8th accused person ordered his boys who had battle axe, cutlass and gun to attack Jonathan Akpome.’
The above evidence of PW1 was contradicted by the testimony of other prosecution witnesses.
(b) PW2 (the brother of the deceased) in his evidence, said at page 195 of the record of appeal as follows:-
‘When we met the boys tied down, my brother tried to ask the 8th accused what the matter was. It was there that Festus Egite ran out from where he was and said ?na him we even dey wait for, wetin we still they waste time. Ediri come Festus Egite now used cutlass to cut my brother Jonathan on his upper hand.’
By the evidence of PW2, the 8th accused did not respond to the deceased. It was Festus Egite that responded.
The PW1’s evidence painted a picture of events totally different from that painted by PW2.
(c) On the part of PW3 i.e. the wife of the deceased, she gave another totally different account of events from that given by PW1 and PW2 as stated in the paragraph above.
At page 201 of the record of appeal, PW3 testified thus:-
‘On our way going, we did not know that the boys who held the persons that Jonathan sent on an errand were in ambush, before we could get to the scene some of the boys who held the workers came out from the bush and attacked us. Jonathan and some of the workers were in front whilst we were behind. We were attacked with some weapons both cutlass, gun, battle axe, etc. In the process of the attack, they put Jonathan on the ground and attacked him with matchet whilst some of them were beating me and others. Some of the boys made attempt to rape me.’
At the conclusion of her evidence, the PW3 stated thus:-
It is correct that the only thing that the 8th accused person did was to call the police and carry the body of the deceased and his property.
The PW3’s evidence is not consistent with above evidence of PW1 and PW2 who claimed that the 8th accused ordered the attack on the deceased or that he said anything at the time they arrived the scene.
(d) As for PW4, her evidence showed that the 8th accused was not at the scene of the fight. At page 206 of the record of appeal, she stated thus:-
‘The 1st to 7th accused persons then called the 8th accused person and asked him to call police to come and carry the deceased that they have killed.’
Under cross examination, at page 208, PW4 stated thus:-
‘At the scene, I heard the youth putting a call to 8th accused asking him what he was still doing that he was not yet there (at the scene) with them…’
The account given by PW4 conclusively showed that 8th accused was not at the scene of crime. The youths could not be putting such a call to the 8th accused to come to the scene of the incident if he was already at the scene.
PW5, Victor Osienyo, in his own case, claimed to have accompanied the deceased to Okwidiemo Community where the deceased’s boys were alleged to have been beaten up and tied up by the community youths.
His account of events when they arrived at the scene, was diametrically different from the account given by PW1, PW2, PW3 and PW4.
At page 210 of the record of appeal, PW5 stated thus:-
When we got there i.e. Okwidiemo at front of Benjamin Azigbo’s father’s house under the kola tree, Jonathan asked Benjamin Azigbo why he had to tie the boys that he sent to buy pure water. It was then I asked John Jafuwa the 1st accused why they should be asking a senior man like the deceased person (Jonathan Akpome) such question. At that stage, they asked Jonathan to sit on the ground. I challenged 1st accused and asked him if he does not have elders and why should he in the community ask his elder to sit on the ground. The 1st accused ask me if I thought that they were joking and before I knew it, the 1st accused used the flat side of the cutlass in his hand to hit me on my back. When the 1st accused used the cutlass on me, Jonathan Akpome then warned the 1st accused person.
A careful reading of the above evidence of PW5 showed that asking the deceased to sit down is not consistent with the evidence of PW1 that someone gave an order to attack the deceased in the manner stated by PW1 and PW2.
Even the above evidence of PW5 contradicts his statement to the police where he said in Exhibit ?G? made on 12/9/2011 that it was John who told Jonathan that it was he, Jonathan that they were looking for and that the person he accused of insulting Jonathan was the said John which was contrary to his reference to 3rd accused person in his evidence in Court.
Therefore, the evidence of PW1, PW2, PW3, PW4 and PW5 relied upon by the trial Judge were contradictory as shown above.
The evidence of PW5 that the deceased addressed the question to Benjamin Azigbo (See page 212 of the record of appeal) contradicted the evidence of PW1 and PW2 that the question was addressed to the 8th accused person.
I am therefore of the firm view that with all the contradictions pointed out above in the evidence of PW1 to PW5, the learned trial Judge ought to have rejected the prosecution’s evidence as unreliable. The learned trial Judge’s reliance on the contradictory evidence in coming to her decision is fatal to the Judgment delivered.
Before I conclude this appeal, it would also be necessary to consider the issue that the Appellant was charged along with the 1st 2nd and 4th accused persons and they were all linked to the crime by PW1, PW2 and PW3 while testifying in the open Court.
The trial Court held this procedure to be unacceptable in discharging and acquitting the 1st, 2nd and 4th accused persons. The reason proffered by the trial Judge was that no identification parade was conducted in the course of investigation or at the police station to enable the prosecution witnesses to identify the discharged accused persons. It therefore follows that the trial Court recognizes the necessity for identification parade in the instant case. But no identification parade was conducted for the Appellant whose case is closely related or interwoven with that of the 1st, 2nd and 4th accused persons discharged by the learned trial Judge. In view of that, I am of the view that the Appellant ought to have been discharged and acquitted. This is because, the trial Judge having rejected the identification evidence of the prosecution witnesses with regards to the 1st, 2nd and 4th accused persons, the Court cannot rely on the same flawed evidence to convict the Appellant.
I am fortified in my view above by the decision of the Supreme Court in: – ONUCHUKWU VS STATE (Supra), where it was held by Ogundare JSC as follows:-
‘Without the evidence of PW1 and PW2, the convictions of the Appellants cannot be sustained. Strangely enough, the Court below did not regard the evidence of PW1 strong enough to sustain the conviction of the 7th accused whose appeal on that score was allowed. But the Court relied on the evidence of the same witness in sustaining the convictions of the present Appellants. A case of contradiction or double standard.
I am also of the view that the learned trial Judge’s finding predicated on inconsistent and contradictory evidence of prosecution witnesses are of no probative value to sustain the conviction for conspiracy and murder.
Furthermore, it is trite that where there are material contradictions in the evidence of the prosecution witnesses as in this case, the Court is duty bound to discountenance the entire evidence and treat the evidence as unreliable. The Court cannot pick which to believe. The prosecution must either sink or sail with his evidence. The Court has no discretion in the matter. See:- AL-MUSTAPHA VS THE STATE (Supra).
In ONUCHUKWU VS STATE (Supra), the Supreme Court held amongst others thus: –
‘Where there are such contradictions and inconsistencies in the evidence before a Court, such as to cast reasonable doubt upon the guilt of the accused person, such accused person should be given the benefit of doubt and not be convicted on the basis of such unreliable evidence.’
In view of the foregoing, this Issue No. 2 is resolved in favour of the Appellant and against the Respondent.
In the result, with the resolution of the two issues for determination in this appeal in favour of the Appellant and against the Respondent, it is my view that there is merit in this appeal and it is hereby allowed.
Consequent upon the foregoing, the Judgment of the lower Court in Charge No. HOR/3C/2012 ? Between: THE STATE VS (1) JOHN JAFUWA (2) JOSIAH OMAYERUE (3) FESTUS EGITIE (4) DAVID IRIRI (5) ALEX AKPALLALA (i.e. APPELLANT) (6) ANDERSON EMMANUEL (7) EDIRI IRIRI (8) CHIEF KINGS IRIRI, delivered on the 18th day of December, 2013, is hereby set aside as far as ALEX AKPALLALA (the Appellant) is concerned.
In its place, the Appellant i.e. ALEX AKPALLALA is hereby discharged and acquitted.
Appeal allowed.
PHILOMENA MBUA EKPE, J.C.A.: I had the advantage of reading before now the draft judgment just delivered by my learned brother J. O. BADA JCA.
I am totally in agreement with the reasoning and conclusions reached therein. My Lord has painstakingly dealt with the two issues canvassed by both parties in this appeal and I have nothing more to add.
Having resolved the two issues for determination in this appeal in favour of the Appellant as against the Respondent, it is my ardent view that the appeal is meritorious and it is hereby allowed.
Consequently therefore, the judgment of the lower Court in Charge No. HOR/3c/2012 – Between: THE STATE VS. (1) JOHN JAFUWA (2) JOSIAH OMAYERVE (3) FESTUS EGITE (4) DAVID IRIRI (5) ALEX AKPALLALA (i.e. Appellant) (6) ANDERSON EMMANUEL (7) EDIRI IRIRI (8) CHIEF KINGS IRIRI, delivered on the 18th day of December, 2013 is hereby set aside as far as ALEX AKPALLALA (the Appellant) is concerned.
In its place, the Appellant i.e. ALEX AKPALLALA is hereby discharged and acquitted. I too, allow the appeal.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: My learned brother, JIMI OLUKAVODE BADA, JCA, made available to me a draft copy of the judgment just delivered.
I am in agreement with his conclusion that the appeal is meritorious and should be allowed.
I allow the appeal, set aside the judgment on the trial Court in charge No: HOR/3C/2012 delivered on 18th December 2013 and quash the conviction and sentence therein and discharge and acquit the Appellant.
Appearances:
CHIEF T.J. OKPOKO SAN with him, I.O. OSOBE, ESQ. and N.E. DOZIE, ESQ.For Appellant(s)
MR. PETER MRAKPOR, Attorney-General and Commissioner for Justice, Delta State with him, O.F. ENENMO, ESQ. Director, Department of Appeals, Ministry of Justice, Delta State and C.O. AGBAGWU Assistant Director, Department of Appeals, Ministry of Justice, Delta StateFor Respondent(s)
