ALO v. STATE
(2020)LCN/14366(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Thursday, June 25, 2020
CA/E/105C/2018
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
MARCEL ALO APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE PRESUMPTION OF INNOCENCE OF AN ACCUSED PERSON UNTIL PROVEN GUILTY
It is now trite that pursuant to the provisions of Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), every person accused of committing a crime is presumed innocent and onus of establishing his guilt rests squarely on the accusers. This position has been reiterated in several judicial pronouncements and finds further consonance in Section 135 (2) of the Evidence Act, 2011. It needs be added that for the stated onus to be discharged, proof must be beyond reasonable doubt. See NWANKWO VS FRN (2003) 4 NWLR (PT 809) 1.
For a criminal allegation to be proved beyond reasonable, the essential elements or ingredients must be established by credible evidence beyond reasonable doubts. See ALAKE VS STATE (1991) 7 NWLR (PT 205) 567 at 592. PER OYEWOLE, J.C.A.
INGREDIENTS TO SUCCESSFULLY PROVE THE OFFENCE OF MURDER
As earlier stated, the Appellant and his co-accused were arraigned and tried for the murder of one Chukwuma Ere. To successfully prove the offence of murder, it must be established beyond reasonable doubts that the deceased died, that the cause of death was the unlawful act or omission of the Appellant and that the said cause of death was intentional with the knowledge that death or grievous bodily harm was a probable consequence. See HASSAN VS STATE (2001) 6 NWLR (PT 709) 286 and AHMED VS STATE (2001) 18 NWLR (PT 746) 622. PER OYEWOLE, J.C.A.
WHETHER OR NOT WHERE COMMON INTENTION HS BEEN EXHIBITED, THE ROLE PLAYED BY THE INDIVIDUALS IS IMMATERIAL
The accepted evidence led by the Respondent as prosecution at trial, disclosed that the Appellant and his co-accused had a common intention to unlawfully kill the deceased who they found irksome, in the gruesome and barbaric manner they did. The law is that where such common intention had been exhibited, the role played by the various individuals was immaterial. See ALARAPE VS STATE (2001)5 NWLR (PT 705) 79 at 100-101 and 102 and AKINKUNMI VS STATE (1987) 1 NWLR (PT 52) 608. PER OYEWOLE, J.C.A.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Ebonyi State, Abakaliki Judicial Division, holden at Abakaliki, delivered on the 29th June, 2018 by IGBOJI, J wherein the Appellant and his co-accused were found guilty of murder and consequently convicted and sentenced to death.
The Appellant and his five co-accused were arraigned for the murder of one Chukwuma Ere and they all pleaded not guilty, Appellant was 3rd Accused at trial. In the course of trial, the 6th accused passed away leaving five of them to complete the trial. At trial prosecution called six witnesses comprising three relations of the deceased and three police officers. PW1, PW2 and PW3 gave eye witness accounts of the motive of the accused persons and the roles played by them in the alleged murder of the deceased. Their accounts included how the body of the deceased was dismembered and burnt to ashes. PW4 also recounted how he was with the deceased on investigative activities before he ran away on being attacked. PW5 and PW6 gave accounts of their respective investigative activities and tendered various
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exhibits including the extra judicial statements of the accused persons which were admitted without objection. Also admitted in evidence was the alleged murder weapon recovered from one of the accused persons.
Each of the accused persons testified from the witness box denying any form of involvement in the alleged murder.
After taking the final addresses of counsel, the learned trial Judge gave a reserved judgment as aforesaid on the 29th June, 2018 wherein he considered the totality of the adduced evidence and found the accused persons guilty as charged. They were then convicted and sentenced to death.
Dissatisfied, the Appellant invoked the appellate jurisdiction of this Court via a Notice of Appeal dated 30th July, 2018 but filed on the 7th August, 2018, containing four grounds.
At the hearing of the appeal, Uzuegbu Esq. of counsel for the Appellant, adopted the Appellant brief filed on the 25th March, 2019 but deemed properly filed and served on the 29th April, 2020 as well as the Appellant’s Reply brief filed on the 21st May, 2020 as the arguments of the Appellant in furtherance of the appeal.
For the Respondent, Mr. Alobu
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the learned Director of Public Prosecutions, Ebonyi State adopted the Respondent’s brief filed on the 20th May, 2020 as the arguments of the Respondent in contesting the appeal.
The Appellant distilled 3 issues for determination as follows:
1. Whether the trial Court was right when it held that the prosecution proved the offence of murder against the appellant beyond reasonable doubt through cogent and credible evidence as required by law.
2. Whether the learned trial Court was right when it failed to accord the benefit of doubt to the appellant considering the manifest inconsistencies and contradictions in the evidence of prosecution witness but rather shifted the burden of proof of innocence when it relied heavily on the inconsistencies and contradictions in the case.
3. In view of the fact that the alleged corpse of the deceased was not seen in this case that was reported to the police as a case of kidnapping, did the presumption of death from seven years as provided by Section 164 (1) of the Evidence Act, 2011 not avail the appellant of the offence when he was charged less than one year after the alleged kidnap.
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The Respondent equally distilled 3 issues formulated thus:
1. Whether the prosecution successfully proved its case beyond reasonable doubt as to have warranted the conviction of the appellant;
2. Whether the presumption of death from seven-year absence inures in favour of the Appellant in the face of the avalanche of evidence underscoring his culpability in the murder of the deceased.
3. Whether the prosecution’s case was froth with contradictions as to have warranted the acquittal of the Appellant by the trial Court.
A careful appraisal of the two sets of formulated issues shows that they address the same subject-matters although issue 2 of the Appellant was addressed by issue 3 of the Respondent while issue 3 of the Appellant is issue 2 of the Respondent. I shall adopt the issues of the Appellant, juxtaposed with the appropriate arguments of the Respondent while taking all the issues together.
It was submitted for the Appellant that the Respondent as prosecution failed to lead credible evidence to prove the offence of murder beyond reasonable doubt. Learned counsel outlined the legal ingredients of the offence of murder with
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emphasis on what needed to be done by the prosecution to discharge the onus on it. He referred to IGABELE VS STATE (2006) 6 NWLR (PT 975) 100, UWAGBOE VS STATE (2007) 6 NWLR (PT 1031) 606 and BELLO VS STATE (2007) 10 NWLR (PT 1043) 564.
Appellant’s counsel urged the Court to disregard the testimony of PW1 but instead rely on the testimony of PW4, a police officer and accordingly attribute the death of the deceased to a spontaneous mob action. He further argued that the testimonies of the prosecution witnesses were not sufficiently credible especially when the testimonies of the other witnesses were contradicted by that of PW4 which had thereby raised reasonable doubts in favour of the Appellant. He referred to OMOZEGHIAN VS ADJARHO (2006) 4 NWLR (PT 969) 33, AGBI VS OGBE (2006) 11 NWLR (PT 990) 65 and CHIA VS STATE (1996) 6 NWLR (PT 455) 465.
The learned counsel argued further that the case presented by the Respondent was replete with material contradictions but that the learned trial Judge instead of resolving the ensuing doubts in favour of the Appellant, erroneously invoked the last seen doctrine thereby shifting the burden of proof to
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the Appellant. He referred to FOLARIN VS THE STATE (1995) 3 NWLR (PT 371) 31, ONAFOWOKAN VS THE STATE (1987) 3 NWLR (PT 52) 659, AIGUOREGHIAN VS THE STATE (2004) 3 NWLR (PT 860) 367 and ORISA VS STATE (2018) 11 NWLR (PT 1631) 453 at 472.
It was finally submitted that the deceased must have been missing for seven years before the presumption of death pursuant to Section 164(1) of the Evidence Act could be invoked thereby rendering the arraignment of the Appellant and his co-accused premature.
On his part for the Respondent, Mr. Alobu equally outlined the essential elements of the offence of murder and how the prosecution could establish it. He referred to IGABELE VS THE STATE (supra) and ADAVA VS STATE (2006) 9 NWLR (PT 984) 152 at 167.
He pointed out that PW1-PW4 were eye-witnesses who testified directly of what they saw at the scene of the incident where the Appellant participated in beating, killing and eventually burning the body of the deceased to ashes. Learned counsel highlighted various portions of the said testimonies and submitted that the pieces of evidence were not contradicted or controverted by the Appellant at trial. He further
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submitted that notwithstanding that the body was not found, the Court would still validly convict going by the adduced evidence before it. He referred to EDIM VS THE STATE (1972) 4 SC 160 at 162 and BABUGA VS STATE (1996) 7 NWLR (PT 460) 282.
He submitted that the eye witness evidence adduced by PW1-PW3 were not subjected to any form of cross-examination and could be rightly acted on by the Court unless found to be incredible. He referred to IWUNZE VS FRN (2013) 1 NWLR (PT 1334) 119 and OFORLETE VS THE STATE (2000) 12 NWLR (PT 681) 416.
He referred specifically to the testimony of PW4 and submitted that it did not conflict with or contradict the testimonies of PW1-PW3 as submitted by the learned counsel for the Appellant. He urged the Court to hold that the adduced evidence established all the ingredients of murder.
Mr. Alobu further submitted that the presumption of death under Section 164 (1) of the Evidence Act did not arise in this case where there was evidence how the deceased was murdered in full public glare and his body burnt. He referred to ATTA VS STATE (1993) 4 NWLR (PT 288) 403 at 420 and STATE VS OKECHUKWU (1994) 9 NWLR (PT 368) 273.
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He pointed out what he alleged to be distortions of the contents of the record of appeal by his learned friend who tried to point in the direction of possible kidnap and submitted that the evidence adduced was unequivocal that the deceased was murdered and his body burnt by the Appellant and his co-accused persons.
Finally, the learned Director of Public Prosecutions outlined what constitutes contradictory evidence and submitted that the testimonies of the prosecution witnesses may contain minor discrepancies but did not contradict. He referred toUDE VS THE STATE (2016) LPELR-40441(SC), BAREWA PHARMACEUTICALS LTD VS FRN (2016)17 NWLR (PT 1540) 43, AYO GABRIEL VS THE STATE (1989) 5 NWLR (PT 122) 457, SALE DAGAYYA VS STATE (2000) NSCQLR (VOL. 25) 780 at 797-798, SALAWU VS STATE (2011) 47 NSCQR 276 at 349 and LT. F.O. ODUNLAMI VS THE NIGERIAN ARMY (2013) AELR 1776 (SC).
He urged the Court to hold that there was no contradiction in the evidence adduced by the prosecution and accordingly dismiss the appeal.
In his Reply brief, the learned counsel for the Appellant reiterated his earlier submissions and urged the Court to allow the
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appeal.
It is now trite that pursuant to the provisions of Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), every person accused of committing a crime is presumed innocent and onus of establishing his guilt rests squarely on the accusers. This position has been reiterated in several judicial pronouncements and finds further consonance in Section 135 (2) of the Evidence Act, 2011. It needs be added that for the stated onus to be discharged, proof must be beyond reasonable doubt. See NWANKWO VS FRN (2003) 4 NWLR (PT 809) 1.
For a criminal allegation to be proved beyond reasonable, the essential elements or ingredients must be established by credible evidence beyond reasonable doubts. See ALAKE VS STATE (1991) 7 NWLR (PT 205) 567 at 592.
As earlier stated, the Appellant and his co-accused were arraigned and tried for the murder of one Chukwuma Ere. To successfully prove the offence of murder, it must be established beyond reasonable doubts that the deceased died, that the cause of death was the unlawful act or omission of the Appellant and that the said cause of death was intentional with the knowledge that
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death or grievous bodily harm was a probable consequence. See HASSAN VS STATE (2001) 6 NWLR (PT 709) 286 and AHMED VS STATE (2001) 18 NWLR (PT 746) 622.
Towards discharging the onus on it, the Respondent as Prosecution called 6 witnesses at trial. The Appellant tried to paint a picture of total innocence in his testimony in the witness box. In concluding that the Appellant and his co-accused at trial were guilty of the murder of the deceased, the learned Trial Judge accepted the testimonies of the prosecution witnesses and found as follows:
The doctrine of last seen is an exception to the watertight constitutional provision that an accused is presumed innocent until proved guilty.
Prosecution Witnesses have consistently testified that the deceased went to his farm with two policemen when the accused persons used lethal weapons to attack and killed him, pieced his body and burnt him up. Based on the said doctrine, it is the duty of the accused persons to give an explanation relating to how the deceased met his death. Certainly, in view of the absence of the said explanation, the Court will be justified in drawing the inference that the accused
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persons killed the deceased. I so and hereby convict the accused persons as charged.
With due respect to the learned Trial Judge, there seems to be an apparent mix-up in the above, in view of the adduced evidence by the prosecution, which his lordship found credible and accepted.
PW1, PW2 and PW3 gave copious testimonies of how the deceased died. The testimony of PW1, brother of the deceased, is on pages 67-73 of the record of appeal. He gave a background of the various disputes between the deceased and the accused persons after the deceased handed over as the Village Head. On pages 68-69 of the record of appeal, he recounted how the deceased was murdered thus:
Information came to the deceased that the 2nd accused is planning to accuse him of setting the house on fire. The deceased first reported the arson incident to the Police Station Iziogo towards evening and the police assured him that they would visit the scene early in the morning.
As promised, the police came the next morning and went to the scene of the incident with the deceased. While at the scene, all the accused persons went to the land armed with iron rods and other dangerous
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weapons. On their arrival, the 1st accused was the first to hit the accused with an iron on his head. The rest of the accused persons joined in beating the deceased till he died. The police was overwhelmed and a stick was recovered from the 6th accused person. The 1st accused was heard mocking the deceased saying ‘let me see you work with your certificate as a new graduate of the University’. I watched the whole episode but they did not do anything to me except that after killing the deceased, the accused persons went to his house, burnt his car, carted away all his belongings. They also went to my house, set it ablaze and made heaps in my compound. Nobody is living both in the deceased’s and my own compound today.
I went to lodge a report at Izziogo Police Station from where I was directed to Iboko Police Station where I was given (12) twelve policemen who accompanied me to the scene of the incident i.e Ekumeagu.
On the part of PW2 who was a son of the deceased, his testimony before the trial Court is on pages 75-82 of the record of appeal. He recounted thus on pages 75-76:
I know the accused persons. I also know one Chukwuma
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Ere who was killed by the accused persons.
On the 17th April, 2007 he was killed by the accused persons. At about 8.00am on the said date, one Jeremiah Nwebonyi, Nkwuda Nwebonyi and myself were working in the farm for the deceased. The deceased later came to the farm with two Policemen from Izziogo Police Station. The deceased was there to show the Police where the accused persons set fire on his farm. While the Police was being shown the place, the accused person and others now at large came to the farm armed with sticks and rods and surrounded the farm. They chased the two policemen away from the farm and pounced on the deceased. The 1st accused was the first to hit the deceased with iron rod on his head. The 6th accused joined, followed by others. They beat the deceased to death.
After beating the deceased to death, the first accused left the scene with his motorcycle. The 6th accused and one other person now at large (i.e Wilfred Nwankwoegu) decided to cut off the head of the deceased and Godwin Ofim (also at large) cut off the deceased’s head. Thereafter, one Fabian Oruta (also at large) carried the head of the deceased. Linus Nkwuda (4th
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accused) and Francis Njoku (at large) boasted that they are waiting to see how the deceased will graduate from Abia State University. The accused persons carried the body of the deceased in the barrow we brought to the farm and took him to the playground while one Fabian Oruta carried the head of the deceased to the said playground.
At the playground, the accused persons cut the body of the deceased in pieces and shared it among themselves. When each packed his own share, he will put it in the wheel barrow. Thereafter, the 5th accused went to the deceased’s house and collected fuel. Both Jeremiah Oruta and FadaIduma (at large) removed two tyres from the deceased’s car, placed them on the wheel barrow and Nkpuke Nwoba (at large) set fire on the pieced body of the deceased.
I know one Boniface Nwite (at large) played a role in the incident. Both himself and the 5th accused, Mathias Nwazufu, poured fuel on the body of the deceased. The body burnt to ashes.
After burning the body of the deceased, the accused persons went to his house, collected his property and set his house and car ablaze. The accused persons took the deceased’s
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property away in two cars.
I know one Linus Nwizzi (at large) owns one of the cars used. It is red in colour. The second car is owned by the first (1st) accused person.
Before the incident we were living in the same village. After the incident we were chased away from the village and we now live at Iboko.
The testimony of PW3 also a son of the deceased, can be found on pages 82-91 and 98 respectively of the record of appeal. On pages 83-85 thus:
On the 17th April, 2007 we were at the farm of the deceased working i.e myself, Abel and Jeremiah Nwebonyi. While we were working, the deceased came to the farm with two policemen to show them where the accused persons set fire on his farm. As this was happening, the accused persons and others now at large came and surrounded the farm. They chased away the policemen and began to beat the deceased. The said policemen tried to rescue the deceased, but they were forced away by the assailants.
The 1st accused person was the first to hit the deceased on the head with an iron rod and he fell on the ground. The rest accused persons and others now at large joined in beating the deceased till he
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died.
After the death of the deceased the 1st accused person took the deceased motorcycle and left the scene and the 6th accused and one Wilfred Nwankwegu (now at large) suggested that the head of the deceased be severed off. Sequel to this, one Godwin Ofim (now at large) severed off the head of the deceased. One Fabian Oruta then took the severed head of the deceased. Next, the 4th accused and one Francis Njoku (now at large) began to shout saying that he want to see how the deceased will graduate from Abia State University. Thereafter, they began to sing song of victory and carried the deceased’s headless body to the playground.
The duo of Peter Amegu and Michael Okegbua (now at large) took a barrow to the playground. The body of the deceased was sliced and shared among his assailants with everybody putting their share of his flesh in the said barrow.
Again, the duo of Father Iduma and Jeremiah Nwoba brought a tyre and placed on the pieced body of the deceased in the barrow while, the 5th accused and one Boniface Nwite (now at large) poured fuel on the body of the deceased. Another person by name Nkpuke Nwoba (at large) set fire on the
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body of the deceased and it burnt to ashes.
Having burnt the deceased’s body to ashes, his assailants sang to his house, looted same and thereafter, set his house and car ablaze. After burning the house and car, the 1st accused’s car (blue in colour) and another car belonging to Linus Nwizzi (red in colour) were used to carry away the deceased’s property. As they were taking away the deceased’s property, we ran to Iboko Police Station and narrated the incident to the police. The accused persons and others now at large killed the deceased – Chukwuma Ere.
After lodging the complaint, we were given a team of policemen who together with other stakeholders and friends of the deceased joined and moved to the deceased’s compound.
When we got to the playground where the deceased’s body was pieced and burnt, we saw all the accused persons celebrating the death of the deceased. When the accused persons sighted the brother to the deceased – Simeon Nwebonyi, they attempted to kill him took but he was rescued by the team of policemen.
The police attempted to arrest the accused persons but they resisted
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arrest. It was while the police was returning after they failed attempt to arrest the accused persons that they saw the 6th accused person on the way i.e Mbam Nwofoke and he was arrested with the stick he used in participating in the killing of the deceased. He was the only person arrested on the date.
The said witnesses were vigorously cross-examined which however failed to dent their credibility. Vital corroboration for various aspects of these eye witness testimonies came from the Police witnesses, PW4, PW5 and PW6.
PW4 was one of the two Police Officers who were with the deceased at the scene. On pages 100-101 of the record of appeal, PW4 described how he and his colleague escaped from the attack of the assailants of the deceased thus:
On the April, 2007 one Mr. Chukwuma Ere came to our office at about 2230 hours and reported that a gang of people went to a thatched house in their village and set fire there; burning heaps in the farm and the crops thereon. He mentioned some people (about four of them) who were seen by somebody before they ran away. We asked him to go that we shall come the next morning to the scene of crime.
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On reaching there in the morning we met the complainant who took us to the scene of crime on our way we met the Ward Councilor, Julius Oruta. We told the Councilor our mission and he followed us to the scene of crime. As we were inspecting the area, they played a gang and before we know it we saw people armed with marchets, sticks and other dangerous weapons who came to attack us. We managed to escape and lost our baton and handsets in the process.
I don’t know that happened to Chukwuma Ere as I was running for my life.
I made a statement in respect of this matter and shall recognise it if I see same. (PW4 identifies his statement and counsel seeks to tender same in evidence).
No objection.
Court: PW4’s statement to the police dated 18th April, 2007 is admitted in evidence and marked as Exhibit ‘D’.
NB: Put that when the PW4 read a portion of his statement, he recollected that the angry mob beat up Chukwuma Era and even manhandled one of the Police Officers CPL Emmanuel Ani, then a Police Constable.
PW4: I have never set my eyes on Chukwuma Ere again after he took us to the scene of crime where we were
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attacked and I managed to escape unhurt. I do not know where Corporal Ani is now.
The testimony of PW5 at trial is in pages 104-111 of the record of appeal. He obtained extra judicial statements from the Appellant and his co-accused and further testified of what he gathered in the course of his investigation thus:
In the course of investigation, the case file was ordered to be transferred from Iboko Police which initiated the case for further investigation. In response thereto, some of the accused persons were transferred along with the case file to state CID from Iboko Police Station; including one stick alleged to have been used during the killing, it was recovered from one Mbam Nwofoke. (This is the said stick). Counsel applies to tender the murder weapon as an Exhibit i.e the stick.
No objection.
Court: One stick recovered from one Mbam Nwofoke (6th accused) and allegedly used in killing Chukwuma Ere is admitted in evidence and marked as Exhibit ‘F’…
I visited the scene of crime and arrested some of the accused persons.
At the scene of the incident, I made an enquiry from which I gathered an information that
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after killing the victim, his body was butchered and shared among all the kindreds that make up Efunagu community who gathered at the village/market square. After sharing the deceased’s body, it was collected back from the recipients, put into a wheel barrow, put tyres and set it ablaze and later taken to unknown destination.
When we returned, we put up our Investigation Report. Since the body was not seen, there was nothing like post mortem examination. In the end, all the accused persons were arraigned in Court.
PW6 equally gave account of his investigative activities and how some of the accused persons were arrested and one of the identified murder weapons recovered. His testimony is on pages 112-115 of the record of appeal.
The question of whether the deceased was truly dead did not arise anymore in view of the copious testimonies earlier outlined which emanated from PW1, PW2 and PW3. Under cross-examination, these witnesses stood their ground that they witnessed the killing of the deceased in circumstances that left no doubt that he was dead.
PW2 and PW3 further testified of how the body of the deceased was dismembered and
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subsequently burnt to ashes in full public glare by the Appellant and his co-accused. These witnesses gave direct testimony which the learned Trial Judge found credible.
The defence put up by the Appellant was that of outright ignorance of the unfortunate incidence. His testimony is on pages 129-132 of the record of appeal. On page 130 he stated thus:
On the 17th April, 2007 at about 7.00 am I went to Mike Okegbue’s place where robbers were alleged to have gone to his compound and destroyed yams. We were there to see the extent of destruction to his yam when one Chukwuma Ere came with two Policemen who reported that they were there to arrest some people for burning Chukwuma Ere’s house.
The Police Officers directed that we visit the place where Chukwuma’s house was burnt. On getting to the place, the Police asked Chukwuma who owns the house and he told them that it was one Innocent Ijere. In turn, the police asked Chukwuma how come he was the one who complained to the Police. He replied that he reported to the Police because he may be accused of being the one that burnt the house if he kept quiet. That’s all I know about
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this case.
Under cross-examination he denied being aware of any fight or even any killing. The testimony of the Appellant of what transpired did not resonate with the submissions of his counsel who submitted in paragraph 4.06 of page 7 of the Appellant’s brief thus:
We say so because even the police investigators and the prosecution are in agreement that the incident that led to the kidnap of the deceased and his disappearance dove tailed to the activities of an angry mob action of disorderly villagers. The circumstances of this case was spontaneous angry mob action.
The Appellant’s counsel tried to persuade us that the Prosecution Witnesses presented evidence that was contradictory and exculpatory of the Appellant. However, the record of appeal, perused even with the most finely ground microscope failed to provide any support for such submission. In a criminal trial, for any conflict or contradiction in the evidence of the prosecution witnesses to be fatal to the prosecution’s case, the conflict or contradiction must be substantial and fundamental to the main issue in question before the Court. See UKPABI VS STATE (2003) 2 NWLR (PT 804) 343.
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The learned counsel for the Appellant further sought to make capital of the portion of the vexed judgment wherein the learned Trial Judge stated that PW1 admitted under cross-examination that his extra judicial statement differed from evidence in Court. The said admission was made on page 72 of the record of appeal thus:
Q: I also put it to you that your evidence in this Court contradicts your extra-judicial statement to the police.
A: After the incident, I was afraid what may happen to me and did not give detailed statement to the police.
At trial, learned counsel for the Appellant, failed to confront the said PW1 with his supposed contradictory statement. The correct procedure is to confront the witness with the earlier contradictory statement and have him react thereto. This was not done in this case and having failed to confront the witness with the said alleged contradictions the contentions of learned counsel with due respect to him, are untenable. See EGBOGHONOME VS STATE (1993) 7 NWLR (PT 306) 383 and UKPABI VS STATE (2003) 2 NWLR (PT 804) 343.
The point here is that the learned Trial Judge did not state that the
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two accounts were inconsistent and in fact accredited the testimony of this witness. That two accounts differed did not mean that they were inconsistent, especially as the Police witnesses, PW4, PW5 and PW6 corroborated various portions of the testimony of this witness, PW1. In a criminal trial, for any conflict or contradiction in the evidence of the prosecution witnesses to be fatal to the prosecution’s case, the conflict or contradiction must be substantial and fundamental to the main issue in question before the Court. See UKPABI VS STATE (supra) at 343.
The learned counsel for the Appellant in his bid to convince the Court that the Respondent’s case contained conflicts submitted thus:
Again there is no proof as to where the alleged corpse of the alleged victim was. One version of the prosecution’s case was that he was beaten and taken away. Another version said his body was butchered. Yet, the extra judicial statement of PW1 which was admitted in evidence on the application of defence counsel alleged that PW1 saw the body of the victim where it was kept covered with cloth.
Firstly, there was no account by any prosecution
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witness that the deceased was beaten and taken away. The three eye witnesses PW1, PW2 and PW3 all said that the deceased was beaten to death by his assailants. PW2 and PW3 added accounts of how the body was then taken away to the playground and butchered into pieces before being burnt. There was no conflict in the accounts. The third scenario put forward that the body of the victim was seen where it was kept represented what defence counsel unsuccessfully tried to establish at trial. Specifically on 4th April, 2014, in the course of the cross-examination of PW5, the record of appeal on pages 109 to 110 contains as follows:
2. Q: Do you know on Simeon Nwebonyi?
A: Yes
3. Q: He made a statement to you?
A: Yes.
4. Q: Can you recall Simeon Nwebonyi telling you that he went in the company of Policemen from Iziogo and Iboko and saw the body of the deceased kept and covered with cloth?
A: I can’t remember the content of that statement unless I see it and refresh my memory.
5. N/B: Counsel calls for the statement of Simeon Nwebonyi but it was not available owing to the recent transfers that saw the erstwhile Clerk of Court
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being transferred and he is yet to hand over to the new one.
Defence counsel applies for a date in the circumstance.
No objection.
NB: At this juncture, the statement was seen in the file and handed over to the Defence Counsel who requested the PW5 to read a portion of Simeon Nwebonyi statement which reads: “I saw that they have taken my brother’s corpse to the playground, I ran to Iboko Police Station and made a report. Iziogo sent more Policemen, about 12 in number to go with me…”
NB: Counsel withdraws his question No. 5
While learned counsel is at liberty to vigorously canvass the case of his client, it derogates from the duty of counsel as an officer in the Temple of Justice to distort facts. It is totally unacceptable practice.
The accepted evidence led by the Respondent as prosecution at trial, disclosed that the Appellant and his co-accused had a common intention to unlawfully kill the deceased who they found irksome, in the gruesome and barbaric manner they did. The law is that where such common intention had been exhibited, the role played by the various individuals was immaterial. See
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ALARAPE VS STATE (2001)5 NWLR (PT 705) 79 at 100-101 and 102 and AKINKUNMI VS STATE (1987) 1 NWLR (PT 52) 608.
The moment, the learned Trial Judge accepted the testimonies of PW1, PW2 and PW3 who gave eye-witness accounts of how the deceased was brutally killed, there was no mystery of how he died or who was responsible as to necessitate a recourse to the last seen doctrine. Equally unnecessary is any inference pursuant to Section 164 (1) of the Evidence Act (supra) as urged on us by the learned counsel for the Appellant.
That notwithstanding, I see no miscarriage of justice in this instance as the Appellant was, in my considered view, rightly convicted for the murder of the deceased.
From the accepted evidence, the said murder was carried out in a most brutal and gruesome manner and the body disposed of in a terribly heartless manner.
I therefore resolve all the three issues against the Appellant and in favour of the Respondent.
I find no merit in this appeal and I therefore dismiss it.
The conviction and sentence of the Appellant is hereby affirmed.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the draft of the judgment
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delivered by my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA. I agree with his conclusion that the appeal lacks merit and is hereby dismissed. The judgment of the lower Court is hereby affirmed.
ABUBAKAR SADIQ UMAR, J.C.A.: I agree and adopt as mine, the lead judgment of my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA. The facts and the law applicable have been exhaustively articulated by my noble lord in the lead judgment.
I join him in saying that this appeal is lacking in merit and same is hereby dismissed by me.
The conviction and sentence of the Appellant is hereby affirmed.
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Appearances:
Uzuegbu, Esq. For Appellant(s)
Mr. I. I. Alobu (Director of Public Prosecutions, Ebonyi State) with him, F.N. Nteoma, Esq., (Deputy Director), P.T. Allam, Esq.,(Legal Officer) and A.M. Kikiowo (Legal Officer) For Respondent(s)