AZUBUIKE TOM EHIRIODO v. THE STATE (2019)

AZUBUIKE TOM EHIRIODO v. THE STATE

(2019)LCN/13931(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 17th day of July, 2019

CA/OW/403C/2018

RATIO

CRIMINAL LAW AND PROCEDURE: WHETHER SUSPICION CAN LEAD TO A CONVICTION

And by law, suspicion, no matter how strong, cannot lie a conviction. See EMESONYE VS THE STATE (2016) LPELR ? 40549 CA; ONAFOWOKAN VS STATE (1987) 7SCNJ 1; OKORO VS STATE (1988) 12 SCNJ 191. This is because, every charge must be proved beyond reasonable doubt and where there is a lingering doubt, the same has to be resolved for the accused person. PER ITA GEORGE MBABA, J.C.A. 

CRIMINAL LAW AND PROCEDURE: MURDER: HOW TO PROVE MURDER
To prove a charge of murder, the law requires strict prove by the prosecution of the following:
1) Death of the deceased
2) The death resulted from the act/omission of the accused person
3) The accused person caused the death of the deceased intentionally or with requisite knowledge that death or grievous bodily harm was the probable consequence of his act/omission. See Sule Vs State (2019)19 NWLR (Pt.1169)33; Nkebisi Vs State (2010)5 NWLR (Pt.1184) 471; Mbang Vs State (2010) NWLR (Pt.1194)431; Okon Vs State (2014) LPELR ? 24018; Emesonye Vs State (2016) LPELR ? 40549 CA. PER PER ITA GEORGE MBABA, J.C.A. 

CRIMINAL LAW AND PROCEDURE: HOW TO ESTABLICH A CHARGE OF MURDER
A charge of murder maybe established by:
1) Production of positive and direct eye witness account of the killing, when it occurred. See Agu Vs State (2017) LPELR ? 41664 SC; Udor Vs The State (2014) LPELR ? 23064 (SC); Igabele Vs The State (2006) (2012) LPELR ? 1441 SC. And that is the best evidence.
2) By cogent circumstantial evidence which points, directly, unmistakably and conclusively at the accused person as the one from whom the guilt for the murder can be inferred See Nasiru Vs The State (1999)2 NWLR (Pt.589); (1999) LPELR ? 1945 SC; Chiokwe Vs The State (2005) NWLR (Pt.918)424 Obasi Vs The State (2014) LPELR 24013; Nasiru Vs The State (2017) LPELR ? 43917 CA.
3) By confessional statement of the accused person, adjudged voluntary, and even where it is retracted, the trial Court is satisfied that it accords with the other pieces of evidence before it. See Haruna Vs A.G. Fed. (2012) 2009 LRCN 70 (2012) 32 WRN 1; Blessing Vs FRN (2015) LPELR ? 24689 SC; Emesonye Vs The State (supra). PER ITA GEORGE MBABA, J.C.A. 

Before Their Lordships

RAPHAEL CHIKWE AGBO                     Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA      Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA                            Justice of The Court of Appeal of Nigeria

Between

AZUBUIKE TOM EHIRIODO                 Appellant(s)

 

AND

THE STATE                                          Respondent(s)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of Abia State High Court in Charge No.HIN/8C/2006, delivered on 22/5/2018 by Hon. Justice C.U. Okoroafor, whereof Appellant was convicted for offence of murder, together with other accused persons, and sentenced to death, by hanging.

Appellant was arraigned on an information, with two others, for murder, contrary to Section 319(1) of the Criminal Code, Cap 30 Vol. II, Laws of Eastern Nigeria, 1963 (as applicable to Abia State) on 30/5/2013. (See Page 44 of the Records). The charge was that Mr. Azubuike Tom Ehiiriodo, Ngozi Onyekwere and Francis Uche Azubuike, on the 1stday of November, 2005, at Amapu Umuosi in Okpuala Ngwa Judicial Division, murdered Mr. Emeka Okegbugwu. Appellant and each of the other accused had pleaded NOT GUILTY to the charge.

At the end of the trial, and after consideration of the evidence and the addresses of Counsel, the Trial Court found Appellant and the

The Respondent filed its Brief on 5/2/19 and distilled only three issues for the determination of the Appeal namely:
1) Whether the offence of murder was proved beyond reasonable doubt?
2) Whether there were contradictions in the case of the prosecution?
3) Whether there is any particular number of witnesses or any particular witness shall in any case be required for the proof of any fact?

The Respondent did not relate the issues to the grounds of Appeal. But Appellant filed a Reply Brief on 4/4/19 to contest the issues raised in the Respondent?s brief.

Arguing the Appeal on 18/6/19, Appellant?s Counsel, Dr. A.C.B. Agbazure, on issue one, said that by law, where there are material contradictions in the evidence of the prosecution witnesses, it is fatal to the case of the prosecution, once such contradictions go to the root of the substance of the case. He relied on the case of Agbo Vs State (2006) 5 LRCNCC 86; Yaki Vs State (2009) 7 LRCNCC 36; Sele Vs State (1993)1 SCNJ (Pt.1) 15.

On the contradiction, Counsel said that PW1 had testified that after the deceased was shot, ?He started shouting and ? saying that the accused persons have killed him? and he ran to inform one Umuine Amuta, the Village head? (page 50 of the Records); that the PW1 confirmed that some Villagers then took the deceased to the Police Station who gave them instruction to take him to the General Hospital, but he died on the way to the Hospital.

On the contrary, Counsel said the PW3 in her evidence, said she was called, that the brother, had been shot and when she arrived the deceased told her the 1st and 2nd accused have actualized their threat; she lifted the brother and took him to where the bullets were to be extracted, but the bullet extractor referred them to the Police, while the Police advise them to take him to Chinonyerem Hospital.

Counsel said the above two pieces of evidence were contradictory; that none of them saw when the deceased was shot and by who, but they hood-winked the trial Court to believe there was a dying declaration by the deceased; he said that such contradictions are sufficient to raise doubt as to the guilt of the accused. He relied on the case of the Iko Vs State (2002) 3 LRCNCCC 11; Ogoala Vs State (1991)2 NWLR (Pt.175) 509.

Counsel also referred us to Exhibit A (the statement of PW1 to the Police, made at the earliest opportunity on 1/11/2005) to point out contradictions with his evidence in Court. Counsel compared Exhibit A with a further statement made by PW1 to the Police on 18/11/05 (page 12 of the Records) which Counsel said was made after, PW1 had been schooled to specifically mention Appellant and his co-accused, that ?Azubuike Ehiriodo, Ngozi Onyekwere and their family have Fulfilled their threat on him?; that, finally, on page 50 of the Records, PW1 said the deceased was shouting ?That the accused persons have killed him.? Counsel said that evidence of PW1, the star witness, was not only inconsistent and unreliable, but also totally and substantially in contrast with his statement to the Police. He referred us to Okafor Vs State (2009) 7 LRCNCC 220; Agwu Vs State 1965 NWLR 18.

Counsel drew our attention to the statement of the wife of the deceased to the Police (Mrs. Ihuoma Emeka) (on page 7 of the Records) who said:
?Two boys came in with two guns and fired my husband. I don?t know them. They were just on canvas, short nicker (sic) and T-Shirt?

Counsel said Mrs. Ihuoma Emeka was the eye witness and had contact with the killers, who also beat her up, and yet, she was not called to give evidence. Counsel said that the above evidence agreed with Pw1?s first statement in Exhibit A, that they were hired killers. He urged us to apply the statement of the deceased?s wife; that the Court is empowered to have a look at documents forming part of its records, in arriving at a decision in a case. He relied on Agbaisi Vs Ebikorefe (1997)4 NWLR (Pt.502)63, Agbahomovo Vs Eduyegbe (1999)3 NWLR (Pt.594)170. Salisu Vs Mobolaji (2017) All FWLR (Pt.874) 1785.

He urged us to resolve the issue for Appellant, relying on Omoregie Vs State (2017) LPELR SC 334 ? 2012 and State Vs Azeez (2008)14 NWLR (Pt.1108) 439 on effect of doubt thrown up in the evidence of the prosecution.

On issue 2, whether the failure to call the wife of the deceased to testify was fatal to the prosecution?s case, Counsel answered in the affirmative, saying the woman was the only eye witness of what happened that led to the death of the husband; he said that the woman knew the Appellant and his co-accused very well, being members of the same Village, but on 2/11/2005, a day after the incident, she made the statement to the Police saying that ?two boys came in with two guns and fire my husband. I don?t know them.? (Page 7 of the Records).

Counsel said failure to call the sole eye witness to testify was fatal; that her evidence was crucial, as all other witnesses only speculated on what really happened. He relied on Akalonu Vs State (2005) 4 LRCNCC 123; Olalele Vs State (2009) 7 LRCNCC 76.

Counsel added that failure to call the said witness amounted to withholding evidence and urged us to presume the Section 167 (d) of the Evidence Act 2011, that if the evidence of Mrs. Ihuoma Emeka had been called, it would have been unfavourable to the Prosecution. He relied on the State Vs Olashehu (2011) LPELR ? 8252 SC Mozie Vs Mbamalu (2006)15 NWLR (Pt.1003) 466. He also relied on the case of Abdullahi Vs State (2010)8 LRCNCC 32 (SC), to the effect that:
where a witness failed to mention the name of an accused whom he knew before the commission of a crime, to the Police at the earliest opportunity, that would detract from whatever credibility the trial Court may wish to ascribe to his evidence

Counsel, added that eye witness evidence is the best evidence in criminal trial, relying on Shurumo Vs State (2012)10 LRCNCC 1.

On issue 3, whether the trial Court was right to ground its decision on speculation, extraneous and unconnected consideration, not borne out of evidence, Counsel answered in the negative. Counsel referred us to the alleged speculative and extraneous considerations on pages 155 to 156 of the Records, where the trial Court raised some pertinent questions:
a) Why did the 1st accused summon the deceased and his brother (PW1) before Nnemiri Ihie Shrine to take Oath after the Courts had decided the land dispute against them; a finding which his father never did while representing the family during his life time?
b) Why did the accused persons run away, immediately after the incident.
c) Why did they not attend the summon of the elders of the Community after the report of their threat to kill the deceased and PW1 was made to the elders and after the death of the deceased?
d) Could it be that the 1st accused actually hired killers to way-lay them?
e) Was it a coincidence or what that the deceased was killed seven days after the threat to kill him was made by PW2 and the elders and while waiting to report to the Police? What was the motive of the 1st Accused dragging the deceased to the powerful Nnemiri Shrine, where he was caused to take oath? Probably for him to swear and die. Can it be said that the accused persons are not happy about the survival of the deceased, after one year of oath taking?
Although proof of motive on the part of the accused on a charge of murder is not a sine quanon to his conviction for the offence, if evidence of motive is available, it is not only a relevant fact, but also admissible, under S.5 of the Evidence Act

Counsel argued that, with the above, the trial Court went beyond his province, as the above posers were not relevant to the charge and were not founded on established evidence. Thus, he said the trial Court beclouded its thought and acted on sentiments to reach its conclusion, against the principles of adjudication. He relied on State Vs John (2013) 222 LRCN 1.

On issue 4, whether the trial Court was right to hold that the deceased made a dying declaration, Counsel answered in the negative. He submitted that the deceased did not make a dying declaration, and relied on Section 40 of the Evidence Act, 2011, on the admissibility of dying declaration and what it is, and when it is applicable. He relied on Dada Vs State (2018) All FWLR (Pt.920) 77. He added that it was the duty of the Prosecution to State the exact words alleged as dying declaration, and not to shift to the defence to prove that it was not stated. Counsel asserted that nothing in the evidence of PW1 and PW3 established that a dying declaration was made by the deceased. He relied on Musa Vs State (2017) LPELR ? CA/K/73/C/2016; Hausa Vs State (1994)6 NWLR (Pt.350) 28, on the strict proof of the exact words of the deceased in the dying declaration. Counsel added that such words must also proceed from the dying man while in a State of apprehension of imminent death. Olabode Vs State (2009) 174 LRCN 86; Okokor Vs State (1967) NMLR 185.

On issue 5, whether the trial Court was right not to have made use of the statement of the sole witness to act leading to the charge, which was already part of the records of the Court, Counsel answered in the negative and repeated the arguments earlier made under the issue 2, on the failure to call the wife of the deceased to testify. He further relied on the cases of Obidoa Vs Marchie (2010) LPELR ? 4668 CA; Oyewole Vs Akande (2009) 15 NWLR (Pt.1163) 119 at 148; Nwora Vs Nwabueze (2011) 48 NSCQR 251, on the power of the Court to look at its records and use the documents therein, while writing its ruling, or to take judicial notice of all the processes filed before it and to use the processes to come to a just decision.
?
Counsel also submitted that any doubt in the trial of an accused must be resolved in favour of the accused person. Omoregie Vs State (2017) LPELR ? SC 334 ? 2012; State Vs Azeez (2008) 14 NWLR (Pt.1108) 439 at 483.

There is no indication in the Appellant?s brief that he argued the Issue 6.
He urged us to resolve the issues for Appellant.

The Respondent?s Counsel, Mike Ibeneme Esq, (ACSC ? Abia), on whether the offence of murder was proved beyond reasonable doubt, answered in the affirmative. He stated the ingredients of offence of murder:
a) That the death occurred;
b) The Accused was the murderer;
c) The Accused had the intention to commit the murder or to do dangerous bodily harm. He relied on Uguru Vs State (2002)9 NWLR (Pt.771) 90; Gira Vs State (1996)4 NWLR (Pt.443) 375

Counsel said the above ingredients had been established by the prosecution.

On issue 2, whether there were contradictions in the case of the Prosecution, Counsel answered in the negative. He said that the evidences, portrayed by the defence as constituting contradictory evidence, are not contradictions, within the meaning of Sale Dagayya Vs The State (2006)134 LRCN 397; that not every discrepancy or inconsistency in the Prosecution?s case will vitiate a decision; that for discrepancy or inconsistency to vitiate a decision, it must be material and substantial, to the extent that it affects the crux or fundamental issue to be determined by the Court. He relied on Bello Shurumo Vs State (2010)16 NWLR (Pt.1218) 65. Counsel said that in this case, no material contradiction has been established in the evidence by the Prosecution; that the only contention by Appellants is that the deceased, in his dying declaration, contradicted himself. He said there is no evidence that PW1 and PW3 did not correctly state the actual words of the deceased in the dying declaration.

On issue 3, whether a particular number of witnesses or any particular witness is required to give evidence in proof of any fact, Counsel answered in the negative. He cited Section 167 (d) of the Evidence Act 2011, saying the same is quite clear on the point.
?
Counsel said the prosecution is not under obligation to call a host of witnesses or a particular witness, if it can establish or prove its case otherwise; that what is required is available and sufficiency of evidence and not wanton or a number of witnesses. He relied on Akpan Vs State (1994)9 NWLR (Pt. 368) 347; Abogede Vs State (1996)5 NWLR (Pt.448).

He also relied on Onwujuba Vs Obienu (1991)4 NWLR (Pt.183)16, to say that failure to call witness is not the same as failure to call evidence, pursuant to Section 167 (d) of the Evidence Act, 2011, thus failure to call the wife of the deceased to testify is not and does not amount to withholding evidence. He urged to resolve the issues against Appellant and to dismiss the Appeal.

The Reply Brief by the Appellant had challenged the Respondent?s brief for having been filed out of time and without any application to regularize same, making the said Respondent?s brief incompetent. The Respondent had acknowledged this defect and urged us orally, to deem the said Respondent?s brief validly filed.

I think, this being a criminal trial, unnecessary technicalities should be waived or de-emphasized to allow for the determination of the Appeal on the merits. To that extent, the failure to file the Respondents brief, within time, is being treated as an irregularity, not capable of vitiating it, especially as the Appellant had acknowledged the defect and still went on to join issues thereon, by replying to issues therein on points of law (even after arguing it was incompetent). I hereby deem the said Respondent?s brief, filed on 5/2/19, as properly filed and before this Court.

I think the other issues raised in the Reply brief amount to further argument or rehash of the Appellant?s brief, which is not what Reply brief is about. Aduba & Ors Vs Aduba (2018) LPELR ? 45756 (CA); Ecobank Plc Vs Honeywell Flour Mills Plc (2018) LPELR ? 45124 (SC).

RESOLUTION OF THE ISSUES
I think the six (6) Issues distilled by the Appellant can be streamlined into 3 (three), namely:
1) Whether the Prosecution had proved the guilt of the appellant beyond reasonable doubt, going by the evidence adduced, especially in the face conflicts in the account of the witnesses?
2) Whether the failure to call the sole eye witness, Mrs. Ihuoma Emeka (the wife of the deceased), to testify was fatal to the Prosecution?s case and whether the Court can look at and apply her statement to the Police, made part of the Information proof of evidence in the Records before the Court?
3) Whether the deceased had made any dying declaration in this case?

I shall take the three issues, together.
A brief facts of this case at the lower Court shows that the deceased was shot and fatally wounded and he died on the way to hospital on 1/11/2005. The assailants, whom the PW1 first identified as hired killers, in the statement he made to the Police on 7/11/05, at the earliest opportunity (Exhibit A), shot him (deceased). PW1 later, on 18/11/05, made another statement and mentioned the Appellant and the other accused persons as those who killed the deceased. He claimed that the deceased had shouted, while coming to his (PW1) house, ?that the accused persons have killed him?, upon being attacked by the assailants. PW3, the deceased sister, said when she got to meet the brother, before he died, he told her that the ?1st and 2nd accused have actualized their threat?.

But by the statement of the wife of the deceased, on page 7 of the Records of Appeal, her husband (the deceased) was shot by assailants, 2 boys, she did not know, she said:

About 5 days (ago) my husband came home from Nnemiri Ihie, a juju Priest in Ihie where Azubuike Tom and others surmoned (sic) him on a land dispute. Then the juju Priest told them to come on the 26/10/2005, but Nnaah Irondi came and inform the Amala and the whole Village of Amano that Azubuike Tom told him that he will gun down Emeka, being my husband and Nnaah Irondi. So they postponed the movement till 1/11/2005. They went to the juju Priest on 1/11/2005 and the case was resolved in my husband favour. The juju Priest instructed my husband to consult an oracle before coming to him on the final judgment. As they came back, my husband was narrating to me how they went there, as my husband was narrating the story to me, two boys came in with two guns and fired my husband. I don?t know them. They were just on canvas, short nicker (sic) and T-shirt. After the firing, I started shouting. I then went to Nnaah Irondi to report the incident to him, but he was not in because those boys are looking for him too. They made away with the sum of N55,000.00, being the money that somebody deposited for a bag of stock fish. They beat me up and wounded me on the legs. The land dispute was between my husband and the whole Tom?s Family.? (Underlining mine)

She made further statements to the Police on 16/11/2005 or 18/11/05, but, surprisingly, she was not called to testify at the trial. Evidence further showed that land disputes between the deceased and the family of the Appellant was at the centre of this accusation. The defence had denied the charge and had argued that the whole case of the Prosecution was based on suspicion; that the only eye witness in the case, Mrs. Ihuoma Emeka, the wife of the deceased, did not give evidence; that the Prosecution could not even base its case on circumstantial evidence, as there were no circumstances that could, irresistibly, point to the fact that the accused persons killed the deceased.

The trial Court convicted the Appellant and the other accused, saying:
?The record and evidence before this Court bear the fact that the accused person?s family and that of the deceased family had a protracted land dispute, which eventually was adjudged in favour of the deceased family. That despite the judgment against the accused, the 1st accused, who is the representative of the family of other accused, summoned the deceased and PW1 to a shrine called Nnemiri Ihie, where they were caused to take an oath over the same land and was awarded to them by competent Courts. That what the 1st accused did was never done by his father during his life time. That when the accused saw that the deceased and his brother (PW1) survived the Oath, they threatened to kill them with gun. The said threat was reported to the traditional ruler of the community of bot (sic) the deceased and the accused, PW2 as well as the elders of the community. That one week after the threat was issued to the deceased and PW1, the deceased was shot in his house and the injury sustained led to his death, while he was being taken to the hospital. It is also that the accused persons ran away after the incident and even when the gong was sounded, other Villagers answered the summon, but none of the accused persons was in attendance (Page 167 of the Records of Appeal).

The trial Court further said:
I placed myself also at the guard of the unhappy relationship and the animosity that existed between the accused and the deceased; PW2 corroborated the evidence of PW1 as to the fact of the threat issued to the deceased, that by the accused that since the deity of Nnemiri Ihie shrine did not kill him, let us see whether gun cannot kill him and a week after, he was shot dead. It is the law that evidence in corroboration must be an independent testimony, direct or circumstantial, which confirms in some material particular, not only that an offence has been committed, but that the accused person has committed it. Corroboration need not consist of direct evidence that the accused person committed the offence, nor need it amount to confirmation of the whole account given in some respect material to the charge. Akinbami Vs State (2017) A FWLR (Pt.897) 2018 at 2036. (Pages 167 to 165 of the Records of Appeal).

With due respect to the learned trial Judge, I think the above findings of the trial Court, which formed the basis for the conviction of the Appellant, were strange inferences by the trial Court, completely, outside the charge and the evidence, relating to the charge. And they were incapable of founding the conviction of the Appellant for offence of murder. The findings were founded on speculation and insinuations, deduced by the trial Court, founded on the sore relationship between the Appellant?s family and deceased (and his family) relating to land dispute, which resulted in oath taking before a juju shrine, and alleged threats to the life of the deceased, and PW1 by the Appellant, a week before the death of the deceased.
It is quite sad that the learned trial Court allowed itself to be teleguided by such sentiments, speculation and extraneous considerations, completely outside the sphere of the evidence needed to establish offence of murder, to find the Appellant guilty and sentence him (and the other, accused) to death by hanging! The Court is required to be very circumspect, especially where the liberty or life of an accused person is at stake, in coming to its conclusion of finding of guilt of an accused person, especially on the basis of circumstantial evidence. See the case of Theophilus Ajakaiye Vs The State (2014) LPELR ? 24098 CA; (2015)5 WRN 64, where it was held:
A Court is never allowed to make a case for any of the parties before it different from what a party presents to the Court Ayoade Vs Spring Bank Plc (2014)4 NWLR (Pt.1396)93 at128? The demand for a judge to be circumspect and act within the confines of the strict rules of law in the appraisal and application of the evidence and the law to reach his conclusion, becomes much more in a criminal trial whereof the liberty and/or life of the Accused person is at stake, and a little error or mistake can be fatal. I think where an Accused person, in a murder case, is tried and convicted, wrongly, due to carelessness or mischief of the trial judge, it translates to a judicial murder, which the judge may stand accountable, especially where there is no judicial process to review and correct the error? Such concern or awareness should always play on the mind of a judge, as he sits in judgment over his fellow mortal.? Garba Vs State (2011)14 NWLR (Pt.1266)98 at 124.
And by law, suspicion, no matter how strong, cannot lie a conviction. See EMESONYE VS THE STATE (2016) LPELR ? 40549 CA; ONAFOWOKAN VS STATE (1987) 7SCNJ 1; OKORO VS STATE (1988) 12 SCNJ 191. This is because, every charge must be proved beyond reasonable doubt and where there is a lingering doubt, the same

has to be resolved for the accused person.
To prove a charge of murder, the law requires strict prove by the prosecution of the following:
1) Death of the deceased
2) The death resulted from the act/omission of the accused person
3) The accused person caused the death of the deceased intentionally or with requisite knowledge that death or grievous bodily harm was the probable consequence of his act/omission. See Sule Vs State (2019)19 NWLR (Pt.1169)33; Nkebisi Vs State (2010)5 NWLR (Pt.1184) 471; Mbang Vs State (2010) NWLR (Pt.1194)431; Okon Vs State (2014) LPELR ? 24018; Emesonye Vs State (2016) LPELR ? 40549 CA.
A charge of murder maybe established by:
1) Production of positive and direct eye witness account of the killing, when it occurred. See Agu Vs State (2017) LPELR ? 41664 SC; Udor Vs The State (2014) LPELR ? 23064 (SC); Igabele Vs The State (2006) (2012) LPELR ? 1441 SC. And that is the best evidence.
2) By cogent circumstantial evidence which points, directly, unmistakably and conclusively at the accused person as the one from whom the guilt for the murder can be inferred See

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Nasiru Vs The State (1999)2 NWLR (Pt.589); (1999) LPELR ? 1945 SC; Chiokwe Vs The State (2005) NWLR (Pt.918)424 Obasi Vs The State (2014) LPELR 24013; Nasiru Vs The State (2017) LPELR ? 43917 CA.
3) By confessional statement of the accused person, adjudged voluntary, and even where it is retracted, the trial Court is satisfied that it accords with the other pieces of evidence before it. See Haruna Vs A.G. Fed. (2012) 2009 LRCN 70 (2012) 32 WRN 1; Blessing Vs FRN (2015) LPELR ? 24689 SC; Emesonye Vs The State (supra).
The trial Court in this case, in my view, could not locate its decision within any of the three known ways of establishing the offence of murder, as stated or analyzed above. The evidence of the only eye witness, Mrs. Ihuoma Emeka, the deceased wife who saw when the deceased was shot, was, surprisingly, not called/used even after her statements to the Police were generously disclosed in the Records before the Court. See pages 7 ? 9 of the Records of Appeal. As part of her statement on page 7 of the Records, she said:
as my husband was narrating the story to me, two boys came in with two guns and

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fired my husband. I don?t know them
The statement was made at the earliest opportunity, on 7/11/05. It is obvious she did not know the assailants, but could describe and described their wears. Who were the two boys?
It is difficult to understand why the prosecution did not call the evidence of the said witness, who saw what happened, when the deceased was shot and saw the assailants. I think failure to produce the vital eye witness to give evidence at the trial can only mean that the Respondent (Prosecution) had something to hide and were not comfortable to call her to testify. They (Prosecution) rather depended on PW1, PW2 and PW3, who came to Court to speculate on the incident, and opted to use the opportunity to implicate their immediate local enemies or opponents, those who recently had land dispute and altercation with the deceased, and they labored to give evidence to fix the Appellant at the scene of crime, even when the eye witness, who saw the shooting had said she saw the two boys who shot the husband, but did not know them!
?Appellant and other accused are of the same community with the wife of the deceased and

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PW1 ? PW3, and so the deceased?s wife had good knowledge of the accused persons, including the Appellant, before the date of the incident! She could not have said she did not know the two boys, if she knew them. And if the Appellant, whom she knew very well, was one of them, she would not have hesitated to name him! I think the Prosecution was only interested in framing up the Appellant for the offence because of their differences ? land dispute between Appellant?s family and the deceased family! Thus, failure to call the deceased wife, was ominous and intentional, as cover up, in my view. I presume the Section 167 (d) of the Evidence Act 2011 against the Prosecution, in the circumstances. In the case of Abdullahi Vs State (2010) 8 LRCNCC 32 (SC) it was held:
where a witness failed to mention the name of an accused whom he knew before the commission of a crime, to the Police at the earliest opportunity, that would detract from whatever credibility the trial Court may wish to ascribe to his evidence
See also Jimoh Vs State (2012) LPELR ? 14834 CA; Okiemute Vs State (2016) LPELR ? 40639

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(SC), on the point.
Even the PW1 had stated in Exhibit A (his first statement to the Police) that the deceased was shot by hired killers. Who hired them? That evidence was not forthcoming at the trial, as the prosecution went into conjecturing and speculating and got the trial Court to buy into their suggestion of the enemy of the deceased or opponent in the land dispute, and run with it.
Meanwhile, part of the statement of the wife of the deceased, Mrs. Ihuoma Emeka, on page 7 of the Records, had stated that she went to the house of Nnaah Irondi (PW1), to report the incident to him, but he was not in, because those boys were also looking for him! That, in my view, raised serious conflicting questions about the evidence of the PW1!
?I think that was very wrong and callous, considering the implication of convicting Appellant in such circumstances. The trial Court had had the benefit of the address of the defence Counsel, who told the Court that the evidence was founded on speculation. The trial Court rather escalated that speculation by implying that Appellant and the other accused persons killed the deceased, because of the land dispute; that

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because the deceased did not die by the oath of the juju priest?s (Nnemiri Ihie Shrine) power, they resorted to use of gun! Of course, those evidence came from the trial Court, not from any witness! See Ajakaiye Vs The State (supra) which bars the Court from resorting to evidence from its imagination to decide a case. See also Emeto Vs The State (2018) LPELR ? 44990 CA and Suberu Vs State (2010) LPELR ? 3129 (SC):
?A Judge should not descend into the arena. A Court has no duty to bridge the yawning gap in the case of a party. This is more so since this is a criminal matter Fabiyi JSC. See also Egbebu Vs IGP &Ors (2016) LPELR ? 40224 CA.

It is true that a party is not under any obligation to call a given number of witnesses, or any particular witness, to succeed in his case. But where the prosecution fails to call a vital witness, like an eye witness, in a criminal trial, when one is available, the case is likely to fail. Ugochukwu Ngorka Vs A.G. Imo State (2014) LPELR ? 22532 (CA); Nwaeze Vs State (1996)2 NWLR (Pt.425)4; Adamu Vs State (2019) LPELR 46902 SC; Alake Vs The State (1992) LPELR

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? 403 SC; State Vs Nnolim (1994)5 NWLR (Pt.345) 394; Smart Vs The State (2016) LPELR ? 40728 (SC).

I do not also think the trial Court was right to hold that the deceased had made a dying declaration in this case. Section 40 of the Evidence Act, 2011, provides what constitutes a dying declaration, and when the same can apply in a criminal trial. In the case of Sule Vs The State (2014) LPELR ? 24044 CA, this Court held, relying on Akpan Vs The State (1992) NWLR (Pt.248) (SC).
Thus:
?It is well established in our law that a statement made by a person in imminent fear of death, and believing at the time it is made that he was going to die is admissible as a dying declaration. See Akinfe Vs State (1988)3 NWLR (Pt.83) 729; Okokor Vs State (1967) NWLR 189? strict proof of the actual words used by the deceased is generally required in proof of the dying declaration to avoid any uncertainties.?
?The Respondent cannot claim there was a dying declaration by the deceased in this case, when the PW1 and PW3 were stating different things as being said as the dying declaration by the deceased, and none of them was a

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verifiable direct statement by the deceased, directed at the Appellant.
PW1 in his statement (Exhibit A) said the deceased shouted:
?Nnaah, Nnnaah, they have killed me Page 10 of the Records.
Who were the ?they In his evidence in Court, PW1 said:
?He started shouting and was coming to my part of the compound, saying that the accused persons have killed him (Page 50 of the Records)
But PW3, in her evidence, said the deceased told her that the ?1st and 2nd accused have actualized their threat.? (Page 51 of the Records)
Such cannot pass for dying declaration by the standard of the law and evidence.

I see merit in this appeal and therefore resolve the issues for the Appellant and allow the appeal.

I set aside the decision of the trial Court and enter a verdict of not guilty for the Appellant and discharge and acquit him of the charge.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree

?THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree

?

?

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Appearances:

DR. ACB OGBAZUERE, with him, DAVID IRO ESQ.For Appellant(s)

MIKE IBENEME ESQ (A.C.S.C. ABIA)For Respondent(s)

 

Appearances

DR. ACB OGBAZUERE, with him, DAVID IRO ESQ.For Appellant

 

AND

MIKE IBENEME ESQ (A.C.S.C. ABIA)For Respondent