CHIDI EDWIN v. THE STATE (2014)

CHIDI EDWIN v. THE STATE

(2014)LCN/7611(CA)

In The Court of Appeal of Nigeria

On Monday, the 8th day of December, 2014

CA/AK/256C/2013

RATIO

CRIMINAL LAW: THE OFFENCE OF MURDER; WHAT THE PROSECUTION IS OBLIGED TO PROVE

To prove the offence of murder as in the case at hand contrary to Section 316 and punishable under section 319 of the Criminal Code cap. 30., Vol. 12 Laws of Ondo State of Nigeria, 1978, the burden is on the prosecution to prove his case beyond reasonable doubt. It is trite that in a charge of murder, the prosecution is obliged to prove that:
a. The deceased died;
b. The death of the deceased was caused by the accused; and
c. The act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.
See the cases of Madu V State (2012) 15 NWLR (Pt. 1324) 405, 443; Idemudia v State (2001) FWLR (Pt.55) 549, 564 (1999) 7 NWLR (Pt. 610) 202; Akpan V State (2001) FWLR (Pt. 56) 735.
In the case of Madu V State (supra) the Supreme Court provided further insights into the nature of the duty on the prosecution. Ariwoola JSC opined that:
“… In a murder charge, prosecution owes it a duty to discharge, by proving the death of the victim, responsibility of the accused by act or omission, intentional act or omission of the accused with knowledge that it could cause grievous bodily harm or death. The prosecution must prove that the act or omission caused death but not it could have caused death.”
The courts have taken the view that the above ingredients must be co-incident in the sense that the three conditions must co-exist. The effect is that when one of these Trinitarian ingredients is absent, the prosecution would not have discharged its duty. See Obade V State (1991) 6 NWLR (Pt. 198) 435, 456. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

PRACTICE AND PROCEDURE: CHARGE; WHEN SHALL AN OBJECTION TO A CHARGE BE TAKEN

This is because, the law is trite that any objection to a charge for any formal defect on the fact on the face thereof, shall be taken immediately after the charge has been read over to the accused person and not later. See Agbo v The State (2006) 1 SC (pt. II) 73; Bamaiyi v the State (2006) 12 NWLR (Pt. 994) 221; Shehu v State (2010) 2 – 3 SC (Pt.1). per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

PRACTICE AND PROCEDURE: ACQUIESCENCE TO AN IRREGULAR PROCEDURE; WHETHER AN ACCUSED PERSON WHO ACQUIESCED TO AN IRREGULAR PROCEDURE OF HIS TRIAL, CANNOT COMPLAIN ABOUT THE IRREGULARITY ON APPEAL
It is settled that an accused person who acquiesced to an irregular procedure of his trial, cannot complain about the irregularity on appeal, if it did not lead to miscarriage of justice. See Ndukwe V LPDC (2007) 5 NWLR (Pt. 1026) 1 at 52 – 53. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

PRACTICE AND PROCEDURE: ALLOCUTUS; WHETHER ANY EXPLANATION GIVEN BY AN ACCUSED PERSON IN ALLOCUTUS, IF ACCEPTED AT ALL, CAN ONLY GO TO MITIGATE SENTENCE AND CANNOT AVAIL HIM AS A DEFENCE TO THE CHARGE AND THE EFFECT OF THE FAILURE TO ASK AN ACCUSED PERSON TO PLEAD ALLOCUTUS

I disagree with the learned Counsel for the Appellant on the assertion that the Appellant’s right of fair hearing has been violated by not according him the opportunity of allocutus and that allocutus is a facility for defence. This is because, allocutus cannot avail an Accused person/Appellant as a defence to the case. In the case of James Ogbeide V Commissioner of Police (1964) All NLR page 599. The court held that any explanation given by an accused person in allocutus, if accepted at all, can only go to mitigate sentence and can not avail him as a defence to the charge.
I agree, however, with the Learned Counsel for the Respondent that the failure to ask an accused person to plead allocutus has no effect whatsoever on the validity of the proceedings.
The provisions of Section 36 (6) (b) of the Constitution referred and relied by the Appellant Counsel is irrelevant and a misconception of the Section as it does not provides for allocutus as a facility for defence and the person referred therein is an accused person who is charged with criminal offence but not who has been convicted.
Furthermore, Section 247 of the Criminal Procedure Law of Ondo State is instructive, it provides thus:
“If the court convicts the accused person or if he pleads guilty, it shall be the duty of the Registrar to ask the accused whether he has anything to say why sentence should not be passed on him according to Law, but the omission of the Registrar so to ask him or his being so asked by the judge or magistrate instead of the Registrar SHALL have no effect on the validity of the proceedings”. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

CRIMINAL LAW: THE DEFENCE OF ALIBI; WHAT IS THE DEFENCE OF ALIBI

Alibi is a defence which seeks to persuade the court that the accused person could not possibly be at the scene of the crime as he was somewhere else at a place where most probably there were people who could testify that at the time of the alleged incident or act he was not at the scene of the crime. See Nwaturuocha V State (2011) 6 NWLR (pt 242) 170; Sowemimo v State (2004) 11 NWLR (Pt.885) 515; Aiguoreghian V State (2004) 3 NWLR (Pt. 960). Alibi means “elsewhere” it is the duty of an accused person who pleads it to furnish sufficient particulars. An accused person must not raise the defence of alibi at large. He must give adequate particulars of his whereabout at the time of the commission of the offence to assist the police to make a meaningful investigation of the alibi. See Ayan V State (2013) 15 NWLR (pt. 1376) 34. It is after this that the prosecution can disprove the plea of alibi. Where prosecution has failed to investigate this, the accused person is likely to be acquitted. See Gashi V The State (1965) 1 NWLR 33. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.

Before Their Lordships

MOJEED ADEKUNLE OWOADEJustice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMAJustice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYIJustice of The Court of Appeal of Nigeria

Between

CHIDI EDWINAppellant(s)

AND

THE STATERespondent(s)

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. O. D. Akeredolu J. Sitting at Akure Judicial Division of Ondo State High Court, delivered on 17th July, 2013 in charge No. AK/23c/2012.

At the trial court, the Appellant herein was charged with the murder of one Happiness Ndubueze by striking her with matchete on or about the 28th day of April, 2011 at Wasimi Via Bolorunduro, in the Ondo Judicial Division contrary to Section 316 and punishable under Section 319 of the Criminal Code cap 11, Laws of Ondo State, 1978.

The case for the prosecution (herein the Respondent) is that the accused person (herein the Appellant) on or about the 28th April, 2011 murdered one Happiness Ndubueze by striking her with matchete. The Appellant on his part denied doing same.

In proof of its case, the prosecution called two witnesses and tendered Exhibits. While the Appellant alone testified in his defence. It was the case of the prosecution that the Appellant matcheted the deceased with cutlass to cut her leg, hand and back several times when she came out from where she eased herself at a nearby camp at Wasimi until when he saw that the deceased fell down in the pool of her blood and could not talk he took to his heel into the bush and left her there. The deceased was later taken to Hospital by a police officer and died after some days at the Hospital as a result of the several matchete cuts inflicted on her by the Appellant.

The Appellant, on his part, denied doing same. He claimed that on the said day, he was coming from a farm given to him by one Femi Babatunde to brush at about 7am and left the farm about 3p.m, in other words, he was not at the locus criminis and could not have been responsible for the death of the deceased. In a considered judgment delivered on the 17th July, 2013 the learned trial judge found the Appellant guilty of murder as charged and accordingly sentenced him to death by hanging.

Being dissatisfied with his conviction and sentence to death, the Appellant has appealed vide his Notice of Appeal dated 22/7/2013 and filed on the 12th day of December, 2013.

The Appellant, through his Counsel filed an Amended Notice of Appeal dated 24/1/2014 and filed on 31/1/2014 containing five (5) grounds of appeal from which three (3) issues were distilled for the determination of this appeal, to wit:

1. Whether in view of the evidence led at the trial by the parties, the prosecution proved its case against the Appellant beyond reasonable doubt. (Grounds 3 and 5 of the Amended Notice of Appeal).
2. Whether in view of the Appellant’s right to fair hearing, the trial court was right in proceeding to sentence the Appellant to death after conviction without affording him right of allocutus.
(Ground 4 of the Amended Notice of Appeal).
3. Whether the learned trial judge in his judgment properly evaluated the evidence led and defence put up before reaching his decision to convict the Appellant of the offence of murder and thereafter sentenced him to death by hanging. (Grounds 1 and 2 of the Amended Notice of Appeal).

On the part of the Respondent, Learned Counsel formulated the following three (3) issues for the determination of this appeal:

1. Whether in view of the evidence led at the trial by the parties, the prosecution proved its case against the Appellant beyond reasonable doubt.
2. Whether in view of the Appellant’s right to fair hearing, the trial court was right in proceeding to sentence the Appellant to death after conviction without affording him right of allocutus,
3. Whether the learned trial judge in his judgment properly evaluated the evidence adduced and defence put up by the accused before convicting the Appellant of the offence of murder and thereafter sentencing to death by hanging.

I have looked at the issues distilled by both Counsel and I am of the view that inspite of their similarities, that those raised by the Counsel for the Appellant would do justice to this appeal. I am therefore adopting the issues as raised by the Appellant for the determination of the appeal.

ARGUMENT ON ISSUE NUMBER ONE (1)

Whether in view of the evidence at the trial by the parties, the prosecution proved its case against the Appellant beyond reasonable doubt. (Ground 3 and of the Amended Notice of Appeal)

Learned Counsel for the Appellant avers that this issue arises from Grounds 3 and 5 of the Amended Notice of Appeal filed on the 31st day of January, 2014.

Learned Counsel for the Appellant submits that one basic fact from the constitution, and which is a fundamental guiding principle for the conduct of criminal trial, in Nigeria is the presumption of innocence of an accused person until his guilt is proved, and the effect of the presumption is that the duty or burden of proof lies on the Respondent. He referred to Section 36 (5) of the Constitution, Sections 138 (1), (2) and (3) of the Evidence Act Cap E 12 Laws of the Federation 2004 and Section 135 (1) (2) and (3) of the Evidence Act, 2011 and the cases of Ahmed V The State NSCQLR Vol. 8 (2001) page 273 at 292 and 307; Adekoya v The State NSCQLR vol. 49 (2012) page 1119 at 1148 – 1149.

Appellant’s Counsel contended that, although the prosecution is not bound to call a particular witness in order to discharge the burden of proof, for him to secure conviction but where exists a vital point as in the instant case, and there are witnesses whose evidence would settle that one way or the other, these witnesses ought to be called. He referred to the cases of The State V Fatai Azeez NSCQCR Vol. 35 (2008) page 427 at 455; R V Kutee (1941) 7 WACA 175; R V Harris (1927) 2 K.B 587; Okonkwo V Police (1953) S2 NLR 65.

Counsel submitted that the husband of the deceased (Ndubisi Orji) who received the death declaration of his wife and the villagers who received the information from the deceased that it was the accused person that matcheted her were not called upon to testify to the dying declaration. Also, the medical doctor who carried out the post mortem test on the deceased was not called as witness to prove the truthfulness of the said post mortem report. He furthered that, it was observed by Lord Hervard C.J. in the case of Okonkwo V Police (supra) that the prosecution was bound to call “all material witnesses before the court even though they gave inconsistent account”. And, that it was not the PW2 who actually arrested the accused person, rather, the villagers. The PW2 only carried out investigation on the case. He referred to the case of Babangida Iro V The State NCC Vol, 3 page 1 at 32; Ijioffor V State (2001) 6 NSCQLR 209 at 229.

Counsel submitted that the Exhibit recovered from the accused person according to the PW2 were blood stained slippers and no evidence was led to prove whether the blood is a human or animal blood. Further that this creates a doubt in the mind of court which doubt should be resolved in favour of the accused. He referred to the cases of State V Fatai Azeez (supra); Ajose V The State (2002) NWLR (Pt. 766) page 302 at 319 para D-E.

Counsel further submitted that when the issue of who caused the death of the deceased is an issue, it lies on the prosecution to prove its case beyond reasonable doubt by bringing all the facts and evidence before the court. And, that the prosecution has woefully failed to prove the time and exact place where the incident occurred not even on the charge sheet on which the accused person was taken to court and the trial court failed to put this into consideration before convicting him. He referred to the case of Ebong V State (2012) All FWLR (Pt. 633) page 1945 at 1951 – 1953 Ratio 10 page 1945 and urged the court to resolve this issue in favour of the Appellant.

On the part of the Respondent in reacting to issue one (1), Learned Counsel for the Respondent began by laying out the ingredients of the offence of murder and submits that to succeed on a charge of murder, the prosecution must prove beyond reasonable doubt the following essential ingredients:

a. That the deceased died;
b. That the death of the deceased was caused by the accused, and;
c. That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence. He referred to the case of Edotto V The State (2010) 14 NWLR (Pt. 1231’sic’); Nkebisi v State (2010) 5 NWLR (Pt. 1188) 471 at 495 – 496 a – b and Igabele V State (2006) 2 SCNJ 124 at 133 – 134.

Counsel submitted that the question is whether the prosecution proved every one of the ingredients as required by law and further that the first question to ask is whether it was proved that Happiness Ndubueze died. He submitted that by Exhibit C8 the post mortem report prepared by one Dr. Aribiyi on the deceased, clearly stated that Happiness Ndubueze (deceased) was examined and certified the cause of death to be hypovolemic shock (that is severe blood loss), secondary to multiple penetrating injuries from a sharp object. Furthered, that PW1 in his evidence in court, testified that the husband of the deceased, Mr. Ndubueze identified the corpse at the Federal Medical Center Owo before Dr. Ariyibi examined same, and his evidence was not challenged by the Counsel on behalf of the accused. He urged the court to hold that the evidence before the court is sufficient to prove that Happiness Ndubueze died and referred the court to page 23 of record.

Learned Counsel submitted that the next question to ask is whether the death of Happiness Ndubueze was caused by the act of the accused person. He submitted that Exhibit C8 shows the cause of death of Happiness Ndubueze to be hypovolemic shock (severe blood loss) secondary to multiple penetrating injuries from a sharp object. He contended that PW2, corporal Ojo Adebayo also described the injuries sustained by the deceased who also in her dying declaration said “Chidi has killed me”. And that the accused person had admitted during Cross Examination that he used cutlass to cut the deceased on her neck and her hand and that he did not know how many times he cut her, and concluded that the deceased died as a result of the act of the accused person and urged the court to so hold. He referred to the case of Olaiya V State (2009) 7 NWLR (Pt. 1141) 540 at 558.

Learned Counsel submitted that the next thing the prosecution must establish is whether the act of the accused that caused the death was intentional, and that death or grievous bodily harm was its probable consequence. He submitted that the relevant evidence is that of the accused person and referred to Exhibit C1, C2 and C4 and his testimony under Cross-Examination contained at pages 25 – 26 of the record. Furthered, that the law presumes that a man intends the natural and probable consequences of his act and the test to be applied is the objective test. He referred to the cases of Ibikunle v The State (2007) All FWLR (Pt. 354) 209 at 230 para C – E; Garba V The State (2007) 16 NWLR (Pt. 1060) 378 at 459.

He submitted that a confession is an admission made at any time by a person charged with a crime, and submitted that the Appellant during his testimony in court had already confessed to cutting the deceased with his cutlass. He referred to the provision of Section 27 (1) of the Evidence Act and the cases of Nwachukwu V State (2002) 12 NWLR (Pt 782) 543; Isah v State (2007) 12 NWLR (Pt.1049) 582 referred to (Pt. 626) para D – E; Tanko v State (2008) 16 NWLR (Pt.1114) 591 C.A; Kim v State (1991) 2 NWLR 2 (pt. 175) 622; Emeka v State (2001) 14 NWLR (Pt 734) 666 referred to page 628 para A -B; Yesufu v State (1975) 6 SC 167; Hassan v State (2001) 15 NWLR (Pt. 735) 184; Madjemu v. State (2001) 9 NWLR (Pt.718) 349 page 628 para D – E to the effect that an accused person can be convicted solely on his confessional statement.

Learned Counsel submitted that the Appellant’s pair of slippers, blood stained clothes, one polythene bag containing weed suspected to be Indian hemp and his Voters’ Identity Card found at the scene amount to circumstantial evidence which link the Appellant with the crime, and contended that circumstantial evidence which is cogent, consistent, irresistible, rational and compelling can be used to convict an accused person charged with a criminal offence. He referred to the case of Akinbisade V The State (2007) All FWLR (Pt. 344) 17 at 42 para. E – H (SC) and urged the court to so hold.

Learned Counsel further submitted that it is not the law that the prosecution must call a load of witnesses to establish his case, as a single credible witness is sufficient to ground conviction. He referred to Section 200 of the Evidence Act and urged the court to resolve issue one in favour of the Respondent.

RESOLUTION OF ISSUE 1

Whether in view of the evidence led at the trial by the parties, the prosecution proved his case against the Appellant beyond reasonable doubt.

The Appellant, accused person was charged for the murder of the deceased one Happiness Ndubueze. At the trial court the Appellant pleaded not guilty to the charge but made confessional statements and gave oral Evidence before the court as contained on pages 25 – 26 of the record proceedings.

To prove the offence of murder as in the case at hand contrary to Section 316 and punishable under section 319 of the Criminal Code cap. 30., Vol. 12 Laws of Ondo State of Nigeria, 1978, the burden is on the prosecution to prove his case beyond reasonable doubt. It is trite that in a charge of murder, the prosecution is obliged to prove that:
a. The deceased died;
b. The death of the deceased was caused by the accused; and
c. The act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.
See the cases of Madu V State (2012) 15 NWLR (Pt. 1324) 405, 443; Idemudia v State (2001) FWLR (Pt.55) 549, 564 (1999) 7 NWLR (Pt. 610) 202; Akpan V State (2001) FWLR (Pt. 56) 735.
In the case of Madu V State (supra) the Supreme Court provided further insights into the nature of the duty on the prosecution. Ariwoola JSC opined that:
“… In a murder charge, prosecution owes it a duty to discharge, by proving the death of the victim, responsibility of the accused by act or omission, intentional act or omission of the accused with knowledge that it could cause grievous bodily harm or death. The prosecution must prove that the act or omission caused death but not it could have caused death.”
The courts have taken the view that the above ingredients must be co-incident in the sense that the three conditions must co-exist. The effect is that when one of these Trinitarian ingredients is absent, the prosecution would not have discharged its duty.
See Obade V State (1991) 6 NWLR (Pt. 198) 435, 456.

The Appellant was arraigned on information before the lower court. He was charged with the offence of murder. Learned Counsel for the Appellant argued, and rightly that the prosecution had the burden to prove the above ingredients beyond reasonable doubt. The lower court, in treating the ingredients of the offence of murder, dealt with them one after the other. At page 58 of the record of proceedings, the lower court considered the first ingredient: Whether the deceased died. Going through the testimony of PW2, DW1 and Exhibit C8, it found as a fact that Happiness Ndubueze the deceased has died.

The learned trial judge in his finding on the first ingredient of the offence of murder held that the evidence of the prosecution shows beyond reasonable doubt that Happiness Ndubueze is dead.

I, equally, endorse this finding of the lower court indeed and I so hold that the first ingredient of the offence of murder was established.

In determining the next question, that is, whether the prosecution proved the second ingredient of the offence of murder, namely that the death of the deceased resulted from the act of the accused person, the learned trial judge considered the testimonies of PW2, PW1 and Exhibits tendered at the trial. It considered the oral testimony of DW1 (the accused person) before the court at page 25 – 26 of the record of proceedings which reads:-

“My name is Chidi Edwin, I lived at Wasimi Village. I did not kill Happiness Ndubueze, I only cur her with cutlass because she stole my things, I cannot remember what happened at Wasimi, what happened Wasimi took place in April of the year. What happened is that the lady stole my thing what she stole is my smoke N25,000, groundnut oil, she cut mu (sic) neck She is like smoke. She entered me. She stole my cloth, she stole my slippers. I warned her not to steal my things a period. This person who used to steal my things, her name is Rose. I don’t know her father’s name. I used to do any work business. I sell yoghurt I also work as a bricklayer, work as Gardner. On the day the incident happened I went to the farm. On my coming, I saw some people they hold me, I did not do anything to them. I told them I cut her. They took me to the station and I said I cut her because she stole my things. My things were with her. I made statement to the police, my statement is that she stole my things and I cut her finish. It is not police that collected cutlass from me. It is the people that held me that whether it from me (sic), They said it is the knife I used to cut her the people who collected the knife from me did not meet me where I cut her. Police took me to the place I cut the lady. They did not take me to the farm where I was working”. (italics supplied for emphasis).

Under cross examination he furthered that:

“I said I am the one who cut the deceased. Because she stole my things I cut her neck and hands, I did not count the number of times I cut her. I had smoked hemp and I was annoyed. I did not tender to the police that she stole my things if the mistake I made”. (italics supplied for emphasis).

Also, I wish to refer to the excerpt of the voluntary confessional statement of the PW2 and the accused person herein the Appellant which was reproduced and tendered in evidence before the lower court on pages 14, 15 and 18 respectively of the record.

The PW2 testified before the court as contained on pages 16 to 18 and tendered exhibits which were admitted in evidence without objection.

PW2 testified that:

“On 28th April, 2011, I was at the station at Bolorunduro Police Station when one Ndubueze Orji came to the station and reported that one Edwin Chidi matcheted his wife Ndubueze Happiness. Immediately I left for the place with Anti crime vehicle driven by one Inspector Adodile Felix on getting to the camp. I meet the said woman inside wheel barrow in a pull of blood. She was cut all over her body including head and finger, immediately we took the woman in our police vehicle to Ondo. On getting to Ondo we rushed her to emergency ward. Doctors started treating her. I came back to the State …….. I took the suspect and the husband of the complainant (sic) to the scene. On getting to the scene I recovered bathroom slippers, blood stained cloths, one polythene bag containing weed suspected to be Indian hemp and one voters identity card … on the second day 29th April, 2011 I went to General hospital Ondo, I took the statement of the woman Ndubueze Happiness, when I was taking her statement she told me that Edwin is the one that matcheted her but that she did not know what she did to him to make him matcheted her…”

Learned Counsel for the Appellant had argued that there is no evidence of the cause of death. The husband of the deceased, the villagers who received the information from the deceased that it was the accused person that matcheted her and the doctors that perform post mortem were not called to testify as witnesses.

The prosecutorial responsibility is to establish its case beyond reasonable doubt in order to secure conviction. How they get around achieving this is entirely the business of the prosecution whether they field one, two or more witnesses in satisfaction of such proof, depends on circumstances of the case, but the accused person under no circumstances dictates to the prosecution the person or number of persons that they must call as witness or witnesses. See Umar V State (2014) 13 NWLR (Pt.1425) 465 at 497; State v Ajie (2000) 11 NWLR (pt. 678) 434; Akindipe v State (2012) 16 NWLR (pt. 1325) 94. In the case of Akindipe V State (supra) Ngwuta JSC had this to say:
“… in all criminal trials, the prosecution is not obliged to call any number of witnesses to prove its case. A single witness, if believed by the court, can establish a criminal case even if it is a murder charge.”
It seems to me and I so hold that a single witness if believed by the court can establish a criminal case.

Where the cause of death as in the instant appeal was obvious, medical evidence ceased to be of any practical or legal necessity in murder cases. In the instant case, the facts shows undoubtedly that a period indeed after the Appellant cut the deceased on her neck, head, hand and body several times and ran away, with knowledge that his victim the deceased fell down in the pool of her blood, before the said Happiness Ndubueze died in Hospital; and there is absence of evidence as to whether anything occurred in the time between when evidence showed that Happiness Ndubueze fell down in pool of her blood as a result of being cut with cutlass on neck, back, hand and body severally by the Appellant, clearly showed that she died as a result of the injuries she sustained by the act of the Appellant.
I am in accord with the Learned Counsel for the Respondent that the act of the Appellant (accused person) caused the death of the deceased. The evidence of the Appellant (accused person) DW1 before the lower court has done nothing to diminish the testimonies of the prosecution witnesses before the court as they had tendered incontrovertible evidence on which the court relied upon to convict the Appellant. The court below considered the defence of the Appellant and correctly came to the conclusion that the death was as a result of the committal of a grievous bodily harm by the Appellant which constituted murder; and the facts tendered by the prosecution show that the said Happiness received grievous harm, which resulted to her death. The injuries have been proved beyond reasonable doubt to have been caused by the Appellant. It is therefore admissible in law as proof of cause of death as held by the court below. I have no reason to hold otherwise.
In the instant appeal, the incontrovertible evidence which lead irresistibly to the conclusion of the cause of death may lead to the inference of the cause of death and dispense with the medical evidence and the trial court drew a proper inference in determination of the cause of death. See Igago v. State (2000) FWLR (Pt. 12) 2081 (2000); Oforlete v State (2000) 7 SC (Pt. 1) 80.

We agree with the lower court’s inference that the deceased person’s death was a probable, and not just a likely, consequence of the accused person’s act of using cutlass on the deceased. In the case of Adamu Garba v The State (1997) 3 SC NJ 68, it was held that if a dangerous weapon such as an iron bar or a dagger or a gun, was used, the courts will infer that death is a probable and not just a likely consequence of the accused person’s act. Also, in the case of Amusa v State (2003) 4 NWLR (Pt.811) 595. It was held per Onu JSC, thus, “a court can infer the cause of death from the circumstances of the evidence adduced before it.”

I note that the Learned Counsel for the Appellant has made fuss or weather that in the said charge, the time when the offence was allegedly committed, is not stated.
This argument of the Learned Counsel is an afterthought. This is because, the law is trite that any objection to a charge for any formal defect on the fact on the face thereof, shall be taken immediately after the charge has been read over to the accused person and not later. See Agbo v The State (2006) 1 SC (pt. II) 73; Bamaiyi v the State (2006) 12 NWLR (Pt. 994) 221; Shehu v State (2010) 2 – 3 SC (Pt.1).
Although the charge did not state or specify the time of the day of the commission of the offence by the accused person, in my humble view, the time to state is with the reference to the day the offence was committed and not the hour of the day. The non-inclusion of the time in the charge is a mere irregularity. See Shehu V State (Supra).
It is settled that an accused person who acquiesced to an irregular procedure of his trial, cannot complain about the irregularity on appeal, if it did not lead to miscarriage of justice. See Ndukwe V LPDC (2007) 5 NWLR (Pt. 1026) 1 at 52 – 53.
The Appellant did not object to the charge at the trial court nor did he show to the court any miscarriage of justice occasioned thereby. Therefore, he is precluded from complaining before this court. I hold that there is no miscarriage of justice for the alleged omission.

I therefore, agree with the lower court that the prosecution has established the second ingredient of the offence, that is the death of the deceased resulted from the act of accused.

On the third ingredient, the court observed the general proposition that for a conviction for murder, proof of intent to kill or cause grievous harm is sufficient, it placed reliance on several cases to that effect.

The intention to kill or to cause grievous bodily harm, in this case demonstrated by matcheting the deceased on her neck, head, hand and body severally with cutlass, by the accused person which resulted in death will be, and in this case was, sufficient to establish the offence with which the Appellant was charged.

The law presumes that a man intends the natural and probable consequences of his acts. And, the test to be applied in these circumstances is the objective test, namely, the test of what a reasonable man would contemplate as a probable result of his acts. See the case of Garba & Ors v State (2000) 6 NWLR (pt. 661) 379,399.

Proof beyond reasonable doubt means proof of an offence with the certainty of the Criminal Law. That certainty is that, the offence has been committed and that no other person but the accused person on the evidence committed the offence. Where the evidence conclusively establishes these facts, the case is said to be proved beyond reasonable doubt.

The Appellant, ‘accused person’, in his oral evidence before the lower court testified at page 25 of the record thus:

“I told them I cut her, … my statement is that she stole my things and I cut her finished…”

He furthered under cross examination at page 26 of the record thus:-

“I said I am the one who cut the deceased. … I cut her neck and hands. I did not count the number of times I cut her. …”.

The intention of the accused person ‘Appellant’ can be inferred from his statement and oral evidence that he nursed grievances against the deceased because he believed that the deceased was a threat to him. His confession that he did not count the number of times he matcheted the deceased person has revealed the fact that he intended to cause her grievous bodily harm or to kill her.

It is clear from the evidence that at the close of the case for the prosecution, the prosecution had discharged the burden that the deceased died from the intentional act of the Appellant. Thus, the lower court found to the effect that the prosecution is said to have proved its case beyond reasonable doubt when it has proved all the ingredients of the offence the accused is charged with. It maintained that the prosecution has proved beyond reasonable doubt the guilt of the accused, Page 52 of the record. And I agree.

Having gone through the evidence and facts adduced before the court, from the proved and accepted facts in all perspective above, it is clear to me that the death of the deceased leaves no one in doubt and points to the Appellant.

This issue is resolved against the Appellant and in favour of the Respondent.

ARGUMENT ON ISSUE NUMBER 2

Whether in view of the right of the Appellant’s fair hearing, the trial court was right in proceeding to sentence the Appellant to death after conviction without affording him right of allocutus.

This issue, according to learned Counsel for the Appellant arises from grounds 4 of the Amended Notice of Appeal. He averred that the learned trial judge entered a verdict of guilt against the Appellant and convicted him for the offence charged without asking him if he had anything to say. He quoted the learned trial judge at page 62 of the record where, in concluding the judgment, he stated thus:

“From the statement and evidence of the accused person, the deceased had offended him for a period of time. He said the mistake he made is that he did not complain to the police. He cannot enjoy the benefit of provocation as a defence. In the light of the aforesaid, I find that the prosecution has proved beyond reasonable doubt, the guilt of the accused. I hereby sentence you Chidi Edwin to death by hanging by the neck until you be dead and may the lord have mercy on you soul”.

Learned Counsel for the Appellant submits that the trial proceeded to sentence the Appellant to death by hanging perfunctorily. He contended that the trial judge has a duty of asking the convict if he has anything to say before proceeding to pass sentence on him. And, that it is a fundamental aspect of our criminal law and practice. In legal parlance, it is called “allocutus”.

Learned Counsel contends that the stage of allocutus in criminal trial is one which affords the convict an opportunity to mitigate his sentence if well made out. He furthered that the right to allocutus being a statutory right is provided for in Section 247 of the Criminal Code Law which is similar to Section 247 of the Criminal Procedure Act cap C 41 LFN 2004 and Section 6 of constitution (sic) and considered it as part of hearing procedure in criminal trial and part of the convict’s defence. Counsel reproduced Section 247 of the Criminal Code Law.

“247, Accused to be asked whether he has anything to say before sentence”.

And, Section 6 of the Constitution which provides thus:

“(6) Every person who is charged with a criminal offence shall be entitled to
(b) Be given adequate time and facilities for the preparation of his defence”.

And contends that allocutus is a facility for defence.

Learned Counsel submits that right of allocutus is a constitutional right and failure of the trial court to accord the Appellant the right is a fragrant violation of his right to fair hearing.

He referred to the case of Ogboh V FRN NSCQLR Vol. 10 (2002) page 498 at 508 – 511, and urged us to so hold. He averred that the law is settled that breach of right to fair hearing is a serious and fatal breach to the proceeding and judgment of court which renders them liable of being set aside, or declared a nullity. He referred to the cases of Ndukauba v Kolomo NSCQLR Vol. 21 (2005) page 16 at 36; Tsokwa Motors (Nig.) Ltd. V UBA Plc NSCQLR Vol. 33 (2008) page 33 at 69.

Lastly on this issue, Learned Counsel for the Appellant submitted that the fact of a right of allocutus is guaranteed under Section 36 (6) of the Constitution, a mere statutory provision cannot invalidate such right. He referred to the cases of Adisa V Oyinwola NSCQLR vol. 2 (2000) page 1264 at 1322; Balarabe Musa v INEC NSCQLR Vol. 13 (2003) page 39 at 71, and urged the court to resolve issue 2 in favour of the Appellant.

The Respondent’s Counsel in reaction to this issue submits that the stage of allocutus in criminal trial is one which affords the convict to say anything in regards to his conviction and it is not an opportunity to quash a conviction and that it is a discretionary power of a trial judge. He reproduced Section 247 of the Criminal Procedure Law of Ondo State cap. 38 Vol. 2, 2006 which provides thus:

“If the court convicts the accused person or he pleads guilty, it shall be the duty of the Registrar to ask the accused whether he has anything to say why sentence should not be passed on him according to law but the omission of the Registrar to ask him or his being so asked by the Judge or Magistrate instead of the Registrar shall have no effect on the validity of the proceeding”.

And submit that under the Criminal Procedure Law, allocutus is just a mere privilege and not a right given to a convicted Felon, which may reduce the sentence but never cancelled entirely. He referred to Blacks’ Law Dictionary 6th Edition at page 76 and the case of Ogbeide V Commissioner of Police (1964) 2 All NYR 176.

Learned Counsel argued that where the law which prescribed an offence provides for a minimum penalty or a mandatory penalty, allocutus has no effect. Therefore, allocutus has no effect on a conviction for murder and urged the court to so hold and resolve issue 2 in favour of the Respondent.

Learned Counsel finally averred that Section 36 (6) (b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) does not give a convicted person a right to allocutus, rather than to an accused person and reproduced the section thus:

“Every person who is charged with criminal offences shall be entitled to:
(a) Be given adequate time and facilities for the preparation of his defence”.

And argued that “who is charged” is different from “who has been convicted”. Therefore, the Appellant cannot rely on this provision of the Constitution as a defence to upturn the decision of the trial court and urge us to so hold.

RESOLUTION OF ISSUE NUMBER 2

Whether in view of the Appellant’s right to fair hearing, the trial court was right in proceeding to sentence the Appellant to death after conviction without affording him right of allocutus.

The Crux of the Appellant in this issue is that the learned trial judge was wrong not to have granted the Accused/Appellant right of allocutus, that this denial is not only contrary to the provision of Section 247 of the Criminal Procedure Laws but also contrary to the fair hearing provision in Section 36 (6) (b) of the Constitution of Federal Republic of Nigeria 1999 (as amended).

The Learned Counsel for the Respondent on his part contended that where the court has convicted an accused person on a mandatory sentence which carries capital punishment as in this instance case, the court or judge has no other option than to sentence the accused person accordingly and that the failure to grant allocutus cannot render the proceeding void or affect the conviction for murder.

This issue number 2 is resolved against the Appellant, in favour of the Respondent.

ARGUMENT ON ISSUE NUMBER 3

Whether the learned trial judge in his judgment properly evaluated the evidence led and defence put up before reaching his decision to convict the Appellant of the offence of murder and thereafter sentenced him to death by hanging.

This issue, according to learned Counsel for the Appellant arises from ground 1 and 2 of the Amended Notice of Appeal. He averred that the Appellant denied matcheting the deceased person. In his statement at police station, state CIO Akure. He quoted and reproduced the statement thus:

“I am a native of Ejara Street in Abakaliki of Ejara Local Government Area of Ebonyi State. I attended Ejara Primary School in Abakaliki and completed my Primary Education, but I did not further my studies because of financial problem. I joined casual work after primary school education and later came to Ondo State about fifteen years ago and stay with my father because my mother died when I was very young. I know the deceased, one Roseline and I know her husband too because we live in the same compound but what pains me most was that whenever I am eating it will always enter Roseline and her husband mouth but I cannot tell her. The husband will turn to black snake while the wife turn to cobra snake and collect all the food I ate to their stomach but I cannot tell anyone because it is spiritual. On 29th of April at about 7a.m I went to a farm which one Fesi Babatunde gave me to brush but I left the farm at 3p.m. while some people arrested me that one woman called Roseline died and I am the person that killed her and they took me to Bolorunduro Police Station. I went to the farm alone and it was a cocoa farm and I left alone when they came to arrest me that I killed one woman called Roseline. The second thing that make me to quarrel with Roseline is that whenever she washed her cloth finish, she will spread it on top of sink in my house, and I always warn her for that. I am not the person that killed her and I did not know anything about her death. My slippers were found at the back of one cassette secondary school and not where the deceased was killed. I was only informed that one woman called Roseline was at one hospital for (sic) Ondo but they did not take me there, and I was not informed when the woman died. This is all my statement”.

Learned Counsel contends that the trial court did not consider the explanation made at the police station where the defence of Alibi was timeously raised. He argued that alibi is a defence which seeks to persuade the court that the accused could not possibly be at the scene of the crime as he was somewhere else probably with some people who could testify to that effect. He referred to the case of Sowemimo V The State NSCQLR Vol. 18 (2004) page 24 at 34.

Counsel argued that the police never investigated the alibi, and the trial court failed to consider the defence of Alibi raised by the accused person and the Law is that, a court must consider all defences raised by the accused person or which are opened or available to him. He contended that it is a cardinal principle of law that no claim of alibi should be disregarded by the prosecution without a check. He referred the court to the cases of Udoebre V State NSCQLR Vol. 6 (2006) page 755 at 766; Bolanle V The State NCC Vol. 5 (2010) page 1 at 10; Agbanni V The State (1995) 1 NWLR (pt. 369) 1 at 27 and Eyo V the State (2012) All FWLR (657) page 763 at 782 par. B-C.

Counsel submits that the alibi made by the Appellant casts a doubt on the Respondent’s case and in the mind of the judge, which the trial judge should have resolved in favour of the Appellant and thereby resulting in his acquittal. He referred the court to the cases of Onukhukwu V The State (1998) 4 NWLR (Pt. 547) 576 at 592; Ankwa V The State (1969) 1 All NLR 133 at 136 and Ajose V The State (2002) 1 NWLR (Pt. 766) page 302 at 319 par D – E.

Learned Counsel argued that the learned trial judge’s reliance on the oral evidence of the accused person to convict him, his failure to consider the defence of Alibi and the failure of the prosecution to investigate the alibi led to a miscarriage of justice and as such said Counsel, the conviction arise there from should be quashed. He referred to the case of Udoebe V State (supra) and urged us to so hold and allow the appeal. He also urged the court to set aside the judgment of the trial court and proceed for an order discharging and acquitting the Appellant.

The Respondent’s Counsel in relation to this issue submits that it is a trite law that once an accused person is fixed at the scene of the crime his defence of alibi must crumble. He contended that the defence of alibi raised by the defence is not in any way helpful to the Appellant. He explained that the testimonies of prosecution witnesses and the evidence given by the Appellant thereat has unequivocally pinned him down to the scene of crime, therefore failure of the police to investigate the alibi will not result in the acquittal of the accused person. He referred to the cases of Ntam V State (1968) NWLR 86 (sic) and ANI V State (2003) 11 NWLR (pt. 830) 142.

Learned Counsel for the Respondent argued that the standard of proof of alibi is not beyond reasonable doubt, but on the balance of probabilities putting reliance on the case of Odu V State (2001) 10 NWLR (pt 722) 668. He maintained that the evidence of PW2 and the oral evidence of the accused, wherein he admitted that he was present at the scene of the crime and that he used a cutlass to inflict several cuts on the deceased, fixed the accused person at the scene of the crime.

Learned Counsel averred that the evidential burden is on the accused person to adduce evidence of his where about at the material time. He maintained that it is not enough for the accused to say that he was at a particular place at large. He referred to the case of Tanko V State (2008) 16 NWLR (Pt. 1114) 591. He urged the court to resolve issue 3 in favour of the Respondent.

RESOLUTION OF ISSUE NUMBER 3

Learned Counsel for the Appellant referred to page 8 – 9 of the records, he quoted that excerpts of Exhibit C1 and sought to impugn that the Appellant was not at the scene of crime and that the learned trial judge did not consider the defence of alibi raised by the Accused/Appellant and contended that the learned trial judge findings were not properly evaluated by the evidence on record.

In the instant case, the Appellant plea of alibi was at large as he did not in any manner furnish the court with sufficient particulars as to his whereabout and those present with him at the material time and that will not avail him. The prosecution witnesses especially PW2 fixes the Appellant at the scene of the crime so also the oral evidence of the Appellant before the trial court as DW1 fixes himself at the scene of the crime. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempt to do so there is no flexible and/or invariable way of doing this, if the prosecution adduces sufficient and accepted evidence of crime at the material time, surely the alibi is thereby logically and physically demolished. See Patrick Njoven & Ors V The State (1973) 1 All NLR 441.

In this respect and for ease of reference, I will reproduce the oral evidence of the Appellant accused person before the trial court as DW1 at page 25 to 26 of the record of proceedings:

“My name is Chidi Edwin, I lived at Wasimi Village, I did not kill Happiness Ndubueze, I only cut her with cutlass because she stole my things. I cannot remember what happened at Wasimi. What happened Wasimi took place in April of the year. What happened is that the lady stole my thing, what she stole is my smoke N25,000, groundnut oil, she cut mu (sic) neck She is like smoke, She entered me. She stole my cloth, she stole my slippers. I warned her not to steal my things a period (sic). This person who used to steal my things, her name is Rose. I don’t know her fathers name. I used to do any work business, I sell yoghurt. I also work as a bricklayer, work as Gardner. On the day the incident happened I went to the farm. On my coming, I saw some people they hold me, I did not do anything to them, I told them I cut her. They took me to the station and I said I cut her because she stole my things, My things were with her. I made statement to the police, my statement is that she stole my things and I cut her finish. It is not police that collected cutlass from me. It is the people that held me that whether it from me (sic). They said it is the knife I used to cut her the people who collected the knife from me did not meet me where I cut her. Police took me to the place I cut the lady. They did not take me to the farm where I was working”.

He furthered under cross examination thus:

“I said I am the one who cut the deceased. Because she stole my things I cut her neck and hands. I did not count the number of times I cut her. I had smoked hemp and I was annoyed. I did not tender to the police that she stole my things if the mistake I made.”

PW2 in his evidence testified on page 17 of the record thus:

“……….. I took him back to the scene of the crime together with the husband of the complainant (sic) because the woman in question was still in the hospital she could met (sic) follow us to the scene. I took the suspect and the husband of the complainant (sic) to the scene. On getting to the scene I recovered bathroom slippers, blood stained cloths, one polythene bag containing weed suspected to be Indian hemp and one votering identity card……….”

PW1 in his evidence before the court on page 14 testified thus:

“… while I recorded statement of the accused under the words of cause. I later visited scene (sic) of crime at Wasimi Village.”

He furthered under cross examination thus:

“… I visited the scene. I did not visit the farm but the incident occurred along the road to the farm… I took the accused to the scene of crime. I did not visit the farm of the accused. He only said his farm is down there”.

In evaluating the evidence of the prosecution’s witnesses and that of the accused person, the learned trial judge was able to consider the defence of alibi put up by the accused and made it clear in his judgment on page 60 of the record as follows:

“… But the general principles is that the accused must present his alibi and once he has given full particulars of the alibi the prosecution must investigate it to confirm it or disprove it. Failure to investigate when faced with the full facts of the alibi will vitiate the prosecution.”

Prosecution is ordinarily required to investigate the alibi of the accused by visiting the farm of Fesi Babatunde, however, based on the peculiar facts of this case, a visit to the farm would not have added any value to the defence because the evidence of PW1 under cross examination that the incident occurred on the way to the farm, was not controverted.
The argument of learned defence Counsel has also been defeated by the oral evidence of the accused who said he cut the deceased with a cutlass. The evidence of the accused fixes him to the scene of crime.
The charge is that the incident occurred at Wasimi Village, PW1 in his evidence said the murder took place at Wasimi village and the accused also said it occurred at Wasimi village. The omission to state the exact time the incident occurred is not fatal. The submission of the Learned Counsel that the prosecution did not incriminate the accused as (sic) it did not go beyond showing that PW1 visited the scene in company of the accused is unfounded.

The case of Iyosar V State (supra) is distinguishable from this case. In the case wherein His Lordship Wali JCA (as he then was) said that:

“Evidence to rebut the alibi of the accused was given by one Mr. Kopsamand to PW4 in the case. Mr. Kopsamand was not called as a witness”.

The spirited efforts by the Counsel for the appellant to impeach these findings were exercises in futility. It is obvious from the above excerpts, that the lower court believed and accepted the evidence of PW1 fixing the Appellant at the scene of crime and the oral evidence of the Accused Person/Appellant before the court fixing himself at the scene of the crime. The accused person admitted in his oral evidence before the court that the incident occurred at Wasimi village and he was taken to the scene of crime by the PW2, thereby fixing himself at the locus criminis. These findings are unimpeachable. In my view, the learned trial court carefully considered and evaluated the evidence in the case and has come to the correct decision that the defence of alibi set up by the accused person has been demolished.

Counsel for the Appellant, probably, forgot that there are authorities for the view that where the prosecution fixes the accused at the scene of the crime investigation crumbles. See Chewmoh V State (1986) 2 NWLR (Pt 22) 332. Agbanvi V State (1995) 1 NWLR (pt. 369), 1 at 5; Ayan V. State (2013 15 NWLR (pt. 1376) 34.

It is misdirection for the Counsel to submit that where alibi is raised the prosecution must investigate it. In the case of Agbanyi V The State (supra) it was held that if the prosecution could lead positive evidence fixing the accused at the scene of the crime at the time the crime was committed and the trial court accepts the evidence, the accused’s plea of alibi will collapse. Also, the Supreme Court in Ayan V State (supra) held that where the accused person gives conflicting stories as to his where about at the material time under consideration, there is no duty on the prosecution to investigate the alibi and in such a case no alibi is established.
Therefore, if the prosecution can lead strong and positive evidence which fixes the accused at the scene of the crime and which evidence the court accepts, the alibi naturally collapses. If the alibi had been true, it would have been open to and incumbent on the Appellant to call Fesi Babatunde who purportedly gave him the alleged farm to brush to support his plea of alibi.

In the light of the foregoing, I am unable to fault the findings and conclusions of the learned trial court.

Having gone through the proved and accepted evidence and facts before the court, the learned trial judge rightly convicted the Appellant. I find no justification for disturbing its findings.

This issue is resolved against the Appellant and in favour of the Respondent.

On the whole this appeal lacks merit and is accordingly dismissed. Consequently, the judgment of the Ondo State High Court, sitting at Akure Judicial Division delivered on 17th July, 2013 in charge No. AK/23c/2012 wherein the Appellant was convicted and sentenced to death by hanging is hereby affirmed.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the benefit of reading before now the judgment of my learned brother, Mohammed Ambi-Usi Danjuma, JCA and I agree with his reasoning and conclusion reached therein that the appeal lacks merit and ought to be dismissed. The facts of this case have been so exhaustively reviewed and spun out by my learned brother Danjuma, JCA in the leading judgment.

However, I would like to add some few words. It is trite that in order to secure a conviction for the offence of murder, the prosecution must establish the following ingredients beyond reasonable doubt:

(a) The death of the deceased.
(b) The act or omission of the accused which cause the death of the deceased.
(c) That the act or omission of the accused was intentional with the knowledge that death or grievous bodily harm was its probable consequence. See Igabale v The State (2004) 15 NWLR (Pt. 896) 314 at 332 A-B; Sule v The State (2009) 17 NWLR (Pt. 1169) 33 at 53; Okeke V The State (1999) 2 NWLR (Pt. 590) 246.

In the instant case, the death of the deceased is not in dispute. The major bone of contention is whether it was the act of the Appellant that caused her death. Having regard to the fact that the punishment for murder is the highest punishment that could be imposed on a human being, the prosecution is held to very stringent proof of all the ingredients of the offence. The prosecution must prove its case by evidence of such quality and quantity as to leave the court in no reasonable doubt as to the guilt of the accused person. Failure to prove an essential element of the offence would result in the conviction being quashed. See Udosen V The State (2007) 4 NWLR (pt. 1023) 125.

A voluntary confessional statement, whether oral or written, is an admission of guilt by an accused person and it is a relevant fact, admissible against its maker only. See Suleiman Arogundare V The State (2009) 6 NWLR (Pt. 1136) 165. The admission of guilt by an accused person, as in the instant case, can be at any time and once it is a statement suggesting that the accused committed the offence, it becomes a relevant fact and it is admissible.
Therefore, a free and voluntary confessional statement which is positive and direct, if properly proved, is adequate or sufficient to sustain a criminal conviction. See Arogundare V The State (supra) where the proved oral confession of the Appellant was held by the Supreme Court to be sufficient to sustain his conviction. In the instant case, the Appellant/accused person in his evidence as DW1 made oral confessional statement before the trial court where he gave graphic details of how he matcheted the deceased in the neck, hand, back and body several times. The Appellant testified inter alia at page 25 – 26 of the record as follows:-
“I told them I cut her ………. my statement is that she stole my things and I cut her finished……..”
Under cross-examination he furthered at page 26 of the record that:
“I said I am the one who cut the deceased …….. I cut her neck, head and hands. I did not count how many number of times I cut her……….”
Going by the above statement and the available credible evidence before the court, it could not be clearer, more cogent or more positive than that the Appellant committed the offence of murder. The law is settled that a free and voluntary confessional statement of an accused person alone is sufficient to sustain a conviction. See Mustaphar Mohammed & 1 Anor V State (2007) 4 SCNJ 117; Okon Osung V The State (2012) 18 NWLR (Pt.1332) 256.

In the light of the foregoing and the more detailed reasons contained in the leading judgment of my learned brother Danjuma JCA, I too dismiss the appeal and affirm the sentence and conviction passed on the Appellant by the trial court.

JAMES SHEHU ABIRIYI, J.C.A.: I had before now read the draft of the Judgment just delivered by my learned brother MOHAMMED AMBI-USI DANJUMA, JCA. Having resolved all three issues in favour of the Respondent, I agree that the appeal should be dismissed for lack of merit.

It is settled law that the onus is always on the prosecution to establish the guilt of the accused beyond reasonable doubt. The prosecution will readily achieve this result by ensuring that all the necessary and vital ingredients of the charge or charges are proved. See Yongo v. C. O. P (1992) NWLR (Pt.257) 36.

In a murder charge as in this case, the prosecution must prove beyond reasonable doubt:
a) the death of a human being
b) that it was caused by the act of the accused
c) that the act/acts were done with the intention of causing death; or
d) that the accused knew that death would be probable consequence of his acts. See Omini v. State (1999) 12 NWLR (Pt 630) 16.

From the evidence of the witnesses called by the prosecution (Respondent) and the testimony of the Appellant in Court, the above ingredients of the offence were proved beyond reasonable doubt.

Failure to call for allocutus had no effect on the validity of the trial of the Appellant. It did not amount to a breach of his fundamental rights to fair hearing. See State v. Babangida (2013) LPELR 20590.

An accused person must lead credible evidence that he was not at the scene of crime. See Obakpolor v. State (1991) 1 NWLR (Pt 165) 113. No such evidence was led in this case by the Appellant.

For the reasons contained in the lead Judgment, I too dismiss this appeal.

I affirm the conviction and sentence of the Appellant.

Appearances

Funmi Quadri (Mrs.),For Appellant

AND

Wale BamisileFor Respondent