CHIEF ERASMUS AMAYANABO V. THE STATE
(2013)LCN/6090(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 10th day of April, 2013
CA/PH/173A/2012; CA/PH/173/2012
RATIO
“circumstantial evidence may sometimes be conclusive, but it must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another. It is also necessary before drawing the inference of the accused guilt from circumstantial evidence be sure that there are no other co-existing circumstances which would weaken or destroy the inference.” See EBRE v. THE STATE (2001) 12 NWLR (Pt.738) 617 at 640 per Achike JSC.” PER NWOSU-IHEME, J.C.A.
“…Section 36 (5) of the 1999 Constitution, read together with Section 137 (1) of the Evidence Act, 1990 CFN (now S.135 (1) Evidence Act, 2011) every person accused of a criminal offence shall be presumed innocent until he is proved guilty and his prosecutors ore enjoined to prove his guilt beyond reasonable doubt’ The requirement of proof of evidence in the criminal procedure is not therefore for the accused person to prove his innocence. It is filed in furtherance of the obligation on the prosecution to discharge the burden placed on them by Section 36 (5) & (6) of the 1999 constitution. Subsection (6)(b) of Section 36 of the Constitution, for purposes of audi atteram partem, obligates the prosecution in the following words: 36. (6) Every person who is charged with a criminal offence is entitled to – (a) – – ——— ———————————- (b) To be given adequate time and facilities for the preparation of his defence.”PER EKO, J.C.A.
“The law is trite that if at the close of the criminal trial the totality of the evidence causes the Judge to doubt the guilt of the accused person, the benefit of such doubt must be given to the accused person. See ONUOHA v. THE STATE (1989) 21 SC (pt.II) 115. The evidential duty of the accused or his defence team is to show that reasonable doubts exist as to his guilt. He does this by cross-examination of prosecution witnesses or through defence evidence including documentary evidence, like Exhibit D1, in this case.”PER EKO, J.C.A.
JUSTICES
EJEMBI EKO Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
CHIEF ERASMUS AMAYANABO Appellant(s)
AND
THE STATE Respondent(s)
CHIOMA E. NWOSU-IHEME, J.C.A. (Delivering The Leading Judgment): The appellant was arraigned before the High Court of Rivers State, Port Harcourt Division along with one Chief Robert Umana Isiatati with the murder of one Isaiah Bibibama Amah on the 20th day of May, 2008 at Asarama Town, in the Andoni Local Government Area of Rivers State.
At the end of the trial the appellant was convicted of murder and sentenced to death by hanging. Also convicted along with the appellant was the 2nd accused at the lower court one Chief Robert Umana Isiatat.
Dissatisfied with the judgment, the appellant filed a notice of appeal containing eleven grounds of appeal on the 14/5/12. The grounds of appeal without their particulars read:
GROUND 1:
The learned trial judge erred in law when he expunged Exhibit D1 certified true copy of information in charge No. PHC/348CR/2010 The State v. George Adumu & 3 Ors. Charging George Adumu & 3 others for the murder of Isaiah Bibibama in May 2008 because there was no proof of evidence.
GROUND 2:
The learned trial judge erred in law when he held that curiously there was even no credible evidence to show that the person Isaiah Bibibama in Exhibit D1 refers to the same person Isaiah Bibibama Amah.
GROUND 3:
The learned trial judge erred in law when he held that after the murder of the deceased, accused persons fled to Ebukuma to meet a native doctor called Beke to cover his tracks and was revealed and brought to Asarama on 6/6/2008 by Ebukuma boys led by Monday Mkpero and that this evidence was not challenged by the defence.
GROUND 4:
The learned trial judge erred in law when he held that the accused persons had a duty to call the father of the deceased as a witness on the question that at the behest of Chief F. D. Abadi and the Council of Chiefs he led, using the militant George Adumu and his gang threatened the life of the deceased and that of his father.
GROUND 5:
The learned trial judge erred in law when he held that indeed the police through P.W.3 and P.W. 4 investigated the bogus allegation by the accused persons but found nothing incriminating or linking the alleged George Adumu and his alleged gang of militant with the murder of the deceased and thereby occasioned a miscarriage of justice.
GROUND 6:
The learned trial judge erred in law when he disbelieved the evidence of D.W.3 by describing it as incredulous and bordering on sheer fantasy.
GROUND 7:
The learned trial judge erred in law when he held that on the admitted evidence before him, he believed the evidence of P.W.2, P.W.3 and P.W.4 without properly evaluating their evidence thereby occasioned a miscarriage of justice.
GROUND 8:
The learned trial judge erred in law when he picked and chose from Exhibits “C1”, “C2” and “D” without properly evaluating same and thereby occasioned a miscarriage of justice.
GROUND 9:
The learned trial judge erred in law when he formulated a new doctrine, that is, the “doctrine of last being alive” without affording the accused person the opportunity to address the court on this new issue thereby denied the accused person his constitutional right to fair hearing.
GROUND 10
The judgment of the learned trial judge is unreasonable, unwarranted and not supported having regard to the evidence.
GROUND 11
The learned trial judge erred in law when in his ruling he refused, to admit in evidence the certified true copy of the notice of preliminary objection in Charge No. PHC/3 48/2010 State vs. George Adumu & 3 Ors. On the grounds that it was not relevant to the proceedings before the trial court.
Appellant’s counsel formulated four issues in this appeal which are found at page 1 of his brief of argument. They read:
1. Whether in the circumstances of this case the notice of preliminary objection by the militant George Adumu to charge No. PH/348CR/2010; State v. George Adumu & 3 Others for the murder of Isaiah Bibibama is admissible evidence.
2. Whether Exhibit ‘D’ murder charge in charge No.PHC/348CR/2010: State v. George Adumu & 3 others for kidnapping, murder of Isaiah Bibibama and others was properly discountenanced or expunged.
3. Whether Isaiah Bibibama Amah in charge No.PHC/1784CR/2009 and Isaiah Bibibama in charge No. PHC/348CR/2010 are one and the same person.
4. Whether by the circumstantial evidence before the trial court, the guilt of the Appellant was proved beyond reasonable doubt.
The respondent’s counsel on the other hand formulated a sole issue for determination to wit:
“Whether the respondent by circumstantial evidence duly proved before the trial court the charge of murder of the deceased, Isaiah Bibibama Amah against the appellant beyond reasonable doubt as to sustain the conviction and sentence of the appellant.?”
The appellant and his co-accused at the lower court were co-workers with the deceased at Japaul Nig. Ltd where they worked as security guards.
A summary of the case as presented by the appellant at the lower court was that they were not responsible for the death of the deceased and that on the 18/5/2008 they did not attend duty with the deceased at the same time as they had earlier in the evening attended a meeting with HRH King Asuk at his palace in Asarama where the deceased met them on his way to work and they were to join him at work later.
However, when they left the meeting at the King’s Palace to go and meet with the deceased, they were at the Bank of the River when they heard the voice of the deceased shouting that what has he done to warrant George Adumu, Wellborn’ Dede and their gang of militants to threaten to kill him. The militants replied him that they were hired to kill him, since he refused to leave the camp of HRH King Asuk to join the camp of Chief F. D Abadi.
Later they saw two flying boats leaving the Barge Area and when they went ashore Barge they saw the work clothing and slippers of the deceased but could not find the deceased and they left with these items and reported that the deceased had been kidnapped. Subsequently, on the 20/5/2008, the corpse of the deceased was found floating on the River by the Barge and was retrieved and taken by the police to Bori General Hospital and deposited in the mortuary.
It was also the defence of the appellant that Asarama has had a long standing Chieftaincy crisis of which they are of the faction of HRH King Asuk as opposed to the rival faction of Chief Abadi, Chief Owoh, Chief Etete and others who had used the alleged militants to terrorize their opponents and that they murdered the deceased.
On the other hand, a summary of the case of the respondent against the appellant and his co-accused at the lower court was that on 18/5/2008, the appellant and his co-accused who were co-security staff of Japaul Nigeria Ltd with the deceased, Isaiah Bibibama Amah were on duty with the deceased at their place of work on a Barge Site at Asarama and were the last to be with and seen with the deceased on 18/5/2008 while on duty with the appellant and his co-accused. That same 18/5/2008, the deceased did not return home from work and on 19/5/2008 the appellant and his co-accused returned with the personal work clothing and slippers of the deceased and reported to the father of the deceased that he was missing and thereafter went into hiding without offering any rational explanation as to what happened to the deceased.
On 20/5/2008, the corpse of the deceased was found floating on the River by the side of the Barge where he had been on duty on 18/5/2008 with the appellant and co-accused. The corpse was retrieved, taken to the mortuary where the father of the deceased Chief Bibama Amah identified same to the Doctor who performed an autopsy on the corpse. The result of the post mortem showed that the deceased died as a result of Pulmonary thromboembolism secondary of 70% Degree acid Burn. The appellant and his co-accused in their bid to escape arrest went to a native Doctor to perform ritual to cover their tracts but were eventually arrested and charged for the murder of the deceased having been the last to be and seen with the deceased before he met his death and having no satisfactory explanation as to how the deceased met his death.
In his brief of argument in support of this appeal, learned counsel for the appellant, D. I Iboroma Esq. in summary contended that the learned trial judge did not properly and holistically evaluate exhibits C1, C2, and D, the extrajudicial statements of the appellant and his co-accused person. He submitted that the learned trial judge had a duty to look at the said exhibits as a whole and not pick and choose therefrom. He cited EMIOWE v. THE STATE (2000) 1 NWLR (PT.641) 408 at 421 para f-h; P.T.F V. W.P.C. LTD (2007) 14 NWLR (PT.1055) 478 at 499 para A-8. UDOH V. THE STATE (1994) 2 NWLR (PT.329) 655 at 683.
The circumstantial evidence in this case counsel submits did not irresistibly point to the guilt of the appellant. He further submitted that trial courts are enjoined to be cautious before returning a conviction on circumstantial evidence. He cited the case of EBRE V. THE STATE (2001) 12 NWIR (PT.728) 617 AT 540. That exhibit D1 is relevant and admissible in view of the fact that the militant George Adumu and 3 others are facing a murder trial for the death of the deceased. He contended that by Notice of Preliminary objection to exhibit D1 George Adumu claims Presidential amnesty as a Niger Delta Militant, counsel likened this to tacit admission of the murder of the deceased.
On his part, learned counsel for the respondent I. Otorubio Esq. in reply submitted, in summary that the prosecution has through positive and compelling circumstantial evidence proved the charge of murder of the deceased against the appellant beyond reasonable doubt. He contended that granted that the learned trial judge initially admitted exhibit D1 during the trial, but expunged same during the final judgment when he reviewed and evaluated the entire evidence before him. Counsel argued that the prosecution having proved the death of the deceased, that the death of the deceased resulted from the act of the appellant/accused and that the act or omission of the appellant which caused the death of the deceased was intentional with knowledge that death was the probable consequence, that the learned trial judge was right in convicting the appellant and contended that case the trial court has properly evaluated evidence, the appellant court should not interfere, moreso as the findings were in no way perverse. He cited ABEKE V. STATE (2007) 9 NWLR (PT.1040) 343, ISIBOR v. STATE (2002) 4 NWLR (PT.758) 741 at 758-759. SULE V. STATE (2009) 17 NWLR (PT.1169) 33 at 57, among numerous other cases.
The four issues formulated by appellant’s counsel in my view captured the entire picture of this appeal, I will therefore use the said issues already enumerated in this appeal in the determination of this appeal. To that extent, issues 1-3 are interwoven and so I will take the said issues 1-3 together. If issues 1-3 are resolved against the respondent, then there may be no need to go into the 4th issue.
It is common ground that there is in existence charge No.PHC/348CR/2010. The state v. George Adumu & 3 ors. It was earlier admitted as exhibit DL by the learned trial judge, but later expunged in the judgment. George Adumu described as a militant was charged along with 3 others with murder etc. One of the deceased persons in exhibit D1 is Isaiah Bibibama.
The charge which gave rise to this appeal is charge No.PHC/1784CR/2009: The State v. Chief Evasmus Amayanabo & Anor., in that charge the deceased is Isaiah Bibibama Amah.
The learned trial judge at page 247-248 of the records stated
“…there was even no credible evidence to show that the person Isaiah Bibibama in exhibit D1 refers to the same person as Isaiah Bibibama Amah…”
From the records PW1, PW2 and DW2 and DW2 all testified to the fact that Isaiah Bibibama Amah and Isaiah Bibibama refer to the same person.
At page 149 of the Record of Appeal PW1 stated:
“By 12noon I was in my house when one Chief B. D Amah and one Mr. Enoch Israel came to report that they have lost their first son…”
At page 156 of the records PW2 also testified thus:
“………. The C.D.C Chairman then directed the father of the deceased Chief Amah to go and report the matter to the police…”
DW1 in his own testimony at page 183 of the records stated:
“……. I know Chief Bibibamah-Amah the father of the Deceased ……..”
DW2 also at page 197 of the records testified thus:
“… I know the father of the deceased he is Chief Bibibemo …”
It is therefore not in doubt that the name Isaiah Bibibama Amah and Isaiah Bibibama refer to the same person i.e the deceased and that both names are used interchangeably.
It is in evidence that the father of the deceased according to PW3 at page 109 of the records mentioned George Adumu as one of those who threatened to kill the deceased when he stated:
“The father of the deceased called the following names as those who threatened to kill the deceased: Timothy Sobere Etete (alias commander) George Adumu, Wellborn Isaiah, Dede Opiri and Walter Alali.”
The learned trial judge referred to George Adumu in his ruling on the 22/7/2010. See pages 185 – 186 of the record where he stated inter-alia thus:
“…in the instant case, the charge against the Accused persons is the murder of the deceased. I have already admitted charge against one George Adumu and others in a similar charge with the murder of the deceased and other persons as an exhibit.”
It is clear that the appellant tendered exhibit D1 as part of his defence to show that some other persons George Adumu and 3 other were also being charge with the murder of the deceased in charge No. PHC/348CR/2010. STATE V. GEORGE ADUMU & 3 ORS’
In the same ruling of 22/7/2010 precisely at page 185 of the records the learned trial judge held thus:
“..I have considered the objection and the response of counsel to the respective parties and I am satisfied that the document was duly certified as a public document and it is both relevant and admissible in evidence and it is admitted in evidence and marked as exhibit D1.”
He however expunged the said exhibit D1 in his final judgment at page 247 of the records when he wrote:
“I therefore find as a fact that without the proof of evidence exhibit D1 is of no moment and inconsequential in the assessment and evaluation of relevant probative evidence in this case and is hereby discountenanced as the mere counts in the information in exhibit D1 is in law grossly insufficient to support any evidence of linkage between the accused persons named in the counts with the offences alleged…”
In the instant appeal, it is obvious to me that the essence of tendering exhibit D1 was to create doubt in the mind of the court that the circumstantial evidence against the appellant was not compelling, cogent and did not point to the guilt of the appellant. This he can do by introducing evidence that is not compelling. Where the circumstantial evidence points to another person, the defence has succeeded in creating doubt in the mind of the court and need not prove the guilt of that other person.
“circumstantial evidence may sometimes be conclusive, but it must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another. It is also necessary before drawing the inference of the accused guilt from circumstantial evidence be sure that there are no other co-existing circumstances which would weaken or destroy the inference.”
See EBRE v. THE STATE (2001) 12 NWLR (Pt.738) 617 at 640 per Achike JSC.
The law requires that the guilt of an accused be proved beyond reasonable doubt and where there is reasonable doubt, the accused must be given the benefit of the doubt. See the STATE v. EMINE (1992) NWLR (PT.256) at 658. See also section 138 (1) of the Evidence Act (same as section 135 of the Evidence Act 2011.In the instant appeal, by leading evidence to show that George Adumu and 3 others were charge No.PHC/348CR/2010 for the murder of the same deceased, Isaiah Bibibama Amah, the appellant (defence at the court below) has not only created a co-existing circumstance, but has also created doubt in the mind of the court as to who killed the deceased. Was it George Adumu & 3 Ors. as in charge NO.PHC/348CR/2010, or was it the appellant Chief Evasmus Amayanabo and his co-accused as in charge No. PHC/1784CR/2009.?
The prosecution even had doubts as to who killed Isaiah Bibibama Amah. This they demonstrated by charging two sets of people with the murder of the deceased.
In the circumstance, I resolve issues 1-3 against the respondent and in favour of the appellant. Consequent upon this and as I stated earlier, there is no need dwelling on issue No. 4. The grounds of appeal fail. Appeals are each allowed. The judgment of the lower court delivered on 26/3/12 the conviction and sentence of each appellant are hereby set aside. The appellants each are discharged and acquitted.
EJEMBI EKO, J.C.A.: Exhibit D1, was admitted in evidence of page 185 of the Record. The trial court identified this document at page 247 of the Record as (sic) “a certify copy of Information in PHC/348CR/2010: THE STATE v. GEORGE ADUMU & OTHERS in which in count B George Adumu and others are alleged to have murdered one Isaiah Bibibama in May 2008”. The said Exhibit D1 was, however, later discountenanced by the learned trial Judge of pages 241 -148 of the Record on the ground inter alia that –
as the mere counts in the information in Exhibit D1 is in law grossly insufficient to support any evidence of linkage between the Accused persons named in the Counts with the offences alleged and this perhaps may explain why the absence of proof of evidence is fatal to objection to the granting of bail to a person charged even with a capital offence as in law it is on the proof of evidence a court considering such an application will look to see whether there is any evidence linking such an Accused Person/Applicant. Curiously, there was no credible evidence to show that the person Isaiah Bibibama in Exhibit D1 refers to the same person as Isaiah Bibibama Amah as the attempts to do so only by the DW.3 fell flat on its face in the absence of any such evidence either of the Accused persons or pw.2, the only relation of the deceased that testified in this case or the father of the deceased who was not called by any of the parties in this case.
The state of the law, extant at the time of the trial of the accused/Appellant, did not imposed on the accused persons the burden of Proving their own innocence. Rather, by Section 36 (5) of the 1999 Constitution, read together with Section 137 (1) of the Evidence Act, 1990 CFN (now S.135 (1) Evidence Act, 2011) every person accused of a criminal offence shall be presumed innocent until he is proved guilty and his prosecutors ore enjoined to prove his guilt beyond reasonable doubt’ The requirement of proof of evidence in the criminal procedure is not therefore for the accused person to prove his innocence. It is filed in furtherance of the obligation on the prosecution to discharge the burden placed on them by Section 36 (5) & (6) of the 1999 constitution. Subsection (6)(b) of Section 36 of the Constitution, for purposes of audi atteram partem, obligates the prosecution in the following words:
36. (6) Every person who is charged with a criminal offence is entitled to –
(a) – – ——— ———————————-
(b) To be given adequate time and facilities for the preparation of his defence.The proofs of evidence in criminal procedure are made available to the accused by his prosecutors by dint of and pursuant to the dictates of Section 36 (6) (b) of the 1999 Constitution. There is no such obligation on the accused to file and make available to the prosecution proofs of evidence. The learned trial judge seems to have got it wrong here when he discountenanced Exhibit D1 on the grounds inter alia that the said Exhibit D1, “without the proof of evidence is of no moment and inconsequential in the assessment and evoluation of relevant probative evidence in this case”.
The trial court seems also to miss the purport of Exhibit D1. The defence had produced Exhibit D1 lot only to contradict the prosecution that they killed the deceased, but also to demonstrate that reasonable grounds exist to believe that some other persons killed the some deceased person. The essence of Exhibit D1 is also to demonstrate that even the prosecution had reasonable doubt that the accused persons, the present Appellants, caused the death of the deceased. The law is trite that if at the close of the criminal trial the totality of the evidence causes the Judge to doubt the guilt of the accused person, the benefit of such doubt must be given to the accused person. See ONUOHA v. THE STATE (1989) 21 SC (pt.II) 115. The evidential duty of the accused or his defence team is to show that reasonable doubts exist as to his guilt. He does this by cross-examination of prosecution witnesses or through defence evidence including documentary evidence, like Exhibit D1, in this case. While discountenancing Exhibit D1 the trial court had opined that there was “no credible evidence to show that the person Isaiah Bibibama in Exhibit D1 refers to the same the person Isaiah Bibibama in Exhibit D1 refers to the same person (known) as Isaiah Bibibama Amah as attempts by the Dw.3 fell flat on its face in the absence of any such evidence from the accused persons or pw.2”. The proof of evidence and the totality of the evidence do not support this finding which I think is perverse. I do not think there was any dispute as to the identity of the deceased who was variously referred to in the proofs of Evidence and the evidence of the trial court as Isaiah Bibibama or Isaiah Bibibama Amah. That is the person the prosecution and defence witnesses simply referred to as the deceased. The witnesses were another ad idem that set of suspects or accused persons including George Adumu were also accused of murdering the same deceased person. Exhibit D1 merely corroborates the fact that George Adumu and others were being prosecuted on another information or charge No: PHC/348CR/2010 before another High court of Rivers State for the same murder of Isaiah Bibibama Amah or Isaiah Bibibama which the present appellants were prosecuted and convicted on charge No. PHC/1784CR/2009. It is clear that the Information in charge No. PHC/348CR/348CR/2009 was later in time to the charge No.PHC/1784CR/2010. This development smacks of not only abuse of process on the part of the office of the attorney- General of Rivers State; it demonstrates the level of uncertainty, confusion and doubt even in the mind of the prosecuting authority. In my judgment, therefore, Exhibit D1 had created reasonable doubt as to the guilt of the Appellants for the murder of Isaiah Bibibama or Isaiah Bibibama Amah.
The existence and production of Exhibit D1 constitute material evidence that creates reasonable doubt that the Appellants committed the alleged murder for which they were convicted. The learned trial judge was therefore in error not to have resolved the benefit of the doubt in their favour.
I read in draft the judgment of my learned brother, C. E. NWOSU-IHEME, JCA just delivered in these two appeals. I agree that the appeals, having substance, ought to be and is hereby allowed. The conviction and sentence of the Appellants, each, are hereby set aside. In their stead an order of discharge and acquittal is hereby entered for each of the Appellants. And that shall be the order of the trial court in the charge No.PHC/1784CR/2009.
MODUPE FASANMI, J.C.A.:I had the opportunity of reading in draft the lead judgment of my learned brother C. E. Nwosu-Iheme J.C.A. just delivered.
I agree entirely with the reasoning advanced to arrive at the conclusion. I subscribe to the consequential order contained therein.
Appearances
D. I. IboroiviaFor Appellant
AND
I. Otorubi DPP Rivers State with O. Evbodi (Miss) State Council Rivers StateFor Respondent
