CHIEF FYNEFACE NNUNUKWE & ORS v.THE STATE(2002)

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CHIEF FYNEFACE NNUNUKWE & ORS v.THE STATE

 (2002)LCN/1312(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 11th day of December, 2002

CA/PH/272/2000

 

JUSTICES

JAMES OGENYI OGEBE   Justice of The Court of Appeal of Nigeria

MICHAEL EYARUOMA AKPIROROH   Justice of The Court of Appeal of Nigeria

ABOYI JOHN IKONGBEH   Justice of The Court of Appeal of Nigeria

Between

 

  1. CHIEF FYNEFACE NNUNUKWE
    2. NATHANIEL IBENNUNUKWE
    3. CLEMENT ANYALEBECHI NJOKU Appellant(s)

AND

THE STATE Respondent(s)

AKPIROROH, J.C.A. (Delivering the Leading Judgment): The appellants, Fyneface Nnunukwe, Nathaniel Ibe Nnunukwe and Clement Anyalebechi Njoku were convicted of the murder of Hycienth Onyekazi Obilor hereinafter called the deceased by the High Court of Rivers State sitting at Isiokpo and sentenced to death contrary to section 319(1) of the Criminal Code, Cap. 30 Laws of the Eastern Nigeria, 1963 applicable in Rivers State on the 3rd day of July, 2000.
The prosecution called eleven witnesses while each of the appellants gave evidence in his defence and called no witness.
The facts of the case for the prosecution as presented in the court below can be summarised as follows:
On 22/2/95, PW6, Joshua Nwankwoala had his birthday party and appointed the deceased the chairman. At the end of the party, PW3 Christian Nwankwoala took the deceased at his request to his girl friend’s house (PW8) in the premises of the 1st appellant. The deceased told him to come back to pick him at 5 a.m. the following morning and he left. PW8, Rose Obinna, the deceased’s girlfriend was living in the premises of the appellant. On 22/7/95, as she was sleeping in the house, she was woken up by the voice of the deceased calling her and she opened the door to see what was happening to him but was ordered by the 2nd appellant who threatened to shoot and kill her if she came out. She opened the door a second time and saw the 2nd appellant beating and dragging the deceased in front of her door step towards the 1st appellant’s frontage under a pear tree. As a result of the threat by the 2nd appellant to shoot and kill her, she opened the louvres in her room and saw the appellants beating up the deceased. Her window faced the 1st appellant’s building and her house was at the centre of the premises and she saw clearly what happened to the deceased.
PW1, Nwairegbu Appolos testified that on 23/7/95 at 6 am he was on his way to board a commuter bus at Umuaturu junction and as he approached the junction of Umuola, he met the 2nd and 3rd appellants carrying something. When he got closer to them, he discovered that it was a human being that they were carrying. On enquiry, the 2nd appellant told him that the person got drunk in their yard and that they were carrying him to where they would cool his body. At day break, he heard people shouting that somebody had been killed and dumped at Umuola junction. He returned to the spot and observed that the person was already dead and identified the deceased whose body was abandoned in a collection of water near Umuola junction as his brother. He said that when he saw the 1st and the 2nd appellants carrying the deceased, one was holding his body below his arms while the other was carrying his two legs.
The defence of each of the appellants is a total denial of the offence.
At the end of the trial and in a reserved and considered judgment, the learned trial Judge convicted each of the appellants and sentenced each of them to death by hanging.
Dissatisfied with their convictions, each of them has appealed to this court and learned Senior Advocate filed a brief of argument for each of them and a joint reply for all of them and distilled only one issue for determination as follows:

“1. Whether upon the correct appreciation of the law and proper appraisal of the evidence before the court, the learned trial Judge was right in holding that the prosecution proved that the appellant was guilty of the crime of the murder of Hycienth Onyekazi Obilor beyond reasonable doubt?”

Learned counsel for the respondent also filed a brief of argument and framed one issue for determination as follows:

“Whether in all the circumstances of this case the prosecution proved the case of murder against the appellants beyond all reasonable doubts?.”

Learned senior counsel for the appellants submitted that the learned trial Judge was wrong in relying on the evidence of PW8 in convicting the appellants. He then referred to the first two statements she made to the Police in which she denied seeing the deceased in her house and the evidence of PW3 who said that he took the deceased to the house of PW8, his girlfriend on 23/7/95 and requested him to come back at 5 a.m the following morning to pick him. PW8 in her 3rd and 4th statements which she made to the Police, she changed and claimed that she heard the deceased shout her name “Rose” between 11 p.m and 12 p.m in the night of 22/7/95, and that when she opened her door the 2nd appellants threatened to kill her if she came out and banged her door and peeped through the louvres of her window and saw the appellant dragged and beat up the deceased at the frontage of the 1st appellant’s house. He also referred to the evidence of PW1 which the learned trial Judge relied on in convicting the appellants because he did not make his statement to the Police after a period of one month of the murder of the deceased by the appellants whom he claimed to be his brother, stressing that the long delay in making his statement to the Police rendered his evidence unreliable. He further submitted that the evidence of PW1 and PW8 rendered the case for the prosecution most unreliable and the learned trial Judge was wrong in convicting them on their evidence and relied on the cases of Onuchukwu v. The State (1998) 4 NWLR (Pt. 547) 576 at 589; Joshua v. The Queen (1964) 1 ANLR (Pt. 3) p. 1 and Onubogu v. The State (1974) 9 SC 1 at 19.
He further submitted that if the learned trial Judge had properly evaluated the evidence of PW8 which he relied on in convicting the appellants, he would have come to the irresistible conclusion that inspite of the explanation of the inconsistency in the evidence of PW8 and her first statements to the Police that her evidence remained unreliable and ought not to have been relied upon by him in convicting the appellants and that the case of Babalola v. The State (1989) 4 NWLR (Pt. 115) 264 is inapplicable to the facts of this case.

It was also his submission that the case was poorly investigated by the Police because none of the tenants living in the compound with PW8 was contacted and the defence of alibi put up by the 1st accused in his statement to the Police to the effect that on the night of the incident, he was in his house with his wife and houseboy before they went to bed at 10 pm and he woke up at 5.45 a.m. He contended that where an accused put up a defence of alibi as was done in this case by the 1st appellant, it is imperative that it must be investigated by the Police. He also relied on the cases of Onuchukwu v. The State (supra) and Odili v. The State (1977) 4-5 SC 1 and Onafowokan v. The State (1987) 3 NWLR (Pt. 61) 538. He finally urged the court to allow the appeal and set aside the judgment of the lower court.
At the hearing of the appeal, learned counsel for the respondent abandoned issues I, III and IV and were accordingly struck out together with the arguments therein leaving only issue II which I have earlier reproduced above.
On issue II, learned counsel for the respondent relied on the evidence of PW8 the deceased’s girlfriend who saw the appellants beating him and the evidence of PW2 who saw the 2nd and 3rd appellants carrying and dragging the body of the deceased along Umuola Junction where they dumped it which was corroborated by the evidence of PW1 and PW4. He further submitted that the first two statements made by PW8 were cautionary and should be ignored and relied on the case of Babalola v. The State (supra). He further submitted that the first statements are inadmissible in evidence and as such there are no contradictions in the evidence of PW8.
It was also his submission that the fact that PW2 reported the incident he saw on 23/7/95 to the Police on 28/8/95 was neither here nor there and relied on the case of Ogunlana v. The State (1995) 5 NWLR (Pt. 395) 266 stressing that the facts of the case of Onuchukwu v. The State (supra) are not applicable to the facts of this case because one month and two months according to him are not the same in this space age and cited in support the case of Fawehinmi v. N.B.A. & Ors No.2 (1989) 2 NWLR (Pt. 105) 558 and 586 and urged the court to dismiss the appeal.
In the reply brief, learned senior counsel for the appellants submitted that the issue of the statements of PW8 being cautionary statements and that of their admissibility never arose before the learned trial Judge and was never pronounced upon by the court and as such the respondent cannot raise it for the first time not being the reason for the finding of the learned trial Judge and in the absence of a respondent’s notice filed by the respondent. It was also his submission that the case of Babalola v. The State (supra) relied upon by counsel for the respondent is of no assistance to him because the PW8 was not an accused when she made her first two statements but it was her evidence as a prosecution witness which was contradictory to her first statements. He further submitted that the statements are admissible in evidence because they are not confessional statements. On the case of Ogunlana v. The State (supra) relied on by counsel for the respondent, he submitted that it dealt with the issue of complicity and not credibility as in this case and urged the court to allow this appeal and set aside the decision of the court below.
For the prosecution to establish a charge of murder, against an accused person, it must prove the following:
(a) That the accused killed the deceased.
(b) That the killing was unlawful (Actus Reus)
(c) That the accused unlawfully killed the deceased in one or the other circumstances enumerated in section 319 of the Criminal Code.
To establish that the accused killed the deceased, the prosecution must adduce cogent evidence linking the accused with the death of the deceased showing either a positive act or a negative omission of the accused causing injury to the deceased, which in turn resulted directly in the deceased’s death. See Onah v. The State (1985) 3 NWLR (Pt. 12) 236 at 237 per Oputa, J.S.C.
I consider it pertinent at this stage to refer to the wise observations of Obaseki, J.S.C. in Onah v. The State (supra) before considering the issues raised in this appeal. At page 244, he said:
“The High Court and all courts of law are duty bound to give critical examination to evidence adduced before them and ensure that the innocent are not punished or the guilty set free. They should act on the evidence and not hunches, rumour or suspicion so as to ensure that justice in its purest form is administered in the courts to all and sundry.”
Bearing in mind the essential ingredients to be proved in a charge of murder as stated by Oputa, J.S.C. and the wise observations of Obaseki, J.S.C. in mind, I will now proceed to consider the case made against each of the accused persons which the learned trial Judge relied on in convicting them. The evidence led against each of the appellants is the same and as such I do not have to consider the case made against each of them separately.
The learned trial Judge relied heavily on the evidence of PW1, PW3 and PW8 in convicting the appellants. I will first of all consider the evidence of PW8, whose evidence the learned trial Judge relied on heavily in convicting the appellants. This witness made four statements under caution having been arrested and detailed by the police on the suspicion that she murdered the deceased who was her boy friend. In her first two statements which she made to the Police, she denied seeing the deceased in her house on the night of the incident let alone how he met his death. A relevant portion of her statement which she made to the Police on 25/7/95 read as follows:
“I know Onyenkazie Obilor. He is late. He died on Sunday morning that is on 23/7/95 … He did not die as a result of sickness. I heard that he was killed by some person or persons between the hours of 5 and 6 o’clock in the morning of Sunday, 23/7/95, I was in my house when I heard a knock at my door, when I opened my door, I saw a man who greeted me and said that he was asked by Hycient Onyenkazie Obilor to come to my house to pick him Obilor. I told the man that Hycient Onyenkazie Obilor did not come to my house and that I did not see him …”

In her later statements to the Police, she changed her position and claimed that she heard the deceased shout her name Rose! Rose! Rose! Between 11 and 12 o’clock in the night of 22/7/95 and that when she opened her door, the 2nd appellant threatened to kill her if she came out and she banged her door and peeped from the louvre window of her room where she saw the appellants dragged and beat the deceased at the frontage of the 1st appellant’s house which is about 20 feet from her house.
How did the learned trial Judge evaluate the evidence of pw8?
At page 206 line 26-34, page 207 lines 1-30, page 208 lines 1-21, he said:

“I believe Rose that she was infact threatened by the 2nd accused person that night (who had earlier warned her to stop the deceased from coming to visit her in their yard). I believe her that when PW3 came the following morning to inquire of the deceased, the 2nd accused, who apparently kept a watchful eye on her from the time of the incident, drew near her to hear if  she would tell PW3 what happened in the night. I believe her that it was under such an intimidation that she lied to PW3 that she did not see the deceased.
I believe her that at the Okechi Police Station she was constantly intimidated and threatened by the 1st accused person and his relations. I believe her that the presence of 1st accused person’s relations at the scene where she was being interviewed by the Police was frowned at by the Police about thrice. And I believe her that she was  forced by the threat to make her 1st and 2nd statements to the police in which she denied knowledge of what happened to the deceased that night. That threat continued until she secured protection of the Police at the State Investigation and Intelligence Bureau, Port Harcourt, and it was after that the she was at liberty to make her voluntary statement.
I do believe that 1st and 2nd accused persons that they did not threaten her as she alleged. As I said earlier Rose, in her first two statements did not only fail to say anything incriminating against the accused persons, but denied seeing the deceased that night. But in her later statements to the Police, and in her testimony in court, she incriminated the accused persons.
Those two sets of versions are definitely in conflict. The law is that when an eye-witness is caught in such a conflict, a court must be cautions in accepting his evidence given later implicating others unless a satisfactory explanations is given for such. See Onuoha v. The State (1989) 2 NWLR (Pt.101) 23.
But in this case, Rose had the opportunity, and utilised it during trial, to explain why she did not tell PW3 what had happened to the deceased the previous night; why she was frying “bonus” in the morning instead of going to report to anyone what happened to the deceased in the night; and why she did not tell the Police in those earlier statements the encounter the deceased had with the accused persons in that night.
Any statement obtained or written under threat of violence or tricks cannot be a valid statement or a free agent, and such ought to be ignored.
See Babalola v. The State (1989) 4 NWLR (Pt. 115) 264. I am satisfied with the explanation given by PW8 of the circumstances under which –
1. She denied seeing the deceased on 22/7/95 when PW3 (the cyclist) asked her of him.
2. Why she was frying “bonus” the following morning instead of raising alarm or going to report the incident to anyone and
3. Why in her first two statements to the Police she denied knowledge of what happened to the deceased in the night of 22/7/95.
I will therefore, in considering whether the offence as charged against the accused persons has been proved by the prosecution, ignore those areas of her statements and conduct.”

The learned trial Judge in the appraisal of the evidence of PW8 found her explanations in court why she did not mention the appellant’s names as the people who killed the deceased on that fateful day impressive and believed her evidence. Curiously enough, these explanations as to the threat to her life at the hands of the appellants were not even contained in her later statements to the Police. It was only in court that she gave evidence about the threat to her life. If her evidence in court about the threat to her life by the appellants when she made her first statements is true, why did she not tell the Police in her later statements? The learned trial Judge stated the law correctly when he said at page 207 lines 22-26 which I have earlier reproduced above when he said:
“the law is that when an eye witness is caught in such a conflict, a court must be cautions in accepting his evidence given later implicating others unless a satisfactory explanation is given for such. See Onuoha v. The State (1989) 2 NWLR (Pt. 101) 23.”
In the case of Onuoha v. The State (supra) relied on by the learned trial Judge Fatayi Williams, J.S.C. delivering the judgment of the court said at pages 18-19:
“Again, there is the decision of this court in the case of The Queen v. Joshua (1964) 1 All NLR p. 1 at page 3 where we referred to the decision in R v. Golder (1960) 1 WLR 1169 with approval and also observed that where a witness has made previous statements inconsistent with the evidence given at the trial, the court have been slow to act on the evidence of such a witness. In our decision in the case of The Queen v. Joshua, we referred, in particular, to the observation of Lord Parker L.C.J in his judgment in R v. Golder (supra) on the point. The observation which is at page 1172 of the said judgment reads:
‘In the judgment of this court, when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous statements whether sworn or unsworn, do not constitute evidence upon which they can act.”
See also The Queen v. Asuquo Akpan Ukpong (1961) 1 SCNLR 53; (1961) All NLR 25; suffice therefore to say that the learned trial Judge after finding that the statements of PW8 wherein she alleged that she saw the appellants committing the crime charged were in conflict with her earlier statements in which she denied that she saw the deceased on the night of the murder and that she knew how he was murdered were in violent conflict, and yet he proceeded to hold that he believed her explanation for the conflict, which was not explained in her later statements to the Police but only in her evidence in court. Besides, the question of explanation is limited to conflict between the evidence of two witnesses and conflict or inconsistency between the oral evidence of a witness and his previous statement. This is clear from page 20 of the decision in Onubogu v. The State (supra) where the court said:
“even if the inconsistency in the testimony of the two witnesses can be explained, it is not the function of the trial Judge, as was the case here, to provide the explanation. One of the witnesses should furnish the explanation.”

Suffice therefore to say that if the learned trial Judge had properly evaluated the evidence of PW8, he would have come to the irresistible conclusion that inspite of her unconvincing explanation, her evidence remained unreliable and he ought not to have relied on it in convicting the appellants as her story, to say the least is very doubtful.
The submission of learned counsel for the respondent to the effect that the 1st two statements made by PW8 were defacto statements but not admissible evidence, the last two are statements dejure and admissible to use his own words is totally misconceived and the case of Babalola v. The State (1989) 4 NWLR (Pt. 115) 64 cited in support of his submission is not applicable. This is more so when the four statements were tendered by the prosecution in the court below. Babalola’s case was a case where the appellants who were charged with the offence of forgery and obtaining by false pretences were convicted for stealing by trick which was upheld on appeal and as such it has no bearing on this case.
I will now turn to the evidence of PW1, the brother of the deceased who gave evidence to the effect that on 23/7/95, about 6 a.m. he was on his way to board a commuter bus at UMUATURU junction and as he approached Umuola junction, he saw the 2nd and 3rd appellants carrying something which he later discovered to be a human being. On enquiry, the 2nd appellant told him that the man was drunk and they were taking him to a place to cool him. At day break, he heard people shouting that somebody was killed and dumped at Umuola junction and he ran there and identified the deceased to be his brother who was abandoned there. It is note worthy that PW1 did not make a report to the Police about what he saw on 23/7/95 until 28/8/95 a period of one month. At page 2 of exhibit D1 (the proceedings on 17/6/96) PW1 said:
“How I got myself involved in this case was when the villagers of Okebi I gathered and poured drinks that people who killed this man or saw who killed him and refused to say it, the gods of the lands should kill such a person. It was at this juncture I came out and narrated everything I saw to the villagers. I later went to SIIB Port Harcourt to report …”
If the villagers of Okebi I had not gathered and sworn, he could have kept how the deceased met his death to himself. In the case of Onuchukwu v. The State (supra), the Supreme Court refused to rely on the evidence of someone who is said to be an eye witness but who failed to report what he saw two months after the incident. One would have expected PW1 to make a report of what he saw to the Police that morning or his village head, but he chose to keep it to himself. Besides, his evidence that he saw the 2nd and the 5th appellants dragging a body of a person whom he later recognised as the deceased contradicts his evidence that they were carrying the deceased when he saw them at the Umuola junction on that fateful day.
In evaluating the evidence of PW1, the learned trial Judge said at page 212 lines 1-6 and at page 215 lines 20-21 of the records:
“Earlier PW 1 (Appollos Nwairegbu) had told the court, which evidence, I have believed that, he saw the 2nd and 5th accused persons early that morning on 23rd July, 1995 dragging the body – one holding it below the arms and the other holding his legs … Having believed PW 1 and PW8, I reject the submission of learned defence counsel that their evidence was fabricated …”
If the learned trial Judge had properly evaluated the evidence of PW1 who did not make a report of what he saw on 23/7/95 after one month, when the villagers swore to the gods of their land to kill the person who killed the deceased or the person who saw how he was killed but refused to tell them, his evidence ought not to have been believed by the learned trial Judge because it is most unreliable having kept what he saw on the day of the incident to himself until the villagers swore.
The evidence of PW3 does not improve the case for the prosecution because his evidence was that he took the deceased to the house of PW8 on 22/7/95 and he instructed him to come and pick him at 5 a.m the following morning. He did not know how the deceased met his death. PW8 even denied in her first two statements that PW3 brought the deceased to her house on 22/7/95. Besides, she maintained that she only became aware of the presence of the deceased when he was shouting her name Rose! Rose! Rose! She did not say that PW3 entered her room. Suffice it therefore to say that his evidence is unreliable and learned trial Judge was wrong in convicting the appellants on it.

The 1st appellant in exhibit P1, his first statement to the Police said that he was not present at the scene where the deceased was killed and that he went to bed at about 10 p.m on 22/7/95 and did not wake up until 5.45 a.m. In exhibit P4 another statement which he made, he gave details of his full activities for Saturday 22/7/95 before he went to bed with his wife Alice Anunkwe, and their house boy at 10 p.m and woke up at 5.45a.m. He also denied participating in the murder of the deceased. The Police made no effort to investigate the alibi put up by the 1st appellant. The duty of the Police is emphasised in the case of Onuchukwu v. The State (supra) at page 591 where the court said as follows:
“Once the defence of alibi is put up it is for the Police to investigate it properly because failure to do so raises reasonable doubt in the mind of the Tribunal and lead to quashing the conviction. See Odili v. The State (supra); Onafowokan v. The State (1987) 3 NWLR (Pt. 61) 538.”
See also Bozin v. The State (1985) 2 NWLR (Pt. 8) 465 at 481; Okosi v. The State (1989) 1 NWLR (Pt. 100) at 642.
From all what I have been saying, there is merit in this appeal and it is hereby allowed. I hereby set aside the decision of the learned trial Judge dated 3/7/2000 convicting the appellants. I also set aside the sentence of death passed on each of them and in its place, I enter an acquittal for each of them and each of them is accordingly discharged.

OGEBE, J.C.A.: I read in advance the lead judgment of my learned brother Akpiroroh, J.C.A. just delivered and I agree entirely with his reasoning and conclusion. I adopt the judgment as mine.

IKONGBEH, J.C.A.: I have read in draft the lead judgment of my learned brother Akpiroroh, J.C.A., just delivered. I agree with his reasoning and conclusion. I too allow the appeal.
I abide by the orders made by him therein including the orders as to costs.

Appeal allowed.

 

Appearances

  1. C. Ukala, SAN (with him, M.S. Agwu, Esq.)For Appellant

 

AND

I.I. D. Opuminji, Esq.,For Respondent

 

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